A common question is whether police can approach a car and detain the occupants for questioning. The question plays out in reality when police subsequently find contraband, such as marijuana, in a motor vehicle. Was the search legal and valid, or can the marijuana be suppressed as evidence obtained in violation of my clients rights?
Two principal legal issues in this scenario are (1) did the police interaction with defendant rise to the level of an investigative detention; and, (2) was there a reasonable and articulable suspicion to justify any such detention. In other words, did this stop rise beyond a field inquiry to an investigative detention. See the New Jersey Appellate Division decision State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002).
The important distinction in police conduct is that a constitutionally permissible field inquiry occurs when an officer questions a citizen in a conversational manner that is not harassing, overbearing, or accusatory in nature. State v. Nishina, 175 N.J. 502, 510 (2003). On the other hand, when the police encounter results in a restriction on the person’s freedom of movement, the encounter rises to an investigatory stop. State v. Elders, 192 N.J. 224, 245 (2007). These issues arise from the Fourth Amendment to the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, which provide for “the right of the people to be secure in their persons…against unreasonable searches and seizures.”
An investigative stop, or detention, can occur even if the police interaction takes place when the citizen is already stationary, such as when a citizen is seated in a parked car. In considering the totality of circumstances involving police interactions with persons in parked cars, courts have specifically considered the manner in which the police approach a vehicle and the subsequent police conduct. See State v. Ellis, No. A-0235-14T2 (App. Div. April 9, 2015). The Ellis Court reviewed Professor LaFave’s summary on police contact with persons seated within a parked vehicle.
The mere approach and questioning of a person seated within parked vehicles does not necessarily constitute a seizure. However, the encounter becomes a seizure if the police action is of the type one would not expect in an encounter between two private citizens – boxing the car in, approaching it on all sides by many officers, or use of lights as a show of authority. That type of conduct may convert the event into a Fourth Amendment seizure. See Ellis; Wayne R. LaFave, Search and Seizure, 9.4(a) at 594-99 (5th ed. 2012).
I recently quoted a Police Officer in a case where he wrote in his Police Report “I then exited my vehicle to investigate.” He was on scene, undercover, in an investigatory detail. This was not a chance interaction resulting in a happenstance field inquiry. The Officer’s used their vehicle to block the individual’s car so that he could not move it at all, approached his car on both sides and beamed their flashlights into each of the rear view mirrors such that he was blinded and intimidated by their authoritative presence. In view of all the circumstances, a reasonable person would not feel free to leave – nor could they!
Questions that pre-suppose criminal conduct may also convert an otherwise benign field inquiry into an investigative stop, including the question “what are you doing here.” State v. Costa, 327 N.J. Super. 22, 31 (App. Div. 1999).
Facts matter. Police are allowed to conduct field inquiries and inquire as to general matters. However, if they intend to restrict a person’s ability to move, there must be a warrant or some exception to the requirement that they obtain a warrant from a Judge. Those exceptions usually fit within the legal term probable cause – did the police have probable cause, a well grounded suspicion, to believe that a person has committed or is committing an offense? The concept of what qualifies as probable cause has been the subject of many court decisions. Essentially, there must be more than a mere suspicion, and the Courts look to the totality of the circumstances. If a mushroom cloud of sweet smelling herb emanates from your vehicle as you say, “What’s up Bro” to a Police Officer, my defense might be focused on minimizing your sentence!
If you have a legal question regarding your 4th Amendment rights, or any other legal concern, please call the Law Office of Jay Weinberg.