In this recent NJ Criminal Appeal, the defense attorney successfully argued that a police search of a vehicle’s glove box was illegal.
State v. Ricardo Manuel Ortiz and Arnaldo A. Ortiz, unpublished opinion, App. Div. Docket No. A-4026-08T4 (December 28, 2009) – Suppression of evidence affirmed. Although the stop of the vehicle for having too-darkly tinted windows was justified, and the smell of unburned marijuana gave the police “a well-grounded suspicion that criminal activity was afoot,” “we conclude that sufficient credible evidence in the record supports the motion judge’s finding that the police lacked exigency to search the glove compartment without first obtaining a warrant, either by telephone or in person….[A]t all times, the occupants of the SUV complied with police directions, including moving their vehicle some distance from the scene. There was no indication they knew Arnaldo’s vehicle contained CDS, nor was any CDS in plain view. Far from presenting any threat to the officers’ safety or preservation of the evidence, one of the SUV occupants, a relative of defendants, was actually given the keys to Arnaldo’s Honda to take possession of the vehicle upon the defendants’ transport to jail….
Equally lacking is any indication that any delay occasioned by obtaining a warrant to search the car would have jeopardized either the officers’ safety or the integrity of the evidence…. Koeppen, upon opening the glove compartment and observing the bag, did not believe the bag contained a weapon of any kind. Even if Koeppen lawfully opened the glove compartment, there would have been no justification under the State’s theory for further searching the plastic bag, which did not appear on its exterior to contain any weapon therein….
Here, to avoid suppression as fruit of the poisonous automobile search, the State had to prove by clear and convincing evidence that the cocaine in Ricardo’s shoe and sock would have inevitably been discovered as a result of a search incident to a lawful warrant or an inventory search prefatory to his incarceration on that charge. Yet the State has offered no evidence — much less clear and convincing proof — of the circumstances attending Ricardo’s stationhouse search….
Moreover, there is no evidence to suggest that Ricardo would have been lawfully confined to a municipal or county detention facility, that he would not otherwise have been released on his own recognizance, or have posted bail if, in fact, bail had been set on the warrant charge. To the contrary, the record is silent even as to the underlying charge on which Ricardo’s outstanding warrant was based.” (Marc E. Lieberman)