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NJ Police Search Reversed on Appeal

27
Jan
2010

by in Criminal Appeals

In this recent NJ criminal appeal, the defendant lost while arguing that the standard for probable cause to arrest is a separate inquiry than that for probable cause to search.

State v. Richard Chippero, ? N.J. ?, 2009 N.J. LEXIS ? (December 29, 2009) – Suppression of evidence reversed, case remanded to Appellate Division for consideration of other issues. The opinion in State v. Chippero (I), 164 N.J. 3432 (2000), holding that defendant’s confession had to be suppressed because it was the product of an arrest not supported by probable cause, could not fairly be read to hold that there was no probable cause for the separate search of defendant’s home.

“We join those many courts in recognizing that probable cause to arrest and probable cause to search involve distinct and not necessarily identical inquiries. A finding of probable cause as to one does not mean that probable cause as to the other must follow, nor does the lack of one compel a finding that there is a lack of support for the other….

[A] court may find a lack of probable cause to arrest an individual and yet determine that probable cause exists to search the home where that individual resides.” In this case, there was probable cause for the search of the home because “Judge Figarotta was told that a disinterested person saw someone, within minutes of the estimated time of the homicide, run from the vicinity of the front area of the victim’s home to the premises at 49 Poe Road and enter it.

The person appeared sweaty, his clothing appearing wet and sticking to him as if from some sort of exertion. He appeared anxious to get out of his shirt, pulling at it to get it off of him as he entered the home. We know that the murder scene showed that the rape and stabbing of the victim required a not inconsiderable effort and that much blood was spilled…. We conclude that the issuing judge could have found from the record recited above that a reasonable probability existed to show that the person McMenemy saw may have had a connection with the crime and may have had on him, or on his clothing, evidence connected to the sexual assault and murder.” (Alison S. Perrone, Designated Counsel)

  • //www.judiciary.state.nj.us/opinions/supreme/A-50-08.pdf

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