I represented a client last week who was charged with possession of marijuana (under 50 grams) in Morris Plains Municipal Court located in Morris Plains, New Jersey. This is a disorderly persons offense in New Jersey which, if convicted, results in a permanent record, up to six (6) months in the county jail, up to a $1,000.00 fine, and a six (6) month driver’s license suspension. My client was stopped for careless driving and allegedly consented to the search of his vehicle which led to the seizure of marijuana and my client’s arrest. Upon my review of the discovery package provided by the State, it became clear that this was not a voluntary consent search and was an unlawful search without a warrant.

First, by way of background, a law enforcement officer must get a warrant to search a vehicle or a home in all cases unless a permitted exception to the warrant requirement exists. For example, “plain view” is a valid exception to the warrant requirement. If an officer approaches your vehicle and there is a bag of cocaine sitting on the passenger seat, this is a valid exception to the typical need to obtain a warrant to search your vehicle. The illegal contraband is in plain view and the criminality of the object is readily apparent. As such, the officer is legally permitted to seize said evidence and arrest you for same. Moreover, “consent” is another potential exception to the warrant requirement. If an officer approaches your vehicle and says that he smells marijuana, he is permitted to ask the driver for permission to search the vehicle. This consent must be voluntary and the officer must inform the driver that he or she has the right to refuse consent. Ordinarily, if the driver agrees to a search of his or her vehicle, the officer will provide the driver with a consent to search form which must be signed. Then, if any illegal evidence is seized based on the search, that evidence was lawfully obtained without a warrant based on a valid consent search.

In this case, the consent search was not valid. I was provided with an audio recording of the interaction between the law enforcement officer and my client wherein my client refused to consent to a search of his vehicle atleast fourteen (14) times over a 35 minute period. During that 35 minute period, the arresting officer summoned several other officers to the scene to try to convince my client to consent to a “voluntary” search of his vehicle. Further, my client was never Mirandized during this clearly custodial interrogation (he was not free to leave) and my client asked for an attorney atleast three (3) times during this 35 minute unlawful detention. Finally, after 35 minutes of badgering, my client signed a “voluntary” consent to search form and the marijuana was found in the vehicle.

I had a transcript made of the audio recording and filed a motion to suppress the illegally seized evidence based on this invalid consent search. There was nothing voluntary about the consent that was eventually given and, as a result, the consent was not valid and the State did not have a valid exception to the warrant requirement. For this search to be legal, the officer had to get a warrant to search the vehicle and he failed to do so. After conferencing the case with the judge and the prosecutor, all parties agreed that this search was not valid and the State agreed to dismiss the charges against my client.