Running from the Police is Not Sufficient Probable Cause to Arrest Suspect; Weapons Found in Apartment Suppressed.

The federal Third Circuit appellate panel held that the federal District Court erred by not suppressing weapons found in Mr. Navedo’s apartment after Newark police detectives after him arresting him as he was entering his apartment.

In the United States v. Navedo two Newark police detectives were conducting an undercover operation when they saw an individual (Pozo) walk over to Mr. Navedo open a book bag, pulled an object which appeared to them as a handgun.  The detective seeing this ran after Pozo and Navedo catching and tackling Navedo as he was attempting to enter his apartment.  The detectives claim that the apartment was open and that they tackled him inside the apartment (you really believe this).  Navedo was immediately cuffed and inside the apartment were numerous handguns and rifles which the detectives claim were in plain view (sure).

A motion to suppress was filed, and denied by the District Court, and Navedo appealed to the Third Circuit that the detectives did not have probable cause to arrest him because mere flight is sufficient to arrest a suspect without probable cause.  The court agreed with Navedo holding that under the totality of the circumstances there was no evidence that Navedo was engaged in any criminal activity.  Specifically, Navedo did not hold the gun, did not initiate the encounter with Pozo, and did not appear to making a purchase of the handgun, that the police had no right to arrest him, even if Navedo ran.  In short, the appeals panel held that the detectives were in essence attempting to transfer the reasonable suspension which they had for Pozo on Navedo.  The court further relied on Illinois v. Wardlow, 528 U.S. 119 (2000), which held that flight from the police is not an automatic reason or reasonable suspicion for a brief “Terry Type” detention, because there are many reasons why someone might want to get away from a police officers.  In any event, they held that even if they had reasonable suspicion to stop Navedo they certainly did not have probable cause to arrest him under these facts.

This is a good case for the defense because it encompasses many facts which regularly play out with strike force arrests in the Essex, Hudson, Union, Passaic, and Middlesex County strike forces which typically detain and arrest suspects without reasonable suspicion or probable cause.

If you are charged with a federal or state crime or disorderly person’s offense it is highly recommended that you seek the legal advice of an experienced New Jersey Criminal Defense Attorney, the Law Office of Vincent J. Sanzone, Jr.

Law Office of Vincent J. Sanzone, Jr.

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P.O. Box 261

Elizabeth (Union County), New Jersey 07207

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Dated: October 4, 2012

Motion to Suppress Evidence: How to Beat the Criminal or Driving While Intoxicated Charge in New Jersey

December 22, 2011, today, the Superior Court of New Jersey, Appellate Division in State v. Thomas W. Bernokeits, Jr., affirmed well established case law regarding the right of a police officer to order a motorist out of his vehicle in order to perform a field sobriety test.

In that case Mr. Bernokeits was driving in Seaside Heights, New Jersey (his first mistake), after spending some time at the “Bamboo Bar” (his second mistake).

Mr. Bernokeits vehicle was stopped as claimed by the police officer because the vehicle and tinted windows and a loud muffler.  Once pulled over, the officer asked Mr. Bernokeits whether he had consumed any alcohol beverages.

Of course, Mr. Bernokeits had the right to remain silent and not give a response, but he didn’t, and gave the standard usual reply, “I only had one beer" (his third mistake).

The officer then decided to order Mr. Bernokeits out of the vehicle to perform a field sobriety test.  The officer’s reason for that, according to his testimony, was that first, he smelled hard liquor on his breath and not beer, and second, he admitted that he had just left the “Bamboo Bar”, and third, it was late at night.

Mr. Bernokeits argued before the Appellate Division that the officer needed probable cause to ask him to perform the field sobriety test relying on the seminal case State v. Jones, 326 N.J. Super. 234 (App. Div. 1999).  In that case the appellate division held that the mere smell of alcohol emanating from the motorists breath or vehicle, and the admitting that alcohol was consumed, without more facts (for example the plain view sight of an open container), was insufficient to sustain probable cause to search the motor vehicle.  Therefore, Mr. Bernokeits argued that the police officer erred in requesting him to take the test because of the officer’s smell of alcohol on his breath.

The court rejected this argument, citing the State v. Adubato, 420 N.J. Super. 167, 181 (App. Div. 2011), which held that the officer requesting a motorist to submit to a field sobriety test, although a de facto arrest, does not need probable cause but only a factual basis for articulable reasonable suspicion that the motorist is driving while intoxicated or impaired.

The lesson of this case is that any motorist who admits to having any alcoholic beverages prior to operating a motor vehicle, and has consumed enough to leave traces of it on his breath can be required to perform a roadside field sobriety test to determine whether there is probable cause to arrest the motorist for driving while intoxicated.

Law Office of Vincent J. Sanzone, Jr.

December 22, 2011

CriminalDefenseNJ.com

Elizabeth, New Jersey

Tel. No. (908) 354-7006