recognizable as contraband. State v. Toth, 321 N.J. Super.
609, 613 (App. Div. 1999).
- Plain Smell
The smell of unburnt or burnt marijuana by a trained
police officer while lawfully in the area provided police
with probable cause to search the car of the defendant.
State v. Judge, 275 N.J. Super. 194, 201 (App. Div. 1994);
State v. Kahlon, 172 N.J. Super. 331, 338 (App. Div. 1980),
cert. denied, 454 U.S. 818 (1981). However, the smell of
burning marijuana emanating from a residence did not
justify warrantless entry into home because it demonstrated
at most that disorderly persons offenses were being
committed. State v. Holland, 328 N.J. Super. 1, 9-10 (App.
Div. 2000).
- Plain touch
When an officer discovers contraband through the
sense of touch during an otherwise lawful search, there has
been no invasion of the suspect’s privacy beyond that
already authorized by the officer’s search for weapons. As
such, its warrantless seizure would be justified so long as the
incriminating nature of the object is immediately apparent.
Minnesota v. Dickerson, 508 U.S. at 375-76, 113 S.Ct. at
2137, 124 L.Ed.2d 334; State v. Jackson, 276 N.J. Super.
626, 630-31 (App. Div. 1994). If the officer determines
that the item is contraband only after conducting a further
search, unauthorized by any exception to the warrant
requirements, then the item seized must be suppressed.
Minnesota v. Dickerson, 508 U.S. at 378-79, 113 S.Ct. at
2138-39, 124 L.Ed.2d 334.
Where the police physically manipulate a piece of
luggage in an “exploratory manner,” that violates the
fourth amendment. Bond v. United States, 529 U.S. 334,
336-38,120 S.Ct. 1462, 1464-65, 146 L.Ed. 2d 365
(2000).
I. Police Encounters
- Field Inquiry
The police do not violate the constitution by merely
approaching a person on the street or any other public place
and asking the person if he/she is willing to answer some
questions or by putting some questions to the person if he/
she is willing to listen. Florida v. Royer, 460 U.S. 491, 497,
103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983); State v.
Davis, 104 N.J. 490, 497 (1986); State ex rel. J.G., 320 N.J.
Super. 21, 28 (App. Div. 1999). As such, a field inquiry
does not constitute a seizure so long as the police officer
allows the person to move if he/she wishes. State v.
Sheffield, 62 N.J. 441, 447 (1973).- Investigative Detention
In order to conduct an investigative detention, the
police must have a particularized and objective basis for the
stop. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct.
690, 694-95, 66 L.Ed.2d 621 (1981). Reasonable
suspicion exists when an officer is aware of specific,
articulable facts which, when combined with reasonable
inferences, form the basis for suspecting that the particular
person to be detained has committed or is about to commit
an offense. State v. Davis, 104 N.J. at 504. The totality of
the circumstances, interpreted in light of a trained officer’s
experience, must be evaluated in determining whether
reasonable suspicion exists. United States v. Sokolow, 490
U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989).
The fact that purely innocent connotations may be
ascribed to a person’s actions does not mean that a police
officer cannot base reasonable suspicion on those actions;
the State must show that a person would find the actions
consistent with guilt. State v. Citarella, 154 N.J. 272, 279-
80 (1998).While reasonable suspicion is a less demanding
standard than probable cause “and requires a showing
considerably less than preponderance of the evidence,”
Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 675-
76, 145 L.Ed.2d 570 (2000), the constitution requires at
least a minimal level of objective justification for making
the stop. Id. at 124, 120 S.Ct. at 676. The officer must be
able to articulate more than a “hunch” that criminal
activity is afoot. Id.; State v. Contreras, 326 N.J. Super. 528,
541 (App. Div. 1999). The police cannot use improper
considerations, like race, to justify a stop. State v. Patterson,
270 N.J. Super. 562 (App. Div. 1994) (drug courier
profile); State v. Letts, 254 N.J. Super. 390 (App. Div.
1992) (same).Even if the initial stop is valid, it can thereafter become
unconstitutional if the officer does not use the least
intrusive investigative techniques reasonably available to
quickly verify orc dispel any suspicions. United States v.
Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84
L.Ed.2d 605 (1985); State v. Davis, 104 N.J. at 504. The
length of a detention may turn a stop into an arrest for
which probable cause is necessary. State v. Dickey, 152 N.J.
468, 482 (1998). If a vehicle is properly stopped, the driver
does not have a valid driver’s license and under questioning
continuously provides the police with false information
about his/her identity, the police may take the driver into
custody but cannot search the vehicle unless exceptions to