Saturday, December 6, 2014

Dog sniffs and police errors: What does "probable cause" actually mean in New Jersey?


The file on-line here contains both:

a) Atlantic County Superior Court Judge Mark H. Sandson's March 10, 2014 opinion which voided a warrant authorizing a search of a package containing marijuana that was shipped to the defendant via Federal Express, and

b) A November 24, 2014 Appellate Division unpublished opinion that reversed Judge Sandson's ruling.



The cases are instructive on the contours of probable cause.  Here, the affidavit in support of the search warrant was based on information, some of which was later shown to be erroneous, that one officer received via telephone from another officer.

The facts reveal that the arresting officer's affidavit stated that he had been told by another officer that the defendant had been arrested for marijuana possession in Iowa in 2012 and that "approximately $84,000 in U.S. currency" was seized.  But, the officer later acknowledged that this statement was "a mistake" and that the defendant was instead issued a summons in Iowa for having possessed a "small amount of marijuana." Despite the apparent seriousness of this error, the Appellate Division found that the officer who prepared the affidavit "had no obvious reason to doubt the truth of what he had been told about the package or the 2012 motor vehicle stop in Iowa."

Also, the Appellate Division did not address Judge Sandson's concern that a significant distinction exists between a canine's alert to a motor vehicle as opposed to a package sent through a common carrier.  Judge Sandson said that unlike a motor vehicle, which is in a suspect's full, continuous possession and control, a package sent via common carrier comes into contact with hundreds of other packages during shipping.  Since a drug canine "is unable to differentiate residual odors on Defendant's package remaining from other packages from the odors of the targeted package's contents," the sniff is not sufficiently reliable to justify the issuance of warrant.