Pubdate: Tue, 05 Mar 2002
Source: New York Times (NY)
Copyright: 2002 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Section: New York Region
Author: Laura Mansnerus

HIGH COURT IN NEW JERSEY STRICTLY LIMITS AUTO SEARCHES

TRENTON, March 4 -- The New Jersey Supreme Court imposed strict limits 
today on the consensual auto searches that have been at the heart of the 
furor over racial profiling by the state police.

The ruling, expected to affect police practices throughout the state, comes 
after repeated calls by civil rights advocates and legislators to abolish 
"consent searches," in which officers are free to search the cars of 
motorists they stop so long as the motorist agrees. But legislation to 
limit searches has been opposed by two governors and has made little progress.

The court held today that before asking a driver's permission to search, an 
officer must have "reasonable and articulable suspicion" of criminal 
activity -- a standard adopted by only one other state, Hawaii. The court 
ruled on the basis of the New Jersey Constitution, as it often does in 
civil liberties cases.

While prosecutors have stressed that motorists are given consent forms to 
sign before a search, defense lawyers have expressed doubts that such 
searches can be truly consensual.

The decision today means that police officers "can't harass you and badger 
you into agreeing to a search," said Edward J. Crisonino, the defendant's 
lawyer in the case.

Kevin McNulty, who argued the case for the American Civil Liberties Union 
of New Jersey, said: "This isn't one of those criminal law issues that is 
of interest just to criminals. It's about how the police are going to treat 
people."

The state police have tightened their own rules on consent searches as part 
of the federal consent decree that has governed many of the agency's 
operations since evidence of racial profiling became public, and highly 
volatile, about three years ago. Most of the initial accusations of racial 
p rofiling stemmed from cases in which defendants sought to suppress 
evidence gathered in consent searches.

The federal consent decree requires a trooper to "articulate a reasonable 
suspicion" before ordering a consent search, said Roger Shatzkin, a 
spokesman for the attorney general's office, and since last summer the 
agency also requires a supervisor's permission.

The prosecutors argued to the Supreme Court, however, that the restrictions 
should take the form of agency policy, and were not constitutionally 
required. The New Jersey State Association of Chiefs of Police had also 
opposed restrictions on consent searches; the executive director, Mitchell 
Sklar, said today that the organization was still reviewing the court's 
decision.

The defendant in the case, Steven J. Carty, was a passenger in a car 
stopped on the New Jersey Turnpike in March 1997. A search found cocaine in 
Mr. Carty's possession. The trial court in Camden County, after hearing 
prosecutors argue that Mr. Carty and the driver were acting nervous, found 
the search justifiable and refused to exclude the evidence. Mr. Carty spent 
nearly two years in prison before the appellate division overturned the ruling.

Today's decision upheld the appellate court's finding in a 5-to-0 vote. Two 
justices, Peter G. Verniero and Jaynee LaVecchia, who had been officials in 
the attorney general's office, recused themselves. The decision was written 
by Justice James Coleman.

Justice Coleman's opinion cited findings that 95 percent of motorists 
consent to requests for searches when their cars are stopped, adding that 
"where the individual is at the side of the road and confronted by a 
uniformed officer, it is not a stretch of the imagination to assume that 
the individual feels compelled to consent."
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