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The New Jersey Supreme Court has expanded the group of defendants who can benefit from its March 4 ruling, in State v. Carty, 170 N.J. 632, that police must have a “reasonable and articulable” reason for asking motorists for permission to search their cars. Acting sua sponte, the court said in a one-page order April 30 that Carty “shall apply in all cases pending in the trial court and on direct appeal as of June 23, 2000,” the day the Appellate Division issued its reported opinion in the case at 332 N.J. Super. 200. That means these defendants can argue the illegality of the consent searches that led to their arrests. The court’s ruling applied originally only in cases in which the traffic stop occurred after June 23, 2000. Though the court did not explain its reasons, Kevin McNulty, who argued amicus on behalf of the New Jersey chapter of the American Civil Liberties Union, says he believes the court may have decided to clarify its original ruling. “The Appellate Division’s ruling became law when it was published,” says McNulty, a partner at Newark, N.J.’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione. “If anyone was facing charges or had an appeal pending after that date, they should be able to take advantage of the ruling.” Representatives from the New Jersey attorney general’s office, which tried to overturn the Appellate Division’s ruling, did not return telephone calls seeking comment. When it upheld the Appellate Division, the court made New Jersey one of only four states — Hawaii, New York and Ohio are the others — that have adopted the “reasonable and articulable” standard for requesting a consent search. The defendant, Steven Carty, was a passenger in a car stopped on the New Jersey Turnpike on March 27, 1997, by a state trooper, who obtained the driver’s consent to search the car. Apparently because his back would be toward Carty, the trooper asked Carty for permission to frisk him. The trooper found cocaine in Carty’s pocket, and Carty eventually was sentenced to six years in prison. Justice James Coleman Jr., writing for the court, said the ruling “serves the prophylactic purpose” of preventing police officers from turning a routine traffic stop into a “fishing activity for criminal activity.” “In the context of motor-vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume that the individual feels compelled to consent,” Coleman wrote. The case was decided against the backdrop of New Jersey’s wide-scale investigation of racial profiling, which led to the termination of State Police Superintendent Carl Williams. After extensive study and hearings, the Senate Judiciary Committee reported in June 2001 that state police consent searches disproportionately involved minority drivers and that the vast majority of these searches yielded no evidence of unlawful activity. Such searches, conducted without warrants, were based on consent of the motorists. Some opponents of profiling believed the court’s restrictions on consent searches did not go far enough. A bill introduced in the Legislature on March 26 would prohibit them completely. The measure, A-2195, sponsored by Essex County Democratic Assemblymen John McKeon and Wilfredo Caraballo, provides that “A State or local law enforcement officer who stops a motor vehicle on a street or highway of this State shall not conduct a search of that motor vehicle unless the officer has probable cause to believe the vehicle contains unlawful property.” Probable cause connotes the existence of circumstances that would lead a reasonably prudent person to believe in the guilt of an arrested person. It is a significantly higher threshold than the “reasonable and articulable suspicion” standard adopted in Carty. Signing on to last week’s order were the five justices who participated in the original ruling — Chief Justice Deborah Poritz and Justices Coleman, Gary Stein, Virginia Long and James Zazzali. Justices Peter Verniero and Jaynee LaVecchia — the former attorney general and the former director of the Division of Law — did not participate in the original opinion or the order last week.

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