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Appellate Court Rules Only PC is Needed to Tow a Vehicle

April 12, 2023 - Posted by Ed Esposito
​
A New Jersey Appellate Division Court recently overturned a motion to suppress evidence seized from a vehicle that the police towed because they believed it was used during the commission of a fatal shooting. In its decision, the Appellate Court ruled that the police were permitted to seize the vehicle by towing it pursuant to the plain-view exception to the warrant requirement while they awaited issuance of a warrant to search the car.

The circumstances leading up to the seizure of the vehicle in this case, State v. Marese Washington, Jr. (Docket A-0733-22), began after a shooting occurred on Route 55 in Millville where the victim was stuck in the head.  A ballistics examination of evidence at the scene revealed a possible match to shell casings recovered from a separate shooting incident in Millville. Through a comprehensive investigation, the vehicle suspected of being used in the shooting was identified.

The police responded to an apartment complex where an individual determined to be associated with the vehicle, but not the defendant, resided. A vehicle of the same make and model they were seeking was observed by the police in the parking lot of the apartment complex where no special access was required to enter since it was open to the public. After locating the vehicle, the police observed a temporary registration, a specific decal and damage on the vehicle consistent with the vehicle they suspected to be involved in the shooting incident.  After conferring with other detectives involved in the investigation, the decision was made to impound the vehicle as evidence.

After a tow truck and other law enforcement personnel arrived at the location of the vehicle, the person associated with the vehicle exited her apartment. Notably, she was not present at the scene beforehand. Police at the scene informed her that they were impounding the car and requested that she accompany them to the police station to speak about the investigation. She declined and objected to the seizure of her car, stating "something similar" to "you can't just take somebody's car without a warrant." Ibid.

The same day the vehicle was towed, the police investigating the shooting applied for a warrant to search the vehicle. A judge approved the warrant and a search of the vehicle revealed two shell casings that matched the shell casings recovered at the Route 55 shooting scene. Additionally, lead that was consistent with a firearm being discharged within the vehicle, and personal identification belonging to the defendant was recovered inside the vehicle. The defendant was ultimately charged murder and related charges after the victim died from complications of a gunshot wound to his head.

The defendant moved to suppress the warrantless seizure of the vehicle and the evidence seized during the ensuing search. The defendant argued that "police knew all there was to know before they went to [the] apartment complex." Ibid. Their argument was based on their belief that the seizure of the vehicle was similar to circumstances surrounding a roadside stop. The “defendant claimed police were required to obtain a warrant to seize the car, which was immobile and on private property.  According to [the] defendant, theoretically, [an officer] could have remained in the parking lot and prevented anyone from driving the vehicle while police applied for a seizure warrant.” Ibid. (Internal quotations omitted).

The State countered the defendant’s argument and asserted that “the plain-view exception to the warrant requirement permitted police to seize the car without a warrant while they awaited a warrant to search the car.  Specifically, police had probable cause to associate the vehicle with evidence of criminal activity that occurred [during the incident] and they were lawfully in the viewing area when they observed the car. The State noted access to the apartment complex's parking lot was not restricted.” Ibid.

In the course of its opinion, the Appellate Court said, “…we conclude the motion judge erroneously granted defendant's motion by reintroducing the inadvertence prong of the plain-view exception to the warrant requirement…” and reversed the lower Court’s decision. The Appellate Court referenced the New Jersey Supreme Court’s ruling in State v. Gonzales (2016), which eliminated the inadvertence requirement with respect to plain view seizures. The “police may seize contraband in plain view and without a warrant if two requirements are met: (1) they are lawfully in the viewing area when observing and seizing the evidence; and (2) the incriminating nature of the evidence is "immediately apparent" to the officers.” Marese Washington, Jr. (Quoting Gnozales 227 N.J. at 101.)

The Appellate Court concluded that the vehicle was properly seized under the plain-view exception to the warrant requirement since the vehicle’s evidentiary value was immediately apparent. In addition, the Court concluded that the police did not trespass on the apartment complex's parking lot when they observed the vehicle. “Stated another way, foreseeability and spontaneity are requirements of the automobile exception” and the Court in this case clarified that “only probable cause is needed to tow and impound a car.” Ibid. (Emphasis added.)  The Court said, “[b]ecause the [vehicle] was seized at the scene – and not searched – the requirements of the automobile exception were not applicable in this case.” Ibid. (Emphasis added.) 
​

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