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  1. #1
    Join Date
    Jun 2012
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    3

    Default Charged With Possession of Drugs in a Vehicle that Was Parked

    My question involves criminal law for the state of: New Jersey.

    Recently Suspect was arrested for Possession of less than 50g marijuana and possession of paraphernalia. These charges in NJ are 2c:35-10A(4) and 2C:36-2, respectively.

    He was also issued the traffic offense 39: 4-49.1, Possession of CDS in motor vehicle.


    This traffic offense goes as "No person shall operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle any controlled dangerous substance as classified in Schedules I, II, III, IV and V of the “New Jersey Controlled Dangerous Substances Act,” P.L. 1970, c. 226 (C. 24:21-1 et seq.) or any prescription legend drug, unless the person has obtained the substance or drug from, or on a valid written prescription of, a duly licensed physician, veterinarian, dentist or other medical practitioner licensed to write prescriptions intended for the treatment or prevention of disease in man or animals or unless the person possesses a controlled dangerous substance pursuant to a lawful order of a practitioner or lawfully possesses a Schedule V substance."

    My questions are

    1) Is this traffic citation valid if the suspect's car was in park (in the parking lot of a park) the whole time? No movements were made.

    2) Was this a legal stop by the cop?: Suspect was sitting in parking lot and talking to the (1) other passenger in his car, when an officer pulled behind his spot and shined a white beam. Officer stated that "sometimes people smoke pot back here so if you have any just let me know and we'll throw it down the drain." Suspect denied any associations, but officer continued questioning and asked each of the two to step out of the car. Both obliged. Officer continued by asking if its okay to search the car, to which Suspect declined. Officer continues trying for about a half hour. Eventually suspect asked "I have to be somewhere soon, can I please go now?" to which officer responded "Youre going to have to wait until the drug dog gets here." Suspect interpreted this as being detained, and chose to consent to a search to facilitate the process, during which a glass pipe and approx .2grams of marijuana are revealed. Did the officer violate the rights of the suspect?


    Thanks for reading!

  2. #2
    Join Date
    Jan 2012
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    Tacoma, WA
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    1,534

    Default Re: Poss. of Cds in Motor Vehicle Validity for Parked Cars /// Legality of Traffic St

    Quote Quoting phillbags
    View Post
    My questions are

    1) Is this traffic citation valid if the suspect's car was in park (in the parking lot of a park) the whole time? No movements were made.
    Well…maybe. A person can “operate a motor vehicle” without having the car actually in motion. Were you in the driver’s seat, having full access to the operation controls of the vehicle? Were the ignition keys in your possession or actually in the ignition?

    The second element would be was the parking lot a “highway” as defined by statute? If it is a publicly maintained park, it is quite possible that it meets the definition. Even beyond that, it is possible that the officer saw the vehicle enter the parking lot from the street?

    Quote Quoting phillbags
    View Post
    2) Was this a legal stop by the cop?
    Again, the answer is maybe. In order to give a definitive answer, I would need to know what the cop knew at the time and what he/she could reasonably conclude based on his/her training and prior experience with that area. It is quite possible that, based on this being a frequent area for illegal substance use or other criminal activity, along with some other observable behavior, that the officer had reasonable suspicion sufficient to warrant detaining you while investigating. This is commonly referred to as a “Terry” stop.

    However, are there perhaps posted signs saying that the park is closed during certain hours? If you were in the park during the time it is closed to the public, that is all the cop would need to stop and detain you. If that contact then led to any reasonable suspicion of weed (like, for example, the very distinctive odor that potheads never think anyone else can smell?), then he/she could extend the detention to investigate that as well.

    The bottom line is that these are both questions that you will need to discuss with your attorney. Without access to the cop’s statement and further information about the specific location, nobody can give you a definitive answer to either question.
    Behind the badge is a person. Behind the person is an ego. This is as it should be, person at the center and ego to the back.

  3. #3
    Join Date
    Sep 2005
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    98,846

    Default Re: Charged With Possession of Drugs in a Vehicle that Was Parked

    In terms of the traffic offense, per NJSA 39:1-1, "'Highway' means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." It's an old case, but looking at be the same language a New Jersey Superior Court held that a parking lot did not fall under the definition of "highway". State v. Young, 231 A. 2d 857 (1967). You should discuss the subsequent treatment of that case with your lawyer.

    Beyond what PTPD22 asked, was your car running?

  4. #4
    Join Date
    Jun 2012
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    3

    Default Re: Charged With Possession of Drugs in a Vehicle that Was Parked

    1) I was in the drivers seat. I think I started the engine for a few seconds upon the officers first arrival, assuming that he was simply going to tell me that the park was closing and to leave. I asked him, and he said that the park is still open. This answers your third question also: the park was not closed, and he was aware of this.

    2) No possibility that he saw the car in motion. The last time it was moved was several hours prior, when i arrived.


    I have no criminal background and in NJ this qualify's me for conditional discharge. A friend of mine had faced similar drug charges (minus the traffic violation) and got off with a conditional discharge (about $800 in fines and 6 months of probation, no license suspension, expunged from record after 6 additional months) without hiring a lawyer.

    Personally, I would be okay if this was the end result, since money is the biggest part of this for me.

    Tell me if you see any flows in the logic of this approach:

    I goto arraignment without a lawyer. If the plea bargain isn't severe (conditional discharge of 6 months probation, no loss of license), I may take the offer to avoid having to pay the additional fees for a lawyer. If I dont like, I will plead not guilty and hire a lawyer.

    Furthermore, would it be of any use to file discovery by myself to see the extent of his report before arraignment? I am aware that he likely wrote it in a manner that avoided any questionable areas of the encounter. I also have been told that if an MVR was recording, it may be helpful for fighting the legitimacy of the stop. These factors could influence my decision for a plea bargain, to a small degree. What do ya'll think?

    Thanks a lot guys your responses so far have been great.

  5. #5
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    Default Re: Charged With Possession of Drugs in a Vehicle that Was Parked

    The officer saw you behind the wheel, starting the car. That's ample evidence that you were controlling the vehicle and intended to drive.

    You should be able to get a copy of the police report from the police department.

  6. #6
    Join Date
    Sep 2013
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    244

    Default Re: Charged With Possession of Drugs in a Vehicle that Was Parked

    people have gotten convicted being outside the car .. as long as keys were in your possession...i recall a dui in same set of facts as the op states as well.

  7. #7
    Join Date
    Jan 2006
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    38,867

    Default Re: Charged With Possession of Drugs in a Vehicle that Was Parked

    just the same, even if this specific charge is dismissed, there is a greater problem. If he was not operating the vehicle, then this is not considered to be a traffic stop. If this was considered to be a traffic stop, then there is a problem with the time you were detained. An officer can only detain long enough to effect the purpose of the stop. They cannot detain you additional time to allow a drug dog to be brought to the site. That could allow for a challenge to the search due to permission not being given freely based upon the extended detention while waiting for the dog.


    If this was not considered a traffic stop, those time constraints do not apply. The officer is allowed to detain as long as reasonable to effect his investigation.

    so, on one hand you have some defenses to the situation if it is considered a traffic stop

    on the other hand, refuting the claim it was a traffic stop, you lose what is gained if it was a traffic stop.

    the charges can be amended to reflect the facts of the situation.

    time to consult a lawyer before you present any arguments to the court.

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