Evidence and Conviction Thrown Out as a Result of Fred Sisto's Trial Work

I contested a motion to suppress physical evidence in the case of State v. Xiomara Gonzales from January through May of 2011. After the trial court denied my motion, an appeal was taken. On April 6, 2015, the appellate division reversed the trial court’s decision. The result was that Ms. Gonzales’ conviction was thrown out and the first degree quantity of heroin seized from her car (enough to support a twenty year prison sentence) was suppressed. In relevant part, the Appellate Division held:

“The plain view exception to the warrant requirement is not satisfied because discovery of the heroin by Perez was not inadvertent. We part company with the trial court’s analysis regarding the second prong of the plain view exception, the judge focused on the police testimony that the drugs spilled from the bags, and could be readily seen without Perez having to open the bags to discern their contents. The court did not address the effect of the officers’ prior knowledge of the presence of narcotics in the car.

Here, unlike in Johnson, the police, including Perez and Thomas, knew in advance of the traffic stop that Height had placed two bags of heroin in the back seat area of defendant’s car. According to Samis, through a well-orchestrated investigation and surveillance operation, the police planned to effectuate a “wall off” traffic stop to seize the drugs. The police followed through on their plan using Perez and Thomas to effectuate the motor vehicle stop. In this case, the presence of the drugs in defendant’s car was clearly known in advance, and the motor vehicle stop, as planned, was a pretext to enable police to seize the narcotics.

Based upon the police having advance knowledge of the presence of the evidence, we conclude the “inadvertence” prong was not satisfied and, hence, the plain view exception to the warrant requirement was not met in this case. Thus, we hold that the conduct of the police in seizing the bags of heroin from defendant’s car violated defendant’s rights under the federal and New Jersey Constitutions. The order denying defendant’s motion to suppress the evidence is reversed, and the matter is remanded for further proceedings.

Defendant also argues that the automobile exception does not apply to the facts of this case because of the planned nature of the stop. Specifically, defendant urges that the facts show that no exigency existed that would have relieved the police of their obligation to obtain a warrant or a telephonic warrant. We agree.

The automobile exception to the warrant requirement provides that the police may conduct a warrantless search of a vehicle if: (1) the police have probable cause to believe the vehicle contains contraband; (2) the circumstances demonstrate an exigency making it impracticable for the police to obtain a warrant; and (3) and the traffic stop is “unforeseen and spontaneous,” as opposed to planned. State v. Pena-Flores, 198 N.J. 6, 20-22 (2009) (citing State v. Martin, 87 N.J. 561 (1981).

The first criteria is satisfied by the police having observed the narcotics being placed into defendant’s car. Thereafter, according to Samis, the investigation continued as the police followed defendant. The Newark officers trailed defendant for some time through the streets of Newark before stopping her on the Garden State Parkway. During that time, the police could have obtained a telephone warrant for the search of the vehicle based upon their knowledge that narcotics were in the car. The record does not demonstrate there was any exigency that impeded the police from doing so. Under these circumstances, the second criteria is not met.

Pena-Flores, supra, 198 N.J. at 29. Therefore, this traffic stop does not meet the requirements of the automobile exception.

Reversed and remanded.”