On March 29, 2018, the new Jersey Supreme Court decided the Ocean county case of State v. Aharon Atwood and Shalom Mizrahi. The principal issue was whether a search warrant could retroactively justify the warrantless motor vehicle stop that preceded the issuance of the warrant.
Writing for a unanimous Court, Justice Timpone held in relevant part: In this appeal, the Court considers whether a search warrant granted after police performed an investigatory automobile stop can retroactively validate the stop and insulate the State from bearing, in a suppression hearing, the burden of demonstrating reasonable and articulable suspicion for the initial seizure of the moving vehicle.
On June 12, 2015, the Lakewood Police Department (LPD) received a call regarding a disturbance. Sergeants Pederson and Miick of the LPD responded to the area and conducted a motor vehicle stop of an automobile driven by defendant Aharon Atwood, in which co-defendant Shalom Mizrahi was a passenger. According to the search warrant affidavit, Sergeant Miick observed Atwood’s vehicle pull “over to the side of the road with a front driver’s side head light out,” then “quickly leave the area as the marked unit was observed.”
Defendants disputed the basis for the stop, asserting that both headlights were operational and denying any evasive behavior. The Mobile Video Recording (MVR), according to defendants, indicates that Atwood did not commit any motor vehicle violation.
After Sergeant Miick activated the overhead lights, Atwood immediately pulled the vehicle to the side of the road. Both officers approached the vehicle and questioned defendants about the disturbance on Ford Avenue. Mizrahi explained that he had been the victim of a robbery. The officers then questioned defendants about an apparent marijuana odor emanating from the vehicle. While questioning defendants, Sergeant Miick reportedly detected traces of marijuana, in plain view, on the driver’s side floor. The officers requested an Ocean County Sheriff’s K-9 narcotics dog to respond to the scene and removed defendants from the vehicle. The K-9 gave a “positive hit” on the vehicle’s trunk. Police impounded the vehicle and placed both defendants under arrest. Later that evening, Officer Nathan Reyes of the LPD obtained a search warrant for the vehicle. Police executed the warrant soon thereafter, uncovering marijuana and cocaine in the rear interior passenger area of the car. On August 26, 2015, an Ocean County Grand Jury handed up an indictment charging each defendant with four drug offenses.
If the defendants’ contention is correct, this would not be the first time the particular police department had an officer’s testimony undermined by his own mobile video recordings. The police probably suspect that most defense counsel will not receive and review the MVRs in a timely manner. Or, they suspect that they video will be ambiguous with regard to confirming or dispelling their claims.
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