State v. Kennedy, A-1444-88T4

• Decision Date: 25 March 1991
• Docket Number: A-1444-88T4
• Citation: 247 N.J.Super. 21,588 A.2d 834
• Parties: , 59 USLW 2693 STATE of New Jersey, Plaintiff-Respondent, v. Curtis KENNEDY, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Robert UNDERWOOD, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 21

247 N.J.Super. 21

588 A.2d 834, 59 USLW 2693

STATE of New Jersey, Plaintiff-Respondent, v. Curtis KENNEDY, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Robert UNDERWOOD, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

A-1444-88T4 Argued Feb. 26, 1991.

Decided March 25, 1991.

A-1471-88T4 Submitted Feb. 26, 1991.

Decided March 25, 1991.

Sheri Woliver, Deputy Public Defender, for appellant Kennedy (Wilfredo Caraballo, Public Defender, Sheri Woliver, on the brief and reply letter-brief).

Frank J. Bucsi, Sr. Warren County Asst. Prosecutor, for respondent (Richard C. Hare, Warren County Prosecutor, attorney; Frank J. Bucsi, on the brief).

Jane Grall, Deputy Atty. Gen., submitted a brief and argued the cause on behalf of amicus curiae State of N.J. (Robert J. Del Tufo, Atty. Gen., attorney; Jane Grall, on the letter-brief).

Deborah A. Ellis submitted a letter-brief on behalf of amicus curiae American Civil Liberties Union.

A-1471-88T4

Wilfredo Caraballo, Public Defender, for appellant Underwood (Theodore E. Kyles, Jr., designated counsel, on the letter-brief; Ruthann Russo, designated counsel, on the supplemental brief).

Richard C. Hare, Warren County Prosecutor, for respondent (Frank J. Busci, Sr. Asst. Prosecutor, on the brief).

Before Judges PRESSLER, DEIGHAN and BAIME.

The opinion of the court was delivered by

BAIME, J.A.D.

Defendants' automobile was stopped for speeding on Interstate Route 80. The resulting search of the vehicle disclosed a substantial quantity of controlled dangerous substances. Following a jury trial, defendants were convicted of first degree possession of cocaine with intent to distribute ( N.J.S.A. 2C:35-5b(1)) and possession of marijuana ( N.J.S.A. 2C:35-10a(4)).

Although additional arguments are advanced, defendants' principal contention on appeal is that the Law Division erred by denying their pretrial motion to obtain internal State Police records allegedly supportive of their claim of discriminatory enforcement of New Jersey's traffic laws. They assert that while the stop of their vehicle for a traffic violation was objectively reasonable, it was actually prompted by an officially sanctioned or de facto State Police policy of targeting members of minority groups. Defendants argue that the information they seek is relevant to their claim of invidious, institutional racism.

We hold that a defendant must establish a colorable basis for a claim of selective enforcement in order to obtain pretrial discovery of relevant items in the exclusive control of a government agency. We also conclude that the statistical survey submitted by defendants, although deficient in many particulars, was sufficient to establish their entitlement to the materials requested, and that the Law Division mistakenly exercised its discretion in denying defendants' motion.

I.

We briefly summarize the facts pertinent to defendants' claim of selective enforcement. ¹ On October 14, 1987, State Troopers Darrell Albonico and Raymond Lasso were conducting stationary radar monitoring on the westbound lanes of Interstate Route 80 in Knowlton Township, Warren County. At approximately 3:00 p.m., the officers observed a black, late model Lincoln with Ohio license plates travelling at a high rate of speed. It is undisputed, and in fact conceded by defendants' attorneys, that the automobile was clocked at 69 m.p.h., well in excess of the applicable speed limit.

Trooper Albonico approached the Lincoln from the driver's side. Initially, the officer observed only the driver, defendant Underwood. At some point, however, Albonico noticed defendant Kennedy seated on the passenger side, leaning toward the floor area. Underwood was asked for his driver's credentials, but was unable to produce a license. According to Trooper Albonico, he then peered through the window and observed a clear plastic bag on the floorboard, containing brown vegetation, a suspected marijuana "roach" and a packet of "E-Z Wider rolling paper." The officer ordered both defendants to exit from the vehicle and, after retrieving the bag, placed them under arrest.

Trooper Albonico asked defendants if they would consent to a search of the automobile. According to Albonico, he told them that they had the right not to consent. Both defendants verbally agreed to permit the search, noting that the automobile did not belong to them. Using his keys, defendant Underwood opened the trunk of the automobile. Trooper Lasso noticed the corner of a plastic bag protruding from the area near the spare tire. The bag contained a "white, powdery substance." After defendants were handcuffed and placed in the patrol car, Trooper Lasso conducted a more thorough search of the Lincoln. The search disclosed a cellular telephone belonging to defendant Kennedy. The registration, which was found in the glove compartment, listed Ford Motor Credit Co. as the owner of the automobile and T.O.A. Investments, as the lessee.

Following the return of the indictment, defendants, along with four other individuals whose criminal charges stemmed from arrests for traffic violations on Route 80, filed a consolidated motion, seeking (1) State Police logs, radio reports and tapes of all stops during the weeks of their respective arrests, (2) materials containing State Police training procedures, including videotaped sessions and manuals, (3) all training materials in the Elite Drug Interdiction Unit, and (4) the names of all instructors of the New Jersey State Troopers "who have been employed as such within the last five years." Defendants, who are non-caucasians, claimed that their arrests, even if objectively reasonable, were tainted by a long-standing, systematic practice of invidious discrimination against minorities reflected in the selective enforcement of New Jersey's traffic laws. They asserted that the materials requested would support their claim.

Accompanying defendants' motion was a study prepared by the Warren County Public Defender's Office which disclosed that in 43 of its cases involving motor vehicle stops on Route 80 in a three year period, 70% related to African-American occupants, 7% Hispanics and 23% caucasians. It was said that these figures were disproportionate to the Warren County Public Defender's caseload within the last eight months which was comprised of 76% caucasians and 17% African-Americans. In addition, an affidavit filed by a staff member of the American Civil Liberties Union (ACLU), alleged that she had received "numerous complaints" from minority citizens claiming that they had been stopped for "minor traffic violations" and subjected to intrusive searches.

The Law Division denied defendants' motion, finding that the Public Defender's statistical study fell short of establishing a colorable claim of selective enforcement. The court stressed that defendants had failed to present evidence tending to show the existence of the essential elements of the defense and that the materials in the State's possession would be probative of a claim of discriminatory enforcement. Defendants were found guilty of the charges following a lengthy trial and were later sentenced to substantial prison terms.

Defendants filed separate appeals. We thereafter granted the motions of the Attorney General and the ACLU to appear amicus curiae. We now consolidate defendants' appeals and remand for further proceedings.

II.

We begin with the well-recognized principle that generally the proper inquiry for determining the constitutionality of a search and seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent. See, e.g., United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 1587, 104 L.Ed.2d 1, 12 (1989); Maryland v. Macon 472 U.S. 463, 470-471, 105 S.Ct. 2778, 2783, 86 L.Ed.2d 370, 378 (1985); Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168, 178 (1978); United States v. Hawkins, 811 F.2d 210, 214 (3rd Cir.1987), cert. den. 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Smith, 799 F.2d 704, 708-709 (11th Cir.1986); State v. Bruzzese, 94 N.J. 210, 219-221, 463 A.2d 320 (1983) cert. den. 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984). The fact that the officer does not have the state of mind hypothesized by the reasons which provide the legal justification for the search and seizure does not invalidate the action taken, so long as the circumstances, viewed objectively, support the police conduct. State v. Bruzzese, 94 N.J. at 220, 463 A.2d 320.

Were we to adopt a subjective rule, practically every search and seizure case would require the court to engage in a costly and time consuming expedition into the state of mind of the searching officer. Id. at 221, 463 A.2d 320. Since motives are seldom apparent or vocalized, there is little reliable evidence of them. Ibid. Even where motives are evident, human behavior is generally the product of a complex of reasons and emotions, and "[a] judge cannot and should not be required to weigh [these factors] to determine which one guided the officer's [conduct]." Ibid. Delving into the ulterior motives of police officers penalizes those who outwardly behave in a constitutionally appropriate manner. Id. at 222, 463 A.2d 320. Moreover, a defendant subjected to an objectively reasonable search might receive a windfall because the officer harbored evil thoughts. For these reasons, the United States Supreme Court and our highest court have held that the application of the objective standard best protects the privacy of citizens. Id. at 225, 463 A.2d 320.

This principle has been applied in a variety of contexts germane to the issue presented. In a series of federal decisions, it has been said that the courts will not inquire into the motivation of a police officer whose stop of an automobile is based upon a traffic...