Monday, February 11, 2013

"Inevitable Discovery", "Independent Source" Doctrines and Suppression in NJ

In the recently decided case of State v. Pheasant, police received a tip from an informant that defendant was selling marijuana but during a controlled buy they arranged, police did not find marijuana on defendant's person. Police then questioned defendant regarding where the marijuana was and he stated it was in his truck and they could "go get it." Defendant was charged with possession of a controlled dangerous substance (CDS), possession with intent to distribute CDS, possession of intent to distribute CDS within 1,000 of a school and possession of CDS with intent to distribute within 500 feet of a public housing facility, park or public building. Defendant sought to suppress the marijuana due to a warrantless search. The State argued defendant voluntarily disclosed the location of the CDS and even if the defendant's privacy rights were violated, a search warrant would have issued and the CDS would have been rightfully seized under the "inevitable discovery doctrine." The judge decided the State met the elements of inevitable discovery but failed to correctly interpret the doctrine. Additionally, the trial judge erred in incorporating elements of the "independent source doctrine" into the analysis when the State made no claim of independent source. The NJ Appellate Division held that the officer's inquiry regarding the CDS triggered defendant's right to privacy and he only disclosed the location of the marijuana when asked. Inevitable discovery requires that (1) proper, normal and specific investigatory procedures would have been followed in the investigation; (2) given the facts, the investigation would have resulted in discovery of the evidence; and (3) the discovery of evidence would have occurred independently of the discovery by unlawful means. State v. Sugar, 100 N.J. 214 (1985). In contrast, the independent source doctrine requires (1) the State had probable cause to search even without the illegally obtained information; (2) the state would have sought a warrant even without the illegally obtained knowledge; and (3) and illegality was a mistake and not "flagrant police misconduct." Because the State addressed only the inevitable discovery doctrine at trial the matter is remanded for reconsideration under the proper elements of that doctrine and the State is precluded from raising the independent source doctrine after the fact. A judge must submit very specific reasons for finding you guilty in a criminal matter. If you are facing criminal charges, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on drug charges, CDS, distribution, drug possession, CDS in a motor vehicle or other criminal law matters in New Jersey visit This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

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