Courts slam police for tactics in 43-minute traffic stop

TRENTON – A North Jersey police officer found a weapon in the trunk of a car that he pulled over, but the prosecutor won’t be able to use it as evidence because the cop overstepped his bounds and violated the suspect’s rights, a state appellate court ruled.

The decision Monday, affirming a Somerset County Superior Court judge’s decision to suppress the gun as evidence, could mean the second-degree illegal gun charge against the driver will be dropped.

The criminal proceedings following the arrest in 2013 raise questions about how Warren Township police handled what began as a traffic stop for alleged failure to use a turn signal and for having a view obstructed by an air freshener hanging from the rearview mirror.

The traffic stop lasted about 43 minutes.

Superior Court Judge Robert Reed and a two-judge appellate panel said Officer Erik Larsen used the traffic stop to go on a fishing expedition against 20-year-old Devin Henderson and his passenger, whom the officer described in his testimony as “two young black males.”

Larsen repeatedly questioned the passenger about why he didn’t have identification — which people are not required to carry in New Jersey — and what he had purchased at the mall.

Made passenger get out

Larsen made the passenger get out of the car, even though police only are allowed to do that when they believe there is a danger, the court said.

And the police couldn’t keep their stories straight, the court said.

Larsen said he had smelled cologne in the car (which he said was a “red flag” possibly indicating an attempt to cover up the smell of marijuana), while a backup officer, Eric Yaccarino, said he and Larsen had smelled marijuana. Yaccarino’s claim was never included in any report of the traffic stop, the court found.

The court also found Larsen’s testimony did not match what could be seen or heard on the police car’s recording of the stop.

While the courts said the initial stop itself was justified, Henderson’s attorney argued “there was no legitimate reason for this stop.”

“The whole circumstances surrounding this case are very peculiar,” attorney Thomas J. Cammarata said in an interview.

The stop could be an example of so-called “driving while black,” the attorney said, although he did not make that argument in court.

Federal statistics show black drivers are more likely to be pulled over and searched than white drivers. Civil liberties groups, including the American Civil Liberties Union, say police nationally are more likely with black and Hispanic drivers to use traffic stops as a pretext to fish for evidence.

“We didn’t raise that issue of profiling because we didn’t have enough facts. But it seems to me than an argument could have been made that two black males coming off in a suburban area partially was the reason for the stop,” Cammarata said.

Warren Police Chief William Keane of Monday referred questions to the Somerset County Prosecutor’s Office, which declined to comment.

Reed ruled that the prosecutor failed to provide reasonable suspicion to justify the continued roadside detention or to justify Larsen’s request for a consent to search. Reed also ruled the consent wasn’t voluntary.

State courts have held police cannot act on mere hunches, but that is what Larsen did, the judges said.

While Larsen’s actions were “not abusive,” the appeals decision said “his persistent questioning, rejection of responses given by defendants … and probing for possible criminal activity for more than 40 minutes reflect an improper objective to do more than issue a citation for minor motor-vehicle violations.”

No marijuana found

Police found no marijuana in the vehicle — only a cigar with the tobacco taken out.

Nor did police find any cologne.

Larsen also never told the driver and passenger that he had seen what he suspected to be marijuana.

“The failure to secure any of the trace amounts (of marijuana) for analysis casts serious doubt on the assertion, particularly since the car was taken into police custody following defendant’s arrest,” the appellate decision said.

Larsen said he spotted Henderson getting off Interstate 78 and turning onto Hillcrest Road about 9 p.m. May 6, 2013. He pulled them over two miles later.

Larsen incredulously questioned the passenger about not having an identification.

“You know you’re supposed to have ID on you when you’re an adult right?” he says in the recording.

Larsen testified he asked the passenger to get out of the car so that he could separate them and see if their stories were consistent.

Larsen then threatened to lock up the passenger if he didn’t provide the officer with his “real name.” It turns out, however, that the passenger did give his real name; it was the police dispatcher who had given Larsen the wrong information.

Larsen asked Henderson to sign a search consent form. The driver was reluctant because he said his mother had been upset with him before for allowing police to search his vehicle. Larsen said that if he did not agree to a consent. he would have to call a judge for a warrant, which could take up to three hours.

Police said they found a .45-caliber gun with a scratched-off serial number in a bag in the trunk. Henderson denied knowledge of the gun.

The 19-page appellate decision cites a state Supreme Court ruling that a “police officer may not ask for consent to search a lawfully stopped vehicle or its occupants unless the officer has a ‘reasonable and articulable suspicion’ that the occupants are engaged in criminal wrongdoing.”

Allowing otherwise would “invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches.”