Driving while black in Warren? Courts slam 40-minute traffic stop

WARREN – A township police officer found a weapon in the trunk of a car that he pulled over but the prosecutor will not be able to use it as evidence because the cop overstepped his bounds and violated the suspect's rights, a state appelate court ruled.

The decision Monday, affirming a Superior Court judge's decision to suppress the gun as evidence, could mean that that second-degree illegal gun charge against Devin Henderson, 20, of North Plainfield, will be dropped.

The criminal proceedings following the 2013 arrest raises questions about how 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 rear-view mirror.

The traffic stop lasted about 43 minutes.

Superior Court Judge Robert Reed, sitting in Somerville, and a two-judge appellate panel, said Officer Erik Larsen used the traffic stop to go on a fishing expedition against Henderson and his passenger, who the officer described in his testimony as "two young black males."

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

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, the court found, couldn't keep their stories straight.

Larsen said that 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 stop, the court found.

The court also found that 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 that the initial stop itself was justified, his attorney argued that "there was no legitimate reason for this stop."

"The whole circumstances surrounding this case are very peculiar," Thomas J. Cammarata, of Cammarata, Nulty & Garrigan, said Monday in an interview.

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

Federal statistics show that 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."

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 that the consent was not voluntary.

State courts have held that 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 says "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."

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 2 miles later, just before Route 22.

Larsen incredulously questioned the passenger about not having an ID.

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

Larsen testified that 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."

Staff Writer Sergio Bichao: 908-243-6615; sbichao@mycentraljersey.com