Tip Corroboration Justifies MV Stop – State v. Birkenmeier

This morning’s New Jersey Supreme Court opinion in State v. Birkenmeier involves a police stop of a motor vehicle based upon the tip of a confidential informant. The Justices held that the corroboration of certain limited factual aspects of the tip provided sufficient reasonable suspicion for the police to stop the defendant’s car. Once the police effected the stop, they detected the smell of raw marijuana which gave them probable cause to search the entire car under the automobile exception. Following the auto search, the defendant gave a voluntary, oral consent to a search of his home where more CDS was recovered.

While reviewing this case, please be mindful of two issues.

1. Note that when discussing the automobile exception’s requirement of exigent circumstances, the Court simply assumes exigent circumstances and comments in a footnote on the failure of the defendant to argue the issue below. Compare this outcome to last week’s decision in State v. Dunlap where the presence of 10 police officers at the arrest scene vitiated the exigent circumstances.

2. The Justices assume without deciding (see footnote 3) that the requirement for reasonable suspicion required in the consent search of a motor vehicle also applies to other consent searches when a defendant is in custody. You may wish to interpret this as a sign that the Court may not yet be ready to rule that a reasonable suspicion is required for a consent search outside the motor vehicle context. However, the Appellate Division has already assumed that such a belief is required prior to seeking consent for the search of a residence. See State v. Domicz, 377 N.J.Super. 515, 873 A.2d 630 (App. Div. 2005).

Download a copy of State v. Birkenmeier

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