Handgun Discovered In Search Will Not Be Suppressed
- May 11, 2015
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James J. Scarborough pled guilty to second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)) after police found a handgun under his seat in a vehicle during an investigatory search based on the odor of burnt marijuana coming from the vehicle’s interior. He was sentenced to 5 years incarceration, subject to a 3 year period of parole ineligibility under the Graves Act (N.J.S.A. 2C:43-6c). Police received an anonymous call about a vehicle parked in the rear lot of a closed facility and, upon responding, discovered 2 males in the vehicle involved in what the officer suspected to be drug activity. Upon encountering the driver the officer perceived an odor of burnt marijuana. Ultimately, the driver signed a consent to search form and a handgun was discovered under the passenger seat where Scarborough was sitting along with a magazine and ammunition between the passenger seat and door. Scarborough told police he found the gun in the woods earlier in the day and did not know what to do with it. Scarborough filed a motion to suppress the evidence and his statement, both of which were denied and he then entered into the guilty plea. In State v. Scarborough the defendant appealed and the NJ Appellate Division upheld the denial of the suppression motion finding that a field inquiry under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968) was permissible based on the anonymous call regarding the vehicle. The odor of burnt marijuana then gave probable cause to believe a crime was committed under State v. Vanderveer, 285 N.J. Super. 475 (App. Div. 1995) and State v. Nishina, 175 N.J. 502 (2003). Once the officer had probable cause to believe criminal activity was afoot he was justified, under State v. Carty, 170 N.J. 632 (2002), in seeking consent to search the vehicle. Finally the NJ Appellate Division found no abuse of discretion by the trial judge in determining the Scarborough’s statement was not coerced. The matter was, however, remanded as to sentencing factors only. Second-degree unlawful possession of a handgun in NJ carries up to 10 years in prison with a mandatory period of parole ineligibility under the Graves Act. If you are charged with a weapons offense you need experienced criminal defense counsel. For more information about weapons possession, possession of a weapon without a permit, use or possession of a weapon in the commission of a crime, illegal weapons or other weapon related charges in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.