State v. Whyte

In State v. Whyte, 265 N.J. Super. 518, 628 A.2d 340 (App.Div.1992), aff'd o.b., 133 N.J. 481, 628 A.2d 287 (1993), the police stopped a van with four occupants and found seven and three-quarter ounces of cocaine with a street value of about $ 43,000 concealed within the upholstery at the back of the rear left captain's chair. Also concealed were two bags, one containing a handgun and ammunition, the other containing drug paraphernalia. The passengers were cooperative and appeared at ease. There was no evidence indicating they were embarked on a lengthy journey. In a 2-1 per curiam decision, which was affirmed on the opinion below by a 4-3 Supreme Court decision, 133 N.J. 481, 628 A.2d 287 (Chief Justice Wilentz, and Justices Handler and Garibaldi dissenting for the reasons expressed by Judge Shebell in his dissent), this court held that there was insufficient evidence to support the passengers' conviction, with the following comments: Although the case before us is close, we are persuaded that the totality of the circumstances, even if we fully credit the State's case, cannot convert the presence of these defendants in the place where the concealed contraband was found into a knowing control and dominion over it. The only circumstance placing this case in the Palacio rather than the Shipp column is the fact that the contraband was concealed within the vehicle itself rather than on the person or within the personal belongings of any one passenger. None of the other Palacio circumstances are here present. The contraband here did not have a value of anything like the magnitude which apparently influenced the Court in Palacio. None of the passengers acted in any way furtively or suspiciously. If we assume that the trip originated either in the Bronx or in Brooklyn, it was relatively brief in both distance and duration. We certainly could not, nor could a jury, speculate on its destination. There is no other fact here indicating the passengers' knowledge that the van contained contraband, no less that they were co-possessors of it. In sum, while there may be a fine line between Palacio and Shipp, we are persuaded that this case is on the Shipp side of it. There is a world of difference between speculation and legitimate inference, and we conclude that the convictions here rested on speculation. 265 N.J. Super. at 524-25, 628 A.2d 340.