Immunity From Prosecution Under the Turnover Statute

There is a statute in New Jersey that says in essence that if any person voluntary delivers a controlled dangerous substance (CDS) to a law enforcement agent consistent with the terms of the statute, that person is entitled to transactional immunity with respect to the possessory offenses and use and derivative immunity with respect to all other offenses. The core of this statute is rooted in principles contained in the Fifth Amendment.

Parenthetically, transactional immunity is the broader of the two and it protects against any prosecution associated with the protected statement or conduct. Use and derivative immunity protects the defendant only against the use of the protect statements or conduct and the evidence developed from the protected statement or conduct (i.e. fruits). Stated differently, the witness with transactional immunity cannot be prosecuted at all for the offense. The witness with use and derivative immunity does not have that absolute protection.

The biggest battle ground in the statute is whether the defendant “voluntarily delivered” the CDS to the government agent. In the first case that interpreted the statute, the defendant was riding in a train from Florida to Newark. Detectives assigned to investigate drug trafficking by rail collected information that made them suspicious of the defendant. When asked by the drug agents if they could search his luggage, the defendant responded “yes, go ahead, but I got some weed in there, but that’s all I got”. After the defendant signed the consent to search form, the search uncovered a small amount of marijuana/pot and two large bricks of cocaine. The defendant later sought to dismiss the indictment grounded upon the CDS immunity-turnover statute. In concluding that there was not a voluntary delivery of the CDS, the Court noted that under the statute, the motivating factor for surrendering the CDS should come voluntarily from the person in possession of the CDS and not from the compulsion of an official request to search the person’s property. Stated differently, the Court concluded that the only reason that the defendant in that case volunteered the information about the marijuana/pot was because he was confronted with an official investigation.

The facts of the last case that interpreted the CDS immunity-turnover statute were markedly different. There a local police officer was dispatched to an apartment complex on a complaint that the occupants of a car were smoking marijuana/pot. When the police officer arrived at the apartment complex, the defendant who was standing in a parking lot, put his hand over his head and said, “I have something that I want you to see...I have something in my pocket I want you to see....it is marijuana”. The police officer then requested the defendant to show him the marijuana; thereupon, the defendant opened his jacket pocket and placed the marijuana in plain view.

At trial, the defendant sought to “suppress” the evidence under the immunity turnover statute. The application was denied. On appeal, the court first questioned the procedural tact to “suppress” the evidence as opposed to seeking an order to dismiss the indictment. It next determined that under the special circumstances of the case the defendant voluntarily disclosed the marijuana to the police officer. Resultantly, the appellate court reversed the trial court’s decision and determined that under the facts of the case that there had been a voluntary disclosure. In reaching this conclusion, the court placed special emphasis on the fact that there was no evidence that defendant or anyone else had used any of the marijuana defendant was carrying in his pocket.