Drug and DWI Law NJ

To “possess” an item under the law, one must have a knowing, intentional control of that item accompanied by a knowledge of its character. So, a person who possesses an item such as ( IDENTIFY RELEVANT ITEM(S)) must know or be aware that (he/she) possesses it, and (he/she) must know what it is that (he/she) possesses or controls (that it is ). [WHERE APPLICABLE, charge: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to “possess” an item, one must knowingly procure or receive an item or be aware of (his/her) control thereof for a sufficient period of time to have been able to relinquish (his/her) control if (he/she) chose to do so.

The State must prove beyond a reasonable doubt that a possessor acted knowingly in possessing the item. A person acts knowingly with respect to the nature of his/her conduct or the attendant circumstances if he is aware that his/her conduct is of that nature, or that such circumstances exist, or he/she is aware of the high probability of their existence. A person acts knowingly as to a result of his/her conduct if he is aware that it is practically certain that that conduct will cause such a result. Knowing, with knowledge, or equivalent terms have the same meaning.

Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inferences from conduct, words or acts. Therefore, it is not necessary for the State to produce witnesses to testify that a particular defendant stated, for example, that he acted with knowledge when he had dominion and control over a particular thing.

Revised 4/18/05

POSSESSION (N.J.S.A. 2C:2-1 Page 2 of 3

It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inference which may arise from the nature of the acts and the surrounding circumstances.

Apersonmaypossess (an item) even though it was not physically on (his/her) person at the time of the arrest, if (he/she) had in fact, at some time prior to (his/her) arrest, had control and dominion over it.

Possession means a conscious, knowing possession, either actual or constructive.

[CHARGE THOSE FOLLOWING PARAGRAPHS AS APPLY TO YOUR CASE]

ACTUAL POSSESSION

A person is in actual possession of an item when (he/she) first, knows what it is: that is, (he/she) has knowledge of its character, and second, knowingly has it on (his/her) person at a given time.

CONSTRUCTIVE POSSESSION 1

Possession may be constructive instead of actual. As I just stated, a person who, with knowledge of its character, knowingly has direct physical control over an item at a given time is in actual possession of it.

InStatev.Spivey, N.J. (2004), the New Jersey Supreme Court affirmed a conviction under N.J.S.A. 2C:39-4.1(a), Possession of a Firearm While Committing Certain Drug Offenses. There, the Court noted that that statute suggests a temporal and spatial link between possession of the firearm and the drugs. The Court held: “The evidence must permit the jury to infer that the firearm was accessible for use in the commission of the [drug] crime.” In the appropriate case, therefore, the possession charge may be supplemented by this language.

POSSESSION (N.J.S.A. 2C:2-1 Page 3 of 3

Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to exercise intentional control or dominion over it. So, someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it, either directly or through another person or persons, is then in constructive possession of that item.

JOINT POSSESSION

Possession may be sole or joint. If one person alone has actual or constructive possession of an item, possession is sole. If two or more persons share actual or constructive knowing possession of an item, possession is joint.

Friday, August 05, 2011

STATE OF NEW JERSEY v. LAMBERT A-5323-09T4 May 5, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5323-09T4

STATE OF NEW JERSEY, Plaintiff-Appellant, v. ZAIRE E. LAMBERT, Defendant-Respondent.

Submitted January 25, 2011 - Decided May 5, 2011

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 09-09-3055.

Warren W. Faulk, Camden County Prosecutor,

attorney for appellant (Rachael Minardi,

Assistant Prosecutor, of counsel and on

the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent (Diane Toscano,

Assistant Deputy Public Defender, of

counsel and on the brief).

PER CURIAM

Defendant was charged with one count of unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and one count of receiving stolen property, N.J.S.A. 2C:20-7. Defendant filed a motion to suppress the evidence seized during a search of a vehicle, and the trial court granted the motion. The State appeals, pursuant to leave granted, from the trial court's order granting that motion. After reviewing the record in light of the contentions advanced on appeal, we reverse.

One witness testified at the motion, Patrolman Al Higginbotham of the Clementon Police Department. Higginbotham was on routine patrol on the night of May 13, 2009, and shortly after 11:00 p.m. was patrolling the area around the Pine Valley Court Apartments, a multi-building complex; he was in a marked troop car, by himself. Higginbotham testified that the area was "a high crime area, [with] a lot of drugs, a lot of burglaries, had a couple of home invasions there, assaults." He himself had made a number of arrests in the area.

He noticed a car in the parking lot with its lights out in which several people were sitting. He decided to approach the car because of his knowledge of the area's reputation for narcotics trafficking. Before doing so, however, he radioed his intention to the department's central dispatch. Higginbotham stopped his patrol car behind the parked vehicle and perpendicular to it. He said he did not block the vehicle in when he parked his patrol car and that there was sufficient room for the vehicle to back up and leave if the driver had wanted to do so. While he did not formally request the assistance of back-up units, two other patrol cars, which had evidently been nearby, pulled into the lot as he was getting out of his patrol car and approaching the parked vehicle. He identified the other two officers as Patrolman Clark and Sergeant Laub. Higginbotham testified that it was a common procedure for central dispatch to notify other units in the area that an officer was going to investigate a suspicious vehicle. He said that when they arrived, they also got out of their vehicles and came toward the car. None of the three officers turned on the emergency lights in their patrol cars. He also said that while he did not remember how the two officers parked their patrol cars, he did not believe that they would have prevented the driver from moving his car from the scene if he had wanted to do so. The defense did not present any testimony that the patrol cars in any way hemmed in the other car.

Higginbotham testified that it was very dark in the parking lot and that it was not until he approached the car, that he could see that three individuals were in the car, the driver, the front-seat passenger, and the driver's-side, rear-seat passenger. The driver's-side window was partially rolled down, and as he approached the car, he could detect the odor of raw marijuana. The driver rolled down his window all the way, and the odor of marijuana became stronger. Higginbotham asked the driver why he was parked there, and the driver responded that he had been visiting his cousin and came outside to talk to his friends. Higginbotham asked the driver where was his cousin and the driver answered, "The F Building right there." He was pointing, however, to the "J" Building.

Higginbotham then asked for identification from all three men, and two were able to produce documentation; the third identified himself verbally. None of the three lived at the apartment complex. Higginbotham then called his dispatcher and asked that a warrant check be run; he learned that there was an outstanding warrant for the driver. He then asked the driver to step out of the car and spoke to him at the rear. He asked who owned the car, and the driver responded that it belonged to the front-seat passenger, defendant. Higginbotham again asked the driver where he was coming from, and this time he pointed toward the "F" Building and said he was coming from the "F" Building. When asked why, just a few minutes earlier, he had pointed to the "J" Building, he denied doing so.

Higginbotham placed the driver in one of the other patrol cars that had responded to the scene and then approached defendant, the front-seat passenger. He asked defendant if the car was his, and he responded that his mother leased it. Higginbotham again smelled the odor of raw marijuana and asked defendant and the individual in the back seat to both step out, and they did so. Higginbotham asked if he could search the car, and defendant agreed. Higginbotham gave him a form to execute, indicating his consent, and defendant signed it. Higginbotham testified that before defendant signed the form, he explained it to defendant, and explained that he did not have to agree to the search. He said that defendant's demeanor was cooperative throughout and that he signed the form willingly.

Although the consent form was admitted into evidence at the hearing, it has not been supplied to us in connection with the appeal. From testimony presented, however, the following additional facts were presented. The time noted for execution of the form was 10:30 p.m. Higginbotham testified that was clearly incorrect, that the time was 11:30 p.m. He also testified, however, that defendant inserted the time when he signed the form, not Higginbotham. In addition, execution of the form gave consent to search two vehicles, the one in which the three men had been sitting, and another, parked nearby. Higginbotham testified that defendant told him that he owned that vehicle, and thus Higginbotham included it on the form.

After obtaining defendant's consent, Higginbotham entered the car and uncovered what he termed a "chunk" of marijuana between the seat and the center console, which he estimated at less than fifty grams. With that discovery, Higginbotham called the dispatch office to see if there was a K-9 unit in the area. He learned that one was nearby and would respond to the scene. It arrived in approximately ten minutes. Higginbotham said he did not conduct any further search of the car in the interim but simply waited for the K-9 unit to arrive. Higginbotham testified that one of the reasons he waited was Sergeant Laub's uncertainty whether the executed consent form conferred permission to search the trunk. While they were waiting, Sergeant Laub contacted someone from the prosecutor's office, who advised him that it did.

When the dog did arrive, his handler first placed him in the car and then had him walk around the car. The handler told Higginbotham that the dog had reacted both to the car's console and the trunk. Higginbotham opened the console and found cash in the sum of $632, in denominations of twenty dollars and less. Higginbotham, together with Sergeant Laub, then turned to the trunk, opening it with the keys that had been in the ignition. They could see the remnants of marijuana on the driver's side panel. They looked further and came upon a loaded Taurus nine millimeter pistol in the wheel well area. They called in the weapon's serial number to dispatch and learned that it had been reported as stolen in Pennsauken. Defendant was placed under arrest. Based upon a supervisor's recommendation, Higginbotham did not search the vehicle that defendant had identified as belonging to him.

Following this testimony, the trial court granted defendant's motion to suppress. In the court's oral opinion, it made no findings with respect to Higginbotham's credibility, i.e., whether it accepted his testimony as credible or did not. In that opinion, it rejected the State's characterization of Higginbotham's initial encounter with the three occupants of the car as a field inquiry. It stressed the presence of the three patrol cars on the scene and its view that as a consequence, the driver of the car in question would not have considered himself free to leave the scene. It concluded, rather, that it was an investigatory stop, and since Higginbotham did not have reasonable and articulable suspicion to support an investigatory stop, the subsequent search, although done with consent, was invalid. Thereafter, we granted the State's motion for leave to appeal.

On appeal, the State raises the following arguments for our consideration:

POINT I: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM DID NOT POSSESS REASONABLE AND ARTICULABLE SUSPICION TO CONDUCT AN INVESTIGATIVE STOP OF DEFENDANT.

[Raised Below.]

POINT II: THE TRIAL COURT ERRED IN FINDING THAT OFFICER HIGGINBOTHAM'S INITIAL CONTACT WITH DEFENDANT CONSTITUTED AN INVESTIGATIVE DETENTION; RATHER, THE POLICE ENCOUNTER BEGAN AS A LAWFUL FIELD INQUIRY. [Raised Below.]

We note initially the standard governing our review of this matter. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record . . . . [A] trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." State v. Robinson, 200 N.J. 1, 15 (2009) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)). Our review of its legal conclusions, on the other hand, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Our New Jersey Constitution provides similar protections. N.J. Const. art. I, ¶ 7. Not all encounters between a citizen and the police implicate the Fourth Amendment. For instance, police may approach a person in a public place and ask him if he is willing to answer some questions without any grounds for suspicion. State v. Rodriguez, 172 N.J. 117, 125-26 (2002). The individual has no obligation to answer and is free to move on. If, however, the individual's right to leave the scene is obstructed, even briefly, there has been a seizure of his person within the meaning of the Fourth Amendment. Id. at 126. The police "may stop for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an inquiry without any grounds or suspicion." State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002). "Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles." Ibid.

A field inquiry is "the least intrusive encounter" between a citizen and the police. State v. Pineiro, 181 N.J. 13, 20 (2004). It occurs when an officer approaches an individual and asks if he or she would be willing to answer some questions. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).

An investigatory stop, on the other hand, is more intrusive and

is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of the circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[State v. Davis, 104 N.J. 490, 504 (1986).]

"A key distinction between a field inquiry and an investigative stop is whether, considering the totality of the circumstances, a reasonable person would feel that the police had encroached on his or her freedom to leave." State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007).

The trial court here concluded that the presence of the three police vehicles at the scene transformed this encounter from a permissible field inquiry into an investigative detention. In our view, the trial court's analysis of this question was incomplete and did not recognize the testimony of Higginbotham that it was the practice of the department to notify nearby units that an officer was approaching a car to inquire further.

What the record does indicate is that Higginbotham was by himself, patrolling a high crime area at night. The scene was dark and not well-lit. He saw a vehicle parked, with several occupants, with the engine off and no lights. In light of his knowledge of the level of criminal activity in the area, which included drugs, burglaries and assaults, it was entirely reasonable for him to stop to talk to the occupants.

We should not view the events of that night in isolation. If Higginbotham was justified in approaching the car on a field inquiry, we are unable to conclude that constitutional principles required that he do so on his own, without the protection afforded to him by the presence of other officers. We cannot turn a blind eye to the inherent dangers officers face every day. Just as we have an obligation to ensure the rights of the citizens with whom the police come in contact, we have an equal obligation not to require that the police expose themselves to avoidable risks.

The trial court, moreover, in its oral opinion, completely disregarded Higginbotham's testimony that as he approached the car, he "immediately detected an odor of raw marijuana." That additional element provided ample support for all that followed.

The order granting defendant's motion to suppress is reversed, and the matter is remanded to the trial court for further proceedings.

Drug and DWI Law NJ

Thursday, October 27, 2011

NJSA 2C:35-5 a (1) Manufacturing, distributing or dispensing

NJSA 2C:39-4.1 Weapons; controlled dangerous substances and other offenses, penalties.

NJSA 2C:5-2 Conspiracy.

2C:35-10 a(1) Possession heroin

CONSTRUCTIVE POSSESSION 2C:2-1

Friday, August 05, 2011

STATE OF NEW JERSEY v. LAMBERT A-5323-09T4 May 5, 2011

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