Winter
2016 Municipal Court Law Review
N.J. Municipal Court - Law Review
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1. Major Change in law permits car search if police have probable cause to believe that the vehicle
contains contraband or evidence of crime
State v.
Witt 223 NJ 409 (2015) Warrantless auto search permitted on probable cause
The NJ Supreme Court held:
exigent-circumstances standard set forth in Pena-Flores is unsound in principle
and unworkable in practice. Citing Article I, Paragraph 7 of New Jersey’s State
Constitution, the Court returns to the standard articulated in State v.
Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based
on probable cause: The automobile exception authorizes the warrantless search
of an automobile only when the police have probable cause to believe that the
vehicle contains contraband or evidence of an offense and the circumstances
giving rise to probable cause are unforeseeable and spontaneous.
In this appeal, the Court addresses the constitutional standard governing
an automobile search and considers whether to continue to follow the standard
set forth in State v. Pena-Flores, 198 N.J. 6 (2009).
Defendant William L. Witt was charged in an indictment with second-degree
unlawful possession of a firearm and second-degree possession of a weapon by a
convicted person. The police initiated a stop of defendant’s car because he did
not dim his high beams when necessary, and a search of his vehicle uncovered
the handgun.
Defendant moved to suppress the gun on the ground that the police conducted
an unreasonable search in violation of the New Jersey Constitution. Defendant’s
sole argument was that the police did not have exigent circumstances to justify
a warrantless search of his car under Pena-Flores. At the suppression hearing,
Officer Racite testified that at approximately 2:00 a.m., while providing
backup for a motor-vehicle stop, he observed a car pass with its high beams
on.
The officer explained that a car must dim its high beams “as vehicles
approach.” Thus, Officer Racite stopped the vehicle, and requested backup.
Defendant, the driver, appeared intoxicated and was asked to exit his car.
Defendant then failed field-sobriety and balance tests, and Officer Racite
arrested him for driving while intoxicated. Defendant was handcuffed and placed
in the back of a patrol car. While Officer Racite searched defendant’s vehicle
for “intoxicants,” he found a handgun in the center console. With Pena-Flores
as its guide, the trial court found as follows: the officer had a right to stop
defendant’s car based on an “unexpected” occurrence and had probable cause to
search for an open container of alcohol, but did not have “sufficient exigent
circumstances” to conduct a warrantless search. Accordingly, the trial court
suppressed the handgun.
HELD by The NJ Supreme Court: The exigent-circumstances standard set forth in
Pena-Flores is unsound in principle and unworkable in practice. Citing Article
I, Paragraph 7 of New Jersey’s State Constitution, the Court returns to the
standard articulated in State v. Alston, 88 N.J. 211 (1981), for
warrantless searches of automobiles based on probable cause: The automobile
exception authorizes the warrantless search of an automobile only when the
police have probable cause to believe that the vehicle contains contraband or
evidence of an offense and the circumstances giving rise to probable cause are
unforeseeable and spontaneous.
1.
Resolution of the issue before the Court implicates the doctrine of stare
decisis. Because stare decisis promotes consistency, stability, and
predictability in the development of legal principles and respect for judicial
decisions, a “special justification” is required to depart from precedent. That
said, stare decisis is not an inflexible principle depriving courts of the
ability to correct their errors. Among the relevant considerations in
determining whether to depart from precedent are whether the prior decision is
unsound in principle and unworkable in practice. The Court, therefore, turns to consider
whether Pena-Flores is furthering the constitutional values that are
protected by the New Jersey Constitution and whether there is “special
justification” for departing from it.
2.
The use of telephonic search warrants has not resolved the difficult problems
arising from roadside searches, as the Court expected when it decided Pena-Flores.
Prolonged encounters on the shoulder of a crowded highway may pose an
unacceptable risk of serious bodily injury and death to both police officers
and citizens. Moreover, the seizure of the car and the motorist’s detention may
be a greater intrusion on a person’s liberty interest than the search is on a
person’s privacy interest. Finally, the dramatic increase in the number of
consent searches since Pena-Flores is apparently an unintended consequence of
that decision, reflecting the difficulty presented to police officers by the
Pena-Flores multi-factor exigent-circumstances standard. The Court is concerned
about consent searches in such great numbers, particularly in light of the
historic abuse of such searches and the coercive effect of a search request
made to a motorist stopped on the side of a road. The Court, therefore,
concludes that the current approach to roadside searches premised on probable
cause places significant burdens on law enforcement without any real benefit to
the public.
3. Although the Court determines that the exigent-circumstances standard
set forth in Cooke and Pena-Flores is unsound in principle and
unworkable in practice, it does not adopt the federal standard for automobile
searches because it is not fully consonant with the interests embodied in
Article I, Paragraph 7 of the State Constitution. The Court returns to the
Alston standard, which states that the automobile exception authorizes the
warrantless search of an automobile only when the police have probable cause to
believe that the vehicle contains contraband or evidence of an offense and the
circumstances giving rise to probable cause are unforeseeable and spontaneous.
The Court’s decision limits the automobile exception to on-scene warrantless
searches, unlike federal jurisprudence, which allows a police officer to
conduct a warrantless search at headquarters merely because the officer could
have done so on the side of the road.
4. The Court’s decision is a new rule of law to be applied prospectively.
Therefore, for purposes of this appeal, Pena-Flores is the governing
law. However, going forward, the exigent-circumstances test in Cooke and
Pena-Flores no longer applies, and the standard set forth in Alston for
warrantless searches of automobiles based on probable cause governs.
The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED
to the trial court for proceedings consistent with this opinion.
2. Odor of Marijuana probable cause for search.
State v Myers 442 NJ Super. 287 (App. Div. 2015)
The odor of
marijuana has long been held to provide probable cause of the commission of a
marijuana offense. Under the New Jersey Compassionate Use Medical Marijuana Act
(CUMMA), N.J.S.A. 24:6I-1 to -16, registered qualifying patients receive
registry identification cards, and their medical use of marijuana as authorized
by the CUMMA is exempt from criminal liability under N.J.S.A. 2C:35-18. Where,
as here, there is no evidence that the person suspected of possessing or using marijuana
has a registry identification card, the odor of marijuana still provides
probable cause of the commission of a marijuana offense. Here, the odor of
burnt marijuana emanating from defendant's car gave the officer probable cause
to arrest him for a marijuana offense committed in the officer's presence.
3. Hearsay Rules permitted introduction of drug and school zone map
State vs. Wilson 442 NJ Super. 224
(App. Div. 2015)
Admission of an official park-zone map, see N.J.S.A. 2C:35-7.1(e), does not
violate the Confrontation Clause.
4. Physical
contact not required if leaving the scene
State vs. Sene __ NJ Super. __
(App. Div. 2015) A-2256-13T1
The question of first impression presented on this
appeal is whether contact between defendant's vehicle and a victim is a
necessary element of leaving the scene of an accident in violation of N.J.S.A.
2C:11-5.1. Defendant was driving a taxi when a pedestrian stepped into his lane
of traffic. The pedestrian fell into the adjoining lane of traffic and was
killed when she was run over by another vehicle. Defendant did not stop his
taxi at the scene and left without speaking to anyone. A jury convicted him of
leaving the scene of a fatal motor vehicle accident under N.J.S.A. 2C:11-5.1.
On appeal, defendant contends that a necessary element to the crime is contact
between his vehicle and the victim. The Court disagrees and holds that such
contact is not an element of this crime. The Court also hold that N.J.S.A.
2C:11-5.1 is not unconstitutionally vague. We, therefore, affirm defendant's
second-degree criminal conviction.
5. Pat-down in safer area permitted
State v. Watts __ NJ __ (2015) (A-21-14)
The police did not act in an objectively unreasonable
manner in violation of the Federal and State Constitutions by conducting an
initial pat-down of defendant and detaining defendant for a thorough search in
a more controlled, safe, and secure location.
6. Double jeopardy bars crime prosecution if a
plea in municipal court
State vs. Miles __NJ Super __
(App. Div. 2015) A-2692-12T1
The defendant was arrested during an undercover drug operation. Defendant
was charged on a warrant with possession of a CDS with intent to distribute on
or near school property. Defendant was also charged on a summons with a
disorderly persons offense of possession of marijuana.
After defendant was indicted, he appeared pro se in municipal court via videoconference
after being incarcerated for a family matter. The disorderly persons drug
offense, which was not joined with the indictable offense, was pending. Without
the presence or participation of the State, but in accord with the existing
"practice," the judge amended the offense to loitering and then took
a plea from defendant. Predicated upon his plea, defendant sought to bar the prosecution
of the indictable charge.
The court held that the subsequent prosecution and
conviction on the indictable charge was barred under the "same
evidence" test, which is still recognized under state constitutional
principles. The court reasoned that the "fundamental fairness"
doctrine did not apply, notwithstanding the State's failure to join the
disorderly offense with the indictable charges and defendant's reasonable
expectation that his plea to the
disorderly offense charge resolved all charges, which arose out of his arrest.
7. Criminal mischief is grounds for domestic violence.
N.T.B. VS. D.D.B. 442 NJ Super. 205
(App. Div. 2015)
In this appeal, the court determined that a spouse's
damage of a door within the couple's jointly-owned marital home may constitute
the predicate act of "criminal mischief," N.J.S.A. 2C:17-3, through
harm to the "property of another," thereby supporting a finding of an
act of domestic violence pursuant to the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35.
8. Improper for Judge to file contempt proceeding then serve as Judge
of case Ippolito v Ippolito 443 NJ Super. 1 (App. Div. 2015)
In this
matrimonial action, the family judge instituted a contempt proceeding, pursuant
to Rule 1:10-2, against defendant upon the judge's receipt of a letter from
plaintiff's counsel claiming that defendant violated an order which prohibited
defendant from "threatening or intimidating any expert in this
matter." Because the judge presided over the very contempt proceeding he
initiated, failed to appoint counsel to prosecute the matter, and shifted the
burden of persuasion to defendant, the court vacated the order under review and
remanded the contempt proceeding to the assignment judge to designate another
judge to preside over the contempt proceeding.
9. 3rd party intervention still does not permit police to search
private home State v. Wright 221 NJ 456 (2015)
The
third-party intervention or private search doctrine does not exempt law
enforcement’s initial search of defendant’s home from the warrant requirement.
Absent exigency or some other exception to the warrant requirement, the police
must get a warrant to enter a private home and conduct a search, even if a
private actor has already searched the area and notified law enforcement.
10 Protective sweep of car’s interior not permitted
State v Robinson __ NJ Super. __ (App. Div. 2015) A-5600-12T3
The court reverses an order denying defendant's motion to
suppress the handgun seized in a "protective sweep" of his car.
Following
a routine late-night traffic stop on the Garden State Parkway, police dispatch
advised the patrol officer that defendant driver and one of his three
passengers had open warrants and were known to carry weapons. Deciding to
proceed "tactically," five officers approached with guns drawn and
ordered all occupants out of the car. The two men with warrants were arrested
and placed in patrol cars. Neither of the two remaining passengers possessed a
driver's license. Because there are no facts in the record to support a
reasonable suspicion on the part of the officer that the unlicensed drivers
were dangerous and could return to the car to obtain immediate access to a
weapon, the court deems the search unreasonable.
Judge Nugent dissents, concluding the totality of
circumstances justified both the officer's belief that a gun was in the car and
his protective sweep for the safety of the officers on the scene as well as the
public under the community caretaking doctrine.
Index
2. Odor of Marijuana probable cause for stipulation.
State v Myers
3. Hearsay Rules permitted introduction of drug and school zone map
State vs. Wilson
4. Physical
contact not required if leaving the scene
State vs. Sene
5. Pat-down in safer area permitted
State v. Watts
6. Double jeopardy bars crime prosecution if a
plea in municipal court
State vs. Miles
7. Criminal mischief is grounds for domestic violence.
N.T.B. VS. D.D.B
8. Improper for Judge to file contempt proceeding then
serve as Judge of case Ippolito v Ippolito
9. 3rd party intervention still does not permit police
to search private home State v. Wright
10 Protective sweep of car’s interior not permitted
State v Robinson
11. Stop of car and search improper based on strange
pause
State
v. V.A.-M.
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