STATE OF NEW JERSEY V. DELORES RANDALL A-2495-08T4

STATE OF NEW JERSEY V. DELORES RANDALL A-2495-08T4
07-26-10

A prosecutor may not condition a defendant's participation
in the pre-trial intervention (PTI) program upon an agreement by
the defendant to plead guilty. Here the prosecutor erred in
doing so. However, the denial of participation in PTI is
upheld, nonetheless, because defendant had been violently and
directly combative with a law enforcement officer and yet failed
to acknowledge any responsibility for her conduct, claiming she
had been passive despite a contradictory video. Since the
program may not be effective for people who refuse to accept any
responsibility for their conduct, it was not an abuse of
discretion, under the circumstances here, for the prosecutor to
deny defendant participation in PTI.

S.D. v. M.J.R. A-6107-08T2

S.D. v. M.J.R. A-6107-08T2 07-23-10

In this action pursuant to the Prevention of Domestic
Violence Act (PDVA), we held that the Free Exercise Clause of
the First Amendment does not require a Family Part judge to
exempt defendant, a practicing Muslim, from a finding that he
committed the predicate acts of sexual assault and criminal
sexual contact and thus violated the PDVA. We also found that
the judge was mistaken in failing to enter a final restraining
order in the matter

State v. Walker(A-40-09)

State of New Jersey v. Shem Walker (A-40-09)
7-28-10

Based on the evidence presented in the criminal trial in this matter, the trial court should have sua sponte charged the jury with the statutory affirmative defense to felony murder. However, because the jury’s findings negated most of the factors required to establish the affirmative defense, a new trial is not warranted.

State v. Richard Clarke (A-11-09) State v. William T. Dolan (A-12-09)

State v. Richard Clarke (A-11-09) State v. William T. Dolan (A-12-09)7-21-10


An informal hearing is sufficient for the Drug Court to give full and fair consideration to a defendant’s application for admission into the Drug Court program. However, because it is not clear whether the trial court applied the correct legal standard for admission under the “second track” of the requirements, each case is remanded for further proceedings.

State v. Eugene Basil (A-34-09)

7-20-10 State v. Eugene Basil (A-34-09)

The on-scene identification by a citizen informant and
corroborative discovery of the weapon gave officers
probable cause to arrest defendant and, therefore,
defendant’s volunteered statement to police should not
have been suppressed as the product of an unlawful
arrest. In addition, the members of the Court being
equally divided, the judgment of the Appellate
Division is affirmed, holding that the non-appearing
witness’s testimonial hearsay statement was
inadmissible under the Sixth Amendment Confrontation
Clause. The admission of the statement had the clear
capacity to cause an unjust result and was not
harmless error beyond a reasonable doubt

No Statement Admissible by Non-Appearing Witness. State v. Basil 202 NJ 570 (2010

7-20-10 State v. Eugene Basil (A-34-09)

The on-scene identification by a citizen informant and
corroborative discovery of the weapon gave officers
probable cause to arrest defendant and, therefore,
defendant’s volunteered statement to police should not
have been suppressed as the product of an unlawful
arrest. In addition, the members of the Court being
equally divided, the judgment of the Appellate
Division is affirmed, holding that the non-appearing
witness’s testimonial hearsay statement was
inadmissible under the Sixth Amendment Confrontation
Clause. The admission of the statement had the clear
capacity to cause an unjust result and was not
harmless error beyond a reasonable doubt

The issues before the Court are: 1) whether the police had probable cause to arrest defendant, Eugene Basil; and 2) whether the admission of an out-of-court statement at trial violated defendant's right of confrontation guaranteed by the Sixth Amendment to the United States Constitution.

Defendant was charged by a Hudson County grand jury in a two-count indictment with second-degree possession of a shotgun with the purpose to use it unlawfully against a person or property of another, N.J.S.A. 2C:39-4(a), and third-degree knowingly possessing the shotgun without having first obtained a firearm purchaser identification card, N.J.S.A. 2C:39-5(c)(1). In a pre-trial motion, defendant claimed that the police did not have probable cause to arrest him and, therefore, subjected him to an unreasonable seizure in violation of his constitutional rights. He sought to suppress an incriminating statement he allegedly made after he was taken into custody. At the suppression hearing, Officer Anthony Ruocco of the Jersey City Police Department testified that on February 12, 2005, at approximately 1:00 a.m., he and Officer William Sullivan, as well as other police units, responded to a report of a man with a shotgun at 199 Bidwell Avenue. Upon arrival at the scene, Office Ruocco observed several black males, including defendant, in the area of 199 Bidwell Avenue. He was approached by a young black woman who looked to be eighteen- or nineteen-years old and "came from around the corner." The woman told Officer Ruocco that defendant had pointed a shotgun in her direction and had uttered words to the effect of, "Get off the corner." The woman also stated that she saw defendant throw the shotgun underneath a black Cadillac. Officer Ruocco testified that as she spoke to him, the woman was shaking a bit and her voice was elevated. Officer Sullivan, along with Officer Mecca, recovered the shotgun from underneath the Cadillac. Officers approached and questioned defendant about the report of the shotgun. Following the young woman's statement and the discovery of the shotgun, defendant was placed in the back of a police car.

The young woman told Officer Ruocco that she lived in the area but nothing else about herself. She said that she did not want to become involved in the case "because she was scared for her safety." The young woman left the scene; Officer Ruocco did not get her name, address, or telephone number. Officer Ruocco transported defendant in the back seat of a patrol car to the district police station. Officer Ruocco did not consider defendant to be under arrest at that point, however, if defendant had refused to go, the officer would have placed him under arrest for obstruction. Once inside the station, defendant made the following comment to Officer Ruocco: "What the problem, you guys don't do your job. So I went inside and got my shotgun." At that point, Officer Ruocco placed defendant under arrest, handcuffed him, and gave him the Mirandawarnings.

Defendant also testified at the suppression hearing, presenting a different version than the one described by both the female witness and Officer Ruocco. Defendant said that on the night in question he was involved in activities related to his grandmother's funeral and on that evening he had brought food to his house at 204 Bidwell Ave. where family and friends were gathering. At the time the police arrived, he was standing outside his home. Defendant denied possessing the shotgun found under the Cadillac, pointing the weapon at anyone, or making the incriminating statement attributed to him by Officer Ruocco.

The court found Officer Ruocco's credibility to be "excellent," and concluded that the police engaged in a lawful investigative detention based on the statement of the citizen informant and the discovery of the shotgun. The court denied the motion to suppress defendant's incriminating statement, finding that, based on defendant's "spontaneous admission to possessing the shotgun, the police had probable cause to arrest him."

The matter proceeded to trial. Defendant challenged the admissibility of the non-appearing woman's statement to Officer Ruocco - identifying him as the person wielding the shotgun - on hearsay and confrontational grounds. The court determined that the statement was admissible under the excited-utterance exception to the hearsay rule, N.J.R.E. 803(c) (2). The State presented three witnesses. Officer Ruocco stated that he and Officer Sullivan were dispatched to the area of 199 Bidwell Avenue in Jersey City on the report of a man with a shotgun. On their arrival, defendant was standing in front of 199 Bidwell Avenue. While Officer Sullivan "was holding [defendant]," Officer Ruocco was approached by an eighteen- or nineteen-year-old black woman who "came from around the corner." She told the Officer that she was standing on the corner (apparently with others) when defendant "pointed a shotgun at their direction and stated get off the corner." She also "stated that the shotgun was thrown under a black Cadillac." The rest of Officer Ruocco's testimony was essentially consistent with his testimony at the suppression hearing.

Officer Sullivan gave a somewhat different account of the events. He testified that after he and Officer Ruocco arrived at the scene, a black female walked across the street and approached them. She said, "[T]hat's him," pointing to defendant, "he's the one with the gun." The two officers then told defendant to halt, and he replied, "What do you want me for?" Simultaneously, the woman advised the officers that the gun was underneath a black Cadillac. With Officer Ruocco in control of defendant about ten feet from the Cadillac, and with the arrival of another police car, Officer Sullivan retrieved the unloaded shotgun from underneath the car. According to Officer Sullivan, the woman stated that she did not want to be a witness and, therefore, he did not get her name. Fearing that people on the street would become disruptive, Officers Sullivan and Ruocco immediately transported defendant to the police station. Officer Sullivan stated that the shotgun was not dusted for fingerprints because of defendant's reported admission to Officer Ruocco. Officer Sullivan also testified that in his presence defendant denied owning or having anything to do with the shotgun. Detective Daniel Diaz of the Hudson County Prosecutor's Office testified that the shotgun recovered under the Cadillac was operable. Defendant presented two witnesses; both were friends who testified that they had been with defendant earlier in the day because of his grandmother's funeral, had been with him while on the corner of Bidwell Avenue, and never saw him in possession of a shotgun. At the conclusion of trial, the jury found defendant guilty of third-degree knowingly possessing a shotgun without first having obtained a firearm's purchaser identification card. The trial court sentenced defendant to an extended term of imprisonment, imposing a ten-year term with a five-year period of parole ineligibility.

The Appellate Division reversed defendant's conviction, finding two separate grounds of error. First, the appellate panel determined that, for the purposes of the Fourth Amendment, the warrantless detention of defendant, near his home, was the equivalent of an arrest and had to be supported by probable cause. Relying largely on the United States Supreme Court case Florida v. J.L., the panel found that the woman's accusations that defendant had pointed a shotgun at her, even though corroborated by the discovery of the gun where she said it was discarded, did not satisfy the constitutional standard for probable cause. The court concluded that there was "no reason to believe" that the woman, who refused to identify herself, was speaking the truth." Having reasoned the defendant was unlawfully seized by the police, the panel then held that his "alleged confession" was a direct result of the unconstitutional seizure and should have been suppressed. The panel also determined that the woman's hearsay statement to Officers Ruocco and Sullivan was introduced in violation of the Confrontation Clause of the Sixth Amendment, as construed by Crawford v. Washington, Davis v. Washington, and this Court's recent decision in State ex rel. J.A. The Appellate Division noted that, under the United States Supreme Court's Confrontation Clause jurisprudence, a testimonial hearsay statement is inadmissible "unless there is a showing that the declarant is unavailable, and that the defendant had a previous opportunity for cross-examination." In particular, the panel held that the woman's hearsay statement was made when the suspect no longer possessed the weapon or posed a danger and "for the purpose of identifying the defendant to the police so that he could be the subject of criminal prosecution." Because the woman's statement constituted the sole remaining evidence of his guilt, the Appellate Division reversed defendant's conviction for unlawful possession of a weapon.

The Supreme Court granted the State's petition for certification.

HELD: The on-scene identification by a citizen informant and corroborative discovery of the weapon gave officers probable cause to arrest defendant and, therefore, defendant's volunteered statement to police should not have been suppressed as the product of an unlawful arrest. In addition, the members of the Court being equally divided, the judgment of the Appellate Division is affirmed, holding that the non-appearing witness's testimonial hearsay statement was inadmissible under the Sixth Amendment Confrontation Clause. The admission of the statement had the clear capacity to cause an unjust result and was not harmless error beyond a reasonable doubt.

All six members of the Court join in paragraphs 1 and 2. JUSTICE ALBIN is joined by JUSTICES LaVECCHIA and WALLACE in paragraphs 3-7.

1. The Fourth Amendment permits a police officer to make a warrantless arrest of a defendant in a public place provided that the officer has probable cause to believe the defendant committed a crime. In determining whether there was probable cause to make an arrest, a court must look to the totality of the circumstances, viewing those circumstances from the standpoint of an objectively reasonable police officer. In assessing the facts available to a police officer, important considerations are the witness's veracity, reliability, and basis of knowledge. Generally speaking, information given by a citizen directly to a police officer will receive greater weight than information received from an anonymous tipster. (pp. 14-17)

2. From the standpoint of an objectively reasonable police officer, the combination of an identifiable citizen's account of events that she witnessed first hand minutes earlier and the discovery of corroborative evidence - the shotgun with which she was purportedly threatened - in the location she described provided probable cause to arrest defendant. Based on the totality of the circumstances, the police had a well-grounded suspicion that defendant had committed a crime. Given the Court's holding, it makes little difference whether defendant's custodial status was characterized as an investigative detention or an arrest. However, the degree of the restraint on defendant's freedom constituted, for Fourth Amendment purposes, an arrest triggering the probable cause requirement. (pp. 17-21)

3. The female witness's out-of-court statement identifying defendant as the gunman was the critical piece of evidence determining whether defendant was guilty of unlawfully possessing a shotgun. The woman was not called as a witness at trial, presumably because she was "unavailable" due to the State's inability to locate her. The police officers at the scene allowed her to leave without obtaining any identifying information because she expressed fear for her safety. However, defendant never had a prior opportunity to cross-examine her. In Crawford v. Washington, the United States Supreme Court declared that the Sixth Amendment's Confrontation Clause prohibited the use of an out-of-court testimonial statement against a criminal defendant unless the witness was unavailable and the defendant was given a prior opportunity to cross-examine her. The Confrontation Clause proscribes "the use of out-of-court testimonial hearsay, untested by cross-examination, as a substitute for an in-court testimony." Out-of-court statements that contravene the Confrontation Clause include both testimonial statements elicited by the police during interrogations and testimonial statements volunteered to the police. A statement about a relevant past event made to a police officer during a criminal investigation meets the Sixth Amendment's formality and solemnity requirement for a testimonial statement. Crawford does not bar the use of all hearsay at trial, however. If an out-of-court statement is non-testimonial, it is admissible because the constitutional right to confrontation does not apply to a non-testimonial statement that falls within a recognized hearsay exception. (pp. 21-26)

4. In the companion cases of Davis v. Washington and Hammon v. Indiana, the Supreme Court applied the principles underlying Crawford and defined in greater detail the distinction between non-testimonial and testimonial statements. Statements are non-testimonial when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. In contrast, statements are testimonial when circumstances objectively indicate that there is no ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (pp. 26-32)

5. The government bears the burden of proving the constitutional admissibility of a statement in response to a Confrontation Clause challenge. Here, the non-testifying witness's statement implicating defendant was testimonial, that is, the statement was the equivalent of bearing witness against defendant, and he was denied the opportunity of confronting his accuser. The State has not shown that this case presents the type of ongoing emergency described in Davis that would justify an end run around the Confrontation Clause. While there was some difference in the testimony presented by Officers Ruocco and Sullivan, there were none that would change the outcome of the analysis. In both officers' accounts the witness returned to the scene - after she saw the presence of the police - to assist in the investigation into past criminal conduct. In both accounts, the witness knew that the shotgun was under the Cadillac when she spoke to the officers. In both accounts, like in Hammon, the witness was separated from defendant. Unlike the factual scenario in Davis, the witness was not "speaking about events as they were actually happening" or calling for help against a true physical threat. The primary purpose of this interrogation was to investigate a possible crime and, therefore, a non-testifying witness's statement about how she was threatened with the gun was testimonial and inadmissible. To too broadly construe the definition of a non-testimonial statement for Sixth Amendment purposes would swallow the constitutional preference for the in-court testimony of a witness and eviscerate the procedural protections provided by the Confrontation Clause. (pp. 32-39)

6. The Court should proceed with caution before finding an out-of-court statement to be non-testimonial when the statement is the critical piece of evidence in an identification case. The perils of identification testimony, even when the witness is subject to robust cross-examination, are well documented. Identification was the key issue in this case and yet the woman who witnessed the events was not in court to respond to questions concerning her credibility or the reliability of her observations. To open wide the door to hearsay identification made by non-testifying witnesses might exponentially increase the likelihood of misidentifications. Here, the police chose not to determine the witness's identity. Condoning such practice would give a perverse incentive to the police not to obtain basic identifying information from its star witness. The cost to the system of justice by the State's failure to take reasonable steps to produce a witness whose testimony was critical to the defendant's fate cannot be overlooked. Not securing the name and address of the State's key witness, but ubut using the statement of the witness to convict the accused, makes hollow defendant's right of confrontation. (pp. 39-42)

7. The dissent would remand the Confrontation Clause issue to the trial court; however, a remand would serve little purpose because it will not settle the conflict in the testimony of the two officers, even if that conflict were meaningful. We must accept that they have different recollections. To the extent that the characterization of the woman's statement as testimonial or non-testimonial depends on whether one believes Officer Ruocco or Officer Sullivan, the State cannot conceivably meet its burden of establishing an exception to the Confrontation Clause. Thus, accepting the whole of the two officers' testimony, the State did not meet its burden of proving that the unavailable witness's statement was non-testimonial. Exceptions to constitutional rights - including exceptions to the Confrontation Clause - must be narrowly drawn.

Three members of the Court agree that the non-appearing witness's hearsay statement was testimonial and inadmissible, and three members do not. Because the admission of the statement could not be harmless beyond a reasonable doubt, the judgment of the Appellate Division holding that the non-appearing witness's statement implicating defendant in the crime was a testimonial statement barred by the Sixth Amendment's Confrontation Clause is affirmed by an equally divided court. The Court reverses that part of the judgment of the Appellate Division that suppressed defendant's verbal admission to the police on the ground that defendant was arrested without probable cause The matter is remanded for a new trial. (pp. 42-45)

Judgment of the Appellate Division is AFFIRMED IN PART, REVERSED IN PART and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER, dissenting in part, joined by JUSTICES RIVERA-SOTO and HOENS, agrees with the majority's carefully reasoned conclusion that the police had probable cause to arrest defendant. The statement defendant volunteered afterward should not have, therefore, been suppressed. As to the second issue presented, which addresses the admissibility of certain testimony under Crawford v. Washington, the facts matter a great deal. The different versions of events offered by the two officers were based on the trial testimony of those officers at the scene. The trial judge made no factual findings about their relevance and apparent inconsistencies for good reason: nobody raised any Crawford question at the trial level. The issue first surfaced in the reply brief to the Appellate Division. The pivotal factual finding that all danger had passed by the time the woman spoke to the police should not have been made by appellate court judges who did not hear the live testimony presented. Instead this case should be remanded to the trial court to make proper findings and analyze them under Crawford and its progeny.

State v. Alice O’Donnell (A-54-09_

State v. Alice O’Donnell (A-54-09) 7-20-10

The judgment of the Appellate Division, which upheld
the trial court’s denial of defendant Alice
O’Donnell’s motion to suppress evidence, is affirmed
substantially for the reasons expressed in Judge
Skillman’s opinion.

State v. Graciano Martinez Rosales (A-32-09) 7-19-10

State v. Graciano Martinez Rosales (A-32-09) 7-19-10

On the evidence presented, the trial court properly
exercised its discretion to exclude the proposed
expert testimony that defendant confessed to a crime
he did not commit.

Protective Sweep After Gunshot Sometimes Permitted on Private Property. State v. Davila 203 NJ 97 (2010)

State v. Johnnie Davila (A-20-09) 7-14-10

A protective sweep conducted on private property is
not per se invalid merely because it does not occur
incident to an arrest. Law enforcement officers may
conduct a protective sweep only when (1) the officers
are lawfully within private premises for a legitimate
purpose, which may include consent to enter; and (2)
the officers on the scene have a reasonable
articulable suspicion that the area to be swept
harbors an individual posing a danger. The sweep will
be upheld only if it is (1) conducted quickly, and (2)
restricted to areas where the person posing a danger
could hide. When an arrest is not the basis for entry,
the police must be able to point to dangerous
circumstances that developed once the officers were at the scene.

Decided July 14, 2010

LaVECCHIA, J., writing for a unanimous Court.

In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court authorized a "protective sweep" exception to the Fourth Amendment's warrant requirement, recognizing that law enforcement officers must be able to conduct, when necessary for safety, a "quick and limited search" of a home incident to an arrest. In this appeal, the Court considers Buie in the non-arrest setting, where police had consent to enter, but lacked probable cause to arrest or to search the premises.

On November 13, 2003, defendant Johnnie Davila and three acquaintances embarked on a crime spree involving a car theft and two homicides. Police found the stolen vehicle in Newark. A cell phone that was missing from the vehicle, presumably taken by a perpetrator, was used after the homicides. Seven calls were made to an apartment in Newark, with the last call at 1:01 a.m. on November 15. Eleven hours after that call, a joint police team, including six plain-clothed officers, headed to the apartment. The officers, admittedly aware that they lacked probable cause, did not attempt to get a search warrant. According to the testifying officer, they knocked on the door; an overnight guest, Jayaad Brown, answered; the officers identified themselves and asked if they could come inside; and Brown let them in. Brown testified that he did not invite them inside, and when he opened the door, they pointed guns at him and restrained him. The testifying officer conceded Brown's behavior was not threatening and the officers did not perceive anything suspicious occurring in the apartment. Once inside, the officers immediately dispersed throughout the apartment to "secure any other individuals" that may have been inside because of suspicion that the occupants might be "connected to the homicides." Cocaine was found on a dresser in the rear bedroom. As a result of that discovery, everyone in the apartment, including Davila, was arrested. While making the arrests, the officers found the stolen cell phone in the middle bedroom where Davila had been found.

Davila gave a full statement implicating the three other individuals. All four confessed to participating in the homicides. Davila and his co-conspirators were charged with murder, robbery, weapons offenses, and theft. Davila moved to suppress the evidence seized from the apartment as the product of an illegal search and seizure. The court did not credit Brown's testimony and relied on the officer's testimony, finding that the officers were lawfully in the apartment based on consent. The court also held that the search was a valid protective sweep because police were investigating a double murder in Newark that had occurred within the past 48 hours, and a cell phone tied to the murders was used to call the apartment. The court held that the evidence seized was admissible under the plain-view exception to the warrant requirement.

Davila pleaded guilty to two counts of felony murder and conspiracy to commit robbery. He was sentenced to two concurrent thirty-year terms, with a thirty-year period of parole ineligibility. Davila appealed, arguing that the trial court improperly denied the motion to suppress because the police search was unlawful. The Appellate Division rejected that argument and affirmed. The Court granted certification to review whether the search of the apartment constituted a valid protective sweep, exempt from the Fourth Amendment's warrant requirement. 200 N.J. 368(2009).

HELD: A protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest. Law enforcement officers may conduct a protective sweep only when (1) the officers are lawfully within private premises for a legitimate purpose, which may include consent to enter; and (2) the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. The sweep will be upheld only if it is (1) conducted quickly, and (2) restricted to areas where the person posing a danger could hide. When an arrest is not the basis for entry, the police must be able to point to dangerous circumstances that developed once the officers were at the scene.

1. The first issue is whether police were lawfully in the apartment. The court's conclusion that Brown consented to police entry rested on credibility findings, for which the record contains adequate, substantial and credible support. (pp. 14-16)

2. The Fourth Amendment protects the people's right to be secure in their persons and houses against unreasonable searches and seizures. A warrantless search in a home is presumptively unreasonable. The State bears the burden of demonstrating that a warrantless search is reasonable because it fits within a recognized exception to the warrant requirement. Here, the search depends on the protective sweep exception. The issue is one of first impression in New Jersey. (pp. 16-19)

3. In Maryland v. Buie, the United States Supreme Court defined a "protective sweep" as a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." For guidance, Buie turned to the reasonableness and balancing principles applied in Terry v. Ohio and Michigan v. Long, and directed a three-part test for courts reviewing the validity of a protective sweep. First, a protective sweep is valid if, incident to an arrest, police restrict the search to the immediate vicinity of the arrest from which an attack might be launched. Police seeking to expand the search area may do so only if there are specific facts that would cause a reasonable officer to believe that an individual is on the premises and poses a danger to those present. Second, the search must be "quick," lasting no longer than necessary to dispel the reasonable suspicion of danger. Third, the officers may only engage in a limited protective search, which must be narrowly confined to a cursory visual inspection of those places in which a person might be hiding. (pp. 19-23)

4. New Jersey has long shared the concerns for individual rights and officer safety that underpin Terry and Long. The sweep authorized in Buie is aligned with an evolution of familiar principles adhered to in this State, which provide officers with critical safety tools. Buie established a valuable, workable standard for evaluating protective sweeps incident to an arrest. The issue now is whether the protective sweep exception should be more broadly available to officers who are lawfully present in private premises for some purpose other than to make an arrest, and, if so, under what circumstances. (pp. 23-24)

5. The result in Buie did not hinge on the fact that an arrest took place. Rather, the probable cause to arrest Buie provided justification for the police presence in the home. The Court expressed serious concern for officer safety when certain circumstances are present. In both Terry and Long, the limited intrusion resulting from the search was justified by the ability of the officer to point to "specific and articulable facts, which taken together with rationale inferences from those facts," indicated that the safety of the officer or the public was in danger. Buie applied the same logic to extend the standard for a protective search into a home. There is no basis from Buie to justify restricting protective sweeps to the arrest context. That conclusion is bolstered by the undeniable national trend toward greater availability of protective searches, which is marked by the same officer-safety concerns that animated Buie's balancing test, and which demonstrates a general agreement that those concerns are not exclusive to the in-home arrest context. This Court agrees and holds that a protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest. (pp. 24-31).

6. At the same time, a protective sweep is not automatically valid every time officers are lawfully within a home. Courts have taken particular care in considering protective sweeps in the non-arrest context. The Fifth Circuit expressed concern about protective sweeps used where police presence was based on consent to enter. It reformulated the Buie test into an inquiry examining whether police were lawfully on the premises; the officers had a reasonable articulable suspicion that the area to be swept harbored an individual posing a danger; the sweep was limited to the places in which a person could hide; and the sweep took place within narrow time constraints. The Second Circuit also voiced concern, commenting that when police gain access to a home by consent, generously construing Buie would enable officers to obtain consent as a pretext for a warrantless search. Also, the purpose of a protective sweep is to discover individuals, not contraband. (pp. 31-37)

7. A protective sweep of a home may only occur when (1) officers are lawfully within the premises for a legitimate purpose, which may include consent to enter; and (2) the officers have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger. Where those substantive conditions are met, as a matter of procedure, the sweep will be upheld only if (1) it is cursory, and (2) it is limited in scope to locations in which an individual could be concealed. In a non-arrest setting, the legitimacy of the police presence must be probed. There must be a careful examination of the basis for the asserted reasonable, articulable suspicion of dangerous persons on the premises. The court should examine whether the request for entry was legitimate and whether the officers can identify articulable reasons for suspecting potential harm from a dangerous person that arose once the officers arrived at the scene. The record in this case suggests that the officers, who admittedly lacked probable cause and cited to no new development, arrived with the intent to perform a protective sweep. If that turns out to be accurate, then the search was unconstitutional and its fruits must be suppressed. (pp. 37-40)

8. In summary, in the warrantless search context, the State bears the burden of proving the reasonableness of a protective sweep. The State must prove that the police presence occurred pursuant to a recognized exception to the warrant requirement. The court must consider the validity of the basis asserted to justify the police presence, and whether there was an articulable need to perform a sweep due to a perception of danger truly unforeseen and spontaneous. On remand, the court will need to make a specific finding that the police went to the apartment for a legitimate purpose, not with the intent to obtain consent as a pretext for conducting a warrantless search. The police must be able to articulate specific facts demonstrating a reasonable suspicion, developed after they arrived, that another person is present, as well as a reasonable basis for believing that the person present is a danger to those at the scene. The search must be confined to a cursory visual inspection of places where a person might hide, and it must last no longer than needed to dispel the reasonable suspicion of danger. (pp. 40-44)

9. In this case, there was sufficient evidence for the trial court to find that the officers entered the apartment with consent. Questions remain about the legitimacy of the investigative technique used. The trial court is directed to consider specifically whether the knock-and-talk technique used by the officers was a pretext to gain access to conduct an unconstitutional search. The factors established by the trial court as providing articulable suspicion, though relevant, are insufficient to justify the invasion that occurred in this case. The Court reverses and remands for supplemental proceedings to determine whether the police entry can be shown to meet the directives contained in the Court's opinion. (pp. 44-46)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for supplemental proceedings to determine whether the police entry meets the directives contained in the Court's opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA's opinion.

DL Suspension on Traffic Ticket Requires Willful Violation. State v. Moran 202 NJ 311 (2010)

DL Suspension on Traffic Ticket Requires Willful Violation. State v. Moran 202 NJ 311 (2010)

The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not “hidden,” and defendant, like all motorists, is presumed to know the law. To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term “willful violation” contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges.

Argued April 27, 2010 -- Decided July 13, 2010

ALBIN, J., writing for a unanimous Court.

Defendant Laura Moran was found guilty in Aberdeen Municipal Court of reckless driving (N.J.S.A. 39:4-96), as well as improper display of a license plate (N.J.S.A. 39:3-33) and obstruction of the windshield (N.J.S.A. 39:3-74). In addition to the penalties imposed for violation of those statutory provisions, the municipal court judge suspended Moran's driving privileges for forty-five days under N.J.S.A. 39:5-31.

During the proceedings in municipal court, Moran represented herself. The State called Officer Roger Peter of the Aberdeen Township Police Department to testify about the observations of Moran's vehicle he had made while parked in a patrol car near the intersection of Lloyd Road and Route 34 at around 2:00 a.m. on August 3, 2007. Officer Peter testified that he observed a tractor-trailer stopped at a red light in the northbound lane of Route 34 and that behind it was another vehicle. Just as the light was turning green, Moran proceeded northbound on Route 34 in the left-turn-only lane and passed the two vehicles without making the left turn. Instead, she crossed the Lloyd Road intersection and cut in front of the tractor-trailer. After stopping Moran's car, Officer Peter noted that she was uncooperative, refusing to hand over the appropriate documentation or to step out of her car. With the assistance of a back-up officer, Officer Peter was able to open Moran's car door, whereupon she voluntarily exited the vehicle. Officer Peter determined that Moran was not intoxicated. She was issued summonses for reckless driving, improper display of a license plate, and obstruction of the windshield. Moran was highly emotional, obstreperous, and disruptive during the municipal court proceedings. Before sentencing, the municipal court judge reviewed Moran's history of numerous motor vehicle infractions. The court justified the imposition of the license suspension under N.J.S.A. 39:5-31 based on both Moran's driving in a "willful and wanton [manner] in violation of the rights and safety of others and [her]self" and her "demeanor" in court.

The Superior Court, Law Division, in a trial de novo, upheld Moran's reckless-driving conviction and imposed the same sentence, finding that her willful violation of the reckless-driving statute, combined with her past driving infractions, justified the license suspension. During this stage of the proceedings, Moran was represented by appointed counsel and challenged the constitutionality of N.J.S.A. 39:5-31, which empowers the court to suspend a defendant's license. The Law Division rejected Moran's constitutional challenge that the statute invested municipal court judges with "unbridled discretion" and did not give fair notice of the penalty.

On appeal, the Appellate Division upheld the constitutionality of N.J.S.A. 39:5-31. The panel found that Moran had "fair notice" of the potential for a driver's license suspension, as contained in the statute, because it is the published law of the State and every person is presumed to know the law. In addition, the appellate panel rejected Moran's arguments that the statutory language of N.J.S.A. 30:5-31 is constitutionally overbroad and vague. The panel appreciated Moran's concern that no guidelines or standards are provided nor is a limit on the length of the suspension set; however, it concluded that arbitrary municipal court sentences could be corrected at a sentencing de novo in the Law Division and by the process of appellate review. The panel did offer guidance to judges in exercising their discretion whether to suspend a license under the statute and, if so, the length of such suspension. The panel directed judges to consider: 1) the factors discussed in Cresse v. Parsekian; 2) relevant aggravating and mitigating factors in the Code of Criminal Justice that could be tailored to motor vehicle offenses; and 3) the length of suspensions authorized for specific offenses in the Motor Vehicle Code as a basis for comparison and proportionality. Applying those standards, the panel reviewed Moran's extensive history of driving infractions, the seriousness of the offense, and the need for deterrence and concluded that the forty-five day suspension constituted an appropriate exercise of discretion.

The Supreme Court granted Moran's petition for certification.

HELD: The license suspension provision of N.J.S.A. 39:5-31, which is published in the Motor Vehicle Code of the New Jersey Statutes Annotated, is not "hidden," and defendant, like all motorists, is presumed to know the law. To ensure that license suspensions meted out pursuant to N.J.S.A. 39:5-31 are imposed in a reasonably fair and uniform manner, so that similarly situated defendants are treated similarly, the Court today defines the term "willful violation" contained in N.J.S.A. 39:5-31 and enunciates sentencing standards to guide municipal court and Law Division judges.

1. The Court agrees with the Appellate Division that Moran was on fair notice of the penalty provisions that flowed from her reckless-driving violation. Ignorance of a sentencing provision that is published in the codified laws of this State is not a defense because every person is presumed to know the law. The claim that the penalty provision of the statute is "hidden" from reckless drivers is not supported by general legal principles or reality. The sentencing-enhancement provision of N.J.S.A. 39:5-31 is in the Motor Vehicle Code, not secreted in other statutory schemes; therefore, the Court rejects Moran's argument that she was not on "fair notice" of a potential license suspension for reckless driving. (Pp. 9-12)

2. The term "willful" is used in both N.J.S.A. 39:4-96 and in N.J.S.A. 39:5-31. The term also is found in many provisions of the New Jersey Statutes Annotated. When read in context with related provisions, the word willful conveys a different import in N.J.S.A. 39:4-96 and N.J.S.A. 39:5-31. In the reckless-driving statute, the word "willful" bespeaks a deliberate or intentional disregard of the lives and property of others in the manner in which a driver operates a vehicle. In N.J.S.A. 39:5-31, the term "willful" suggests a deliberate violation of certain motor-vehicle statutes. A willful violation of the reckless-driving statute necessarily involves a state of mind and conduct that exceeds reckless driving itself. Thus, to trigger the license-suspension provisions of N.J.S.A. 39:5-31, a driver must engage in an aggravated form of reckless driving. Reckless drivers act in a way that is likely to endanger a person or property, and those willfully violating the reckless driving statute engage in conduct that is highly likely to endanger a person or property. The difference between reckless driving and a willful violation of the reckless-driving statute is a matter of degree. This distinction will ensure that municipal court judges invoke N.J.S.A. 39:5-31 only in reckless-driving cases that present aggravating circumstances. (Pp. 12-16)

3. N.J.S.A. 39:5-31 does not provide standards or guidelines to channel judicial discretion in the determination of whether to impose a license suspension and for how long. The loss of driving privileges for a reckless-driving conviction is a consequence of magnitude and the need for standards governing license suspensions touches on core constitutional principles. Random and unpredictable sentencing is anathema to notions of due process and disparate sentencing undermines public confidence in the fairness of our justice system. Thus, in setting the necessary sentencing standards and guidelines for municipal and Law Division judges, the Court, pursuant to Article VI, Section 2, Paragraph 3 of the New Jersey Constitution, exercises its supervisory authority over our court system for the purpose of achieving just ends. (Pp. 16-22)

4. The Court directs municipal court and Law Division judges to consider the following factors in determining whether to impose a license suspension under N.J.S.A. 39:5-31, and, if so, the length of the suspension: 1) the nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; 2) the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; 3) whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; 4) whether the character and attitude of the defendant indicates that he or she is likely or unlikely to commit another violation; 5) whether the defendant's conduct was the result of circumstances unlikely to recur; 6) whether a license suspension would cause excessive hardship to the defendant and/or dependents; and 7) the need for personal deterrence. Any other relevant factors clearly identified by the court also may be considered. Comparisons to motor vehicle statutes that impose mandatory license suspensions also may be a useful guide in some cases. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors. The municipal court or Superior Court judge must articulate the reasons for imposing a period of license suspension. The above will enhance appellate review and be a further safeguard against arbitrariness of sentencing. (Pp. 22-24)

5. Having defined the meaning of "willful violation" and having set standards that will guide the discretion of judges imposing license suspensions under N.J.S.A. 39:5-31, the Court concludes that the statute is neither vague nor overbroad, nor does it give unbridled discretion to sentencing judges. Nonetheless, the Court reverses the decision of the Appellate Division, which affirmed the forty-five day suspension of Moran's driving privileges, because none of the parties or the respective courts had the benefit of today's ruling. (Pp. 24-25)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the municipal court for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE ALBIN'S opinion.