Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Saturday, April 30, 2011




In seeking to prove defendant's blood alcohol content in

this DWI prosecution, the State called an expert to testify

about the results of a laboratory test performed on defendant's

blood sample by another technician. In considering defendant's

argument that the failure to produce the other technician

violated the rights guaranteed him by the Confrontation Clause

of the Sixth Amendment, the court held that in such

circumstances the State must call a witness who has made an

independent determination as to the results offered. The court

concluded that a surrogate witness knowing nothing but what is

stated in another's report will not satisfy a defendant's

confrontation rights but nevertheless affirmed and found that

the State called an appropriate witness because the witness

supervised the testing process and signed the laboratory

certificate. 04-29-11

E.M.B. VS. R.F.B A-1155-09T1

E.M.B. VS. R.F.B


Plaintiff's stated reasons for seeking a final restraining

order against her 56 year old son were that he had stolen her

car keys, cell phone, bank book, money and some jewelry. In

addition, plaintiff testified that defendant had locked her out

of the house on one occasion and called her a "senile old

bitch." The trial court entered a final restraining order based

upon harassment. We reverse because theft is not one of the

enumerated predicate acts under N.J.S.A. 2C:25-19 and because

the evidence was insufficient to prove the thefts or other acts

were committed with the requisite purpose to harass.4-19-11




If a person incarcerated in another state is transferred to

New Jersey in accordance with the Extradition Clause of the

United States Constitution and the Uniform Criminal Extradition

Act to stand trial in this State, that person is not entitled to

a dismissal of the charges based on this State's alleged failure

to bring him to trial within the time required by the Interstate

Agreement on Detainers. Suppression is not required if evidence

was discovered by a search in another state that conformed with

the Fourth Amendment and the New Jersey Constitution, but

violated a statute of the other state that requires a warrant to

be executed only by a police officer of the jurisdiction where

the search is conducted. 04-15-11



A-3142-04T2 04-12-11

We hold that a third year law student enrolled in an

internship program pursuant to Rule 1:21-3(b) may present a case

to a grand jury in the course of an approved program.



A-2735-10T2 4-12-11

We reviewed an interlocutory order d enying defendant's

motion to suppress a handgun seized from his residence. The

primary question presented is whether the community caretaker

exception enunciated in Cady v. Dombrowski1 applied to a

warrantless search in the home. Defendant contended that the

motion judge erred by applying the exception, and urged us to

follow the rationale expressed in Ray v. Township of Warren,2

which held that the exception does not extend to searches of

homes. We declined to follow Ray and continued to apply New

Jersey precedent which permitted the exception in the home

context on a case-by-case, fact-sensitive basis. We reversed,

however, because no exigencies existed for the warrantless entry

into defendant's home and the State did not demonstrate that the

search was performed for the legitimate purpose of fulfilling a

community caretaker responsibility.



A-0859-07T4, A-0679-08T4 (CONSOLIDATED) 04-11-11

It was not error for the trial court to instruct the jury

on the law of attempt before instructing on the substantive

crime defendant was accused of attempting. However, in charging

the jury on attempt, the court must consider the three types of

attempt set forth in N.J.S.A. 2C:5-1a(1) to -1a(3), and must

only charge the jury as to the section(s) that apply in light of

the evidence presented. In this case, the judge charged the

1 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). 2 626 F.3d 170 (3d Cir. 2010). Ray was decided after the motion

judge denied defendant's suppression motion.

jury as to all three types of attempt when only the "substantial

step" instruction was appropriate, but the error did not warrant

reversal of defendant's conviction.




A private citizen is not a "prosecuting attorney" as

defined in Rule 3:23-9. Accordingly, if a municipal court

administrator or municipal court judge finds no probable cause

to issue a complaint at the request of a private citizen, that

citizen lacks standing to appeal the decision. 04-07-11

State v. R.T. (A-73-09)

State v. R.T. (A-73-09)

The members of the Court being equally divided on

whether the trial court committed reversible error by

instructing the jury on voluntary intoxication, the

Appellate Division’s judgment reversing and remanding

the case for a new trial is affirmed. 4-28-11

State of New Jersey v. William E. Rivera, a/k/a Juan Rivera (A-11-10)

State of New Jersey v. William E. Rivera, a/k/a Juan

Rivera (A-11-10) 4-26-11

A trial court’s sua sponte obligation to instruct the

jury in respect of any defense – whether affirmative

or tailored to negate an element of the offense – is

triggered only when the evidence clearly indicates or

clearly warrants such a charge, without the trial

court having to scour the record in detail to find

such support.

State v. Kelvin L. McLean a/k/a Kevin McLean (A-98-09)

State v. Kelvin L. McLean a/k/a Kevin McLean (A-98-09)

HELD: The opinion offered by the officer does not meet the requirements needed to qualify it as a lay opinion and permitting the officer to testify about his opinion invaded the fact-finding province of the jury.

1. The familiar standards governing expert opinion testimony are found in three separate rules. See N.J.R.E. 702, 703, 705. An expert is one who is qualified “by knowledge, skill, experience, training, or education” and who is therefore permitted to offer testimony in the form of an opinion that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” N.J.R.E. 702. Experts, unlike other witnesses, are permitted to rely on information that would otherwise be hearsay, and to present it to the jury, if others in their field of expertise reasonably and customarily do so. N.J.R.E. 703; see N.J.R.E. 705 (governing disclosure by experts and manner of questioning experts). The Court has held, in its seminal decision, that because expert opinions in narcotics prosecutions are governed by N.J.R.E. 702, such testimony is limited to “relevant subject[s] that [are] beyond the understanding of the average person of ordinary experience, education, and knowledge,” State v. Odom, supra, 116 N.J. at 71. Expert testimony is not admissible if the transactions at issue occurred in a straightforward manner. Moreover, experts may not, in the guise of offering opinions, usurp the jury’s function by, for example, opining about defendant’s guilt or innocence or about the credibility of parties or witnesses. Unless confined to their proper role, expert opinions may present the risk of undue prejudice to defendants. As for the use of hypothetical questions, although permissible, their use is not unbounded. The Court has imposed a number of safeguards, including that defendant’s name not be included in the question or answer and that the judge should instruct the jury that they are not bound by the expert’s opinion because the decision about guilt is theirs alone.

2. Lay opinion testimony can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its functions either by helping to explain the witness’s testimony or by shedding light on the determination of a disputed factual issue. Perception rests on the acquisition of knowledge through use of one’s sense of touch, taste, sight, smell or hearing. Although our appellate court, in explaining lay opinion testimony, has referred as well to the officer’s training and experience, the analysis of admissibility has been, as it must be, firmly rooted in the personal observations and perceptions of the lay witness in the traditional meaning of Rule 701. There are, however, limits that have traditionally been imposed on lay opinion testimony. For example, unlike expert opinions, lay opinion testimony is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.

3. The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. To the extent that it might have been offered as a lay opinion, it was impermissible both because it was an expression of a belief in defendant’s guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury. In the final analysis, the approach taken to this testimony by the trial court and the Appellate Division would effectively authorize an officer both to describe the facts about what he or she observed and to opine in ways that the Court has precluded previously. The Court declines to permit the lay opinion rule to be so utilized

State v. Michael Hayes (A-13-10)

State v. Michael Hayes (A-13-10)

Under the circumstances, a short adjournment should

have been granted to permit Hayes to obtain conflictfree

counsel to advance his application to withdraw

his guilty pleas. Because Hayes was required to

proceed without counsel, a fair and informed judgment

of whether he should have been allowed to withdraw his

pleas cannot be reached. The case is remanded to the

trial court for a properly counseled Slater hearing,

to be conducted under the “interests of justice” presentencing

burden of proof codified in Rule 3:9-3(e). 3-31-11

Thursday, April 28, 2011

State v. R.T. (A-73-09)

State v. R.T. (A-73-09)

The members of the Court being equally divided on whether the trial court committed reversible error by instructing the jury on voluntary intoxication, the Appellate Division’s judgment reversing and remanding the case for a new trial is affirmed.

Police should not destroy initial notes State v. W.B. (A-80-09) Decided April 27, 2011

Police should not destroy initial notes

State v. W.B. (A-80-09) Decided April 27, 2011

The issues in this appeal are: (1) the admissibility of defendant’s recorded statement; (2) the implications of a police officer destroying his or her notes after producing a final report; (3) whether expert testimony about the statistical credibility of the victim was admissible and, if not, whether its admission was reversible error; (4) whether testimony regarding the victim’s complaint more than one and one-half years after defendant’s sexual assault was admissible under the fresh complaint rule; (5) the propriety of the jury charge; and (6) whether the trial court abused its discretion in permitting the playback of defendant’s videotaped confession, which had not been admitted into evidence.

On January 1, 2005, after being sexually assaulted by her cousin, sixteen-year-old D.L. told J.C., her former boyfriend, about her cousin’s assault and that defendant, her stepfather, also sexually assaulted her when she was fourteen. DYFS and the Passaic County Prosecutor’s Office (PCPO) were contacted. After DYFS spoke with D.L., several detectives, including Detective Donna Gade, went to defendant’s home and waited for defendant. Upon his arrival, defendant was met by the detectives outside his home and agreed to accompany Detective Gade to the PCPO to discuss a family problem. D.L. and her mother also agreed to go to the PCPO. They arrived around 11:00 p.m. and were placed in separate rooms. Detective Gade first interviewed D.L., who said that defendant had sexually assaulted her on two separate occasions. D.L.’s statement was typed between 12:27 a.m. and 1:40 a.m. D.L. reviewed it, initialed the top and bottom of each page, and signed and swore to the truthfulness of her statement.

Detective Gade subsequently took defendant to an interview room for questioning. She first administered Miranda warnings to defendant using the PCPO’s Miranda rights and waiver form. Defendant initialed each right, and also signed the form’s “waiver of rights” portion. After 2:10 a.m, Detective Gade began to interview defendant. He initially denied D.L.’s allegations. After sitting for a while and thinking, however, defendant admitted that he had sex with D.L. and agreed to provide a written statement. At approximately 3:42 a.m., Detective Gade took defendant’s transcribed and videotaped statement, in which he acknowledged having sexual relations with D.L. twice. He also acknowledged that he voluntarily accompanied Detective Gade to the PCPO that night. Defendant reviewed and initialed each page of the statement and signed it at the end. His formal statement ended after 4:00 a.m., and he was arrested and charged at approximately 5:00 a.m.

At trial, D.L. recanted her earlier statement. D.L. stated that because defendant and her mother did not approve of her relationship with J.C., she made the false statement to interfere with their relationship. Defendant testified that prior to arriving home on the night he was taken to the PCPO, he drank several alcoholic beverages. Upon arriving home, he was grabbed by a police officer, patted down, and put into a police vehicle without an opportunity to refuse. He testified that he did not know why he was at the PCPO, was left waiting in a locked room for hours without food or drink, and was tired and intoxicated. According to defendant, he was then taken to another room where Detective Gade told him to sign a piece of paper, which he believed was the Miranda form. He could not, however, remember if he understood his rights. Defendant also testified that although he initially denied the allegations, after Detective Gade repeated the details over and over again, and stated that defendant had to tell her what she wanted to hear to go home, he told her “what she wanted to hear.” In addition, Dr. Richard Coco, a Child Sexual Abuse Accommodation Syndrome (CSAAS) expert, provided testimony, which included an assertion that only five to ten percent of children exhibiting CSAAS symptoms lie about sexual abuse. Furthermore, the court provided the model CSAAS jury charge, as amended by State v. P.H., 178 N.J. 378 (2004). Finally, defendant’s videotaped confession, which was never moved into evidence, was played back to the jury during its deliberations. Defendant was convicted and the Appellate Division affirmed. The Court granted defendant’s petition for certification. 201 N.J. 442 (2010).

HELD: (1) Defendant’s recorded statement was admissible; (2) if a law enforcement officer’s notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge; (3) Dr. Coco’s statistics-based expert testimony on victim credibility was beyond the permissible scope of CSAAS evidence, but it did not compel reversal; (4) testimony regarding D.L.’s complaint more than one and one-half years after defendant’s sexual assault was properly admitted as fresh complaint testimony; (5) defendant’s conviction is not reversible based on the jury charge provided; and (6) the playback of defendant’s videotaped confession did not constitute an abuse of discretion.

1. Defendant’s voluntary agreement to accompany Detective Gade to headquarters negated the need for probable cause to take him to the PCPO. It was appropriate to keep him separated while gathering information to safeguard D.L. In addition, defendant’s confession was admissible because the record supports the lower courts’ findings that defendant’s recorded statement was made voluntarily and not coerced, and that defendant knowingly, voluntarily and intelligently waived his Miranda rights.

2. After producing their final reports, law enforcement officers may not destroy contemporaneous notes of interviews and observations at the scene of a crime. Our criminal discovery rules provide for discovery of all statements of witnesses and police reports that are “in the possession, custody and control of the prosecutor.” Rule 3:13-3 encompasses the writings of any police officer under the prosecutor’s supervision as the chief law enforcement officer of the county. If a case is referred to the prosecutor following arrest by a police officer, or on a complaint by a police officer, local law enforcement is part of the prosecutor’s office for discovery purposes. Implementation of this retention and disclosure requirement is deferred for thirty days to allow prosecutors sufficient time to educate police officers. Thereafter, if an officer’s notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded to the facts of the case. Here, although Detective Gade destroyed her notes after writing her report, because defendant neither requested an adverse inference charge before the jury instructions were given, nor raised the issue before filing his motion for a new trial, he was not entitled to such an instruction.

3. CSAAS expert testimony is permissible to explain why many sexually abused children delay reporting their abuse, and why many children recant allegations of abuse and deny anything occurred. CSAAS evidence cannot be used as probative testimony of the existence of sexual abuse in a particular case. Dr. Coco’s expert testimony, that only five to ten percent of children exhibiting CSAAS symptoms lie about sexual abuse, creates an inference that D.L. told the truth in her original accusation, and is beyond the permissible, limited scope of CSAAS evidence. Accordingly, such expert testimony about the statistical credibility of a victim is inadmissible.

4. Convictions after a fair trial, based on strong evidence proving guilt beyond a reasonable doubt, should not be reversed because of a technical or evidentiary error that cannot have prejudiced the defendant or affected the end result. Based on the totality of the circumstances, Dr. Coco’s testimony did not unduly prejudice defendant or deprive him of a fair trial because: (1) Dr. Coco repeatedly clarified that the purpose of his testimony was to advise the jury about characteristics child abuse victims may exhibit; (2) it was clear that D.L. was almost an adult and, therefore, at the age of intellect and experience at which more alleged abuse victims may lie; (3) defense counsel, on cross-examination, addressed the issue of falsification by children at different age levels; (4) the State did not refer in summation to the portion of Dr. Coco’s testimony concerning the percentage of young women who lie; and (5) the trial judge provided a detailed and exhaustive jury charge concerning the proper use of CSAAS testimony. In addition, there was sufficient other evidence on which to sustain the convictions.

5. Testimony that D.L. complained to J.C. more than one and one-half years after defendant’s sexual assault was properly admitted under the fresh complaint rule. To qualify as a fresh complaint, the victim’s statements to someone he or she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary. D.L. met the spontaneity prong when she told J.C. about defendant’s past conduct almost immediately after her cousin’s sexual assault. The reasonable time requirement must be applied more flexibly in cases involving children in light of their special vulnerability to being coerced into silence, their reluctance to report a sexual assault, and their limited understanding of what was done to them. Here, the record, including that D.L. lived with defendant before her disclosure, and that she was afraid to


report the abuse, supports the conclusion that the interval between the assault and the complaint was reasonable.

6. The Court finds no basis on which to reverse the conviction because the model CSAAS jury charge, as amended by P.H., was given and the fresh complaint charge was not. P.H.’s suggested preface to the model CSAAS charge, however, did not cast the charge in stone. To the extent a defendant may believe the word “automatically” -- in the instruction that “[you may not automatically conclude that [complaining witness’s] testimony is untruthful based on [his or her] silence/delayed disclosure” -- unduly limits the jury’s right and obligation to evaluate credibility, the word “automatically” is to be substituted by the words “may or may not conclude that . . .,” or words of like effect.

7. The playback of defendant’s videotaped confession during jury deliberations did not constitute an abuse of discretion requiring reversal because: (1) the playback was in open court; (2) the videotape was played to the jury as part of the State’s case; (3) the trial itself was videotaped and there was no court reporter available to read back what was played to the jury; and (4) as evidenced by his summation, defendant relied on the statement.

The judgment of the Appellate Division is AFFIRMED.

Wednesday, April 27, 2011

Error by police dispatcher in invalid arrest warrant requires suppression of evidence under NJ Constitution. State v. Germaine A. Handy (A-108-09)

State v. Germaine A. Handy (A-108-09) Decided April 26, 2011

Long, J., writing for a majority of the Court.

The issue in this appeal is whether evidence uncovered during a search incident to an arrest should be suppressed because the arrest was based on incorrect information about the existence of a warrant that was provided by police dispatch to an officer in the field.

Police stopped Germaine A. Handy and others for riding their bicycles on the sidewalk in violation of a city ordinance. Because they did not have identification, Officer Drogo asked for their names and birthdates. Handy spelled out his name, gave his address in Millville, and provided his date of birth, March 18, 1974. When Officer Drogo radioed dispatch with this information, the dispatcher informed him that there was an outstanding warrant for Handy. Based on that information, Officer Drogo arrested him, and a search incident to the arrest uncovered cocaine. Officer Drogo later discovered that the ten-year-old warrant had been issued to Jermaine O. Handy of Los Angeles, California, and it listed the birth date as March 14, 1972. Officer Drogo left a voicemail with the court that had issued the warrant, but he received no reply. Handy was charged with drug offenses and released.

Handy moved to suppress the evidence on the ground that the police acted unreasonably in linking him to the warrant. The trial court denied the motion. The court found that the dispatcher was aware of the discrepancies and acted unreasonably, but that the more important factor was that Officer Drogo acted reasonably in light of the information given to him. Handy pled guilty and was sentenced. On appeal of the denial of his suppression motion, the Appellate Division reversed. State v. Handy, 412 N.J. Super. 492 (App. Div. 2010). The panel agreed that the dispatcher acted unreasonably in conveying the warrant information to Officer Drogo, despite substantial discrepancies, and that Officer Drogo acted reasonably. However, the panel concluded that the police were responsible, through the unreasonable actions of the dispatcher, for conveying inaccurate information to the arresting officer; and that the exclusionary rule must be applied beyond officers in the field and to police employees who act unreasonably in supplying critical, but inaccurate, information.

The Court granted the State’s petition for certification. 203 N.J. 95 (2010).

HELD: The dispatcher’s conduct -- advising an officer on the scene that there was an outstanding warrant when the warrant contained a differently spelled name and a different date of birth -- was objectively unreasonable and violated the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution. Evidence uncovered during the search incident to the arrest must be suppressed.

1. The legal issue here is whether the evidence uncovered during the search should be suppressed. Under the Fourth Amendment and the New Jersey Constitution, the test is whether the conduct was objectively reasonable in light of the facts known to police at the time of the search. That standard affords police necessary latitude to respond to criminality while deterring unreasonable conduct and protecting citizens from government overreaching.

2. Although Officer Drogo’s behavior was reasonable, the dispatcher’s actions were not. She knew the warrant was over ten years old and referenced Jermaine Handy, a California resident, not Germaine Handy, and bore a different date of birth. She could have reasonably reported the information on the warrant or said no warrant matched the information given by Officer Drogo. Instead, she reported that a warrant was issued for Handy, who was stopped for riding a bicycle on a sidewalk. Her constitutionally infirm conduct led to an arrest and ensuing search that could not have occurred based on an ordinance violation.

3. In Herring v. United States, 555 U.S. 135 (2009), the United States Supreme Court addressed application of theexclusionary rule to conduct by a person other than the officer executing a warrant. In that case, a clerk conveyed to the officer that there was a warrant, but it was later discovered that the warrant had been recalled five months earlier. Because of a bookkeeping error, that information had not been entered into the computer database. The Court affirmed the decision denying Herring’s motion to suppress because the error was isolated negligence attenuated from the arrest and the officer’s reliance on the database was not objectively unreasonable; thus, the deterrent effect of suppression was minimal and the principles underlying the exclusionary rule would not be advanced. In Arizona v. Evans, 514 U.S. 1 (1995), the Court declared that where the mistaken conduct that led to the arrest was attenuated (it was attributable to a judicial employee who had no stake in the outcome of criminal prosecutions), suppression would not deter police misconduct, and, thus application of the exclusionary rule would be unwarranted.

4. The State properly concedes that this is not an Evans case because the dispatcher was not attenuated from the arrest. This case also is not governed by Herring because, like Evans, its focus was on an attenuated clerical error in a database upon which police officials reasonably relied. That is not the situation here. First, the dispatcher was integral to effectuating the arrest. Second, presumably the database was accurate and there actually is a warrant for Jermaine O. Handy of Los Angeles. Rather, the dispatcher provided the wrong information when a reasonably prudent person would have advised the officer of the discrepancies. Third, suppressing the evidence here would have important deterrent value, underscore the need for training officers and dispatchers to focus on detail, and assure that our constitutional guarantees are given full effect. The dispatcher’s slipshod conduct, which clearly would not have been tolerated had the officer committed it, was objectively unreasonable and failed to satisfy the Fourth Amendment or the New Jersey Constitution.

5. Officer Drogo was confronted with persons who had ridden bicycles on a sidewalk. If ever there was a case in which a dispatcher had the luxury of time and care, this was it. The argument that an exclusionary rule analysis is limited to an arresting officer’s conduct is wrong. Otherwise, police operatives such as dispatchers would be free to act unreasonably, so long as the last person in the chain does not do so. Finally, the notion that a warrant with a wrong name and a wrong date of birth is close enough to justify the arrest of a citizen fails to satisfy the objective reasonableness standard. The dispatcher was unreasonable in failing to take further steps when she recognized that she did not have a match on the warrant check. Thus, suppression of the evidence is required.

The judgment of the Appellate Division reversing the order denying suppression is AFFIRMED.

Wednesday, April 20, 2011

Tuesday, April 12, 2011

exigent circumstances permit search





DOCKET NO. A-4086-09T2








Submitted February 15, 2011 - Decided

Before Judges Payne and Koblitz.

On appeal from an interlocutory order of

Superior Court of New Jersey, Law Division,

Union County, Indictment No. 09-07-00669.

Theodore J. Romankow, Union County

Prosecutor, attorney for appellant (Sara B.

Liebman, Assistant Prosecutor, of counsel

and on the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent Tarik Madison (Alan

I. Smith, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender,

attorney for respondent Andre Stanley

(Alison Perrone, Designated Counsel, on the



April 11, 2011

2 A-4086-09T2

We granted the State's motion for leave to appeal the trial

court's order of April 5, 2010, which granted defendants' motion

to suppress the evidence found as a result of an unlawful

search. On July 29, 2009, a Union County Grand Jury returned

Indictment No. 09-07-00669, charging defendant Andre Stanley

with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1)

(count one); and charging defendant Tarik Madison with thirddegree

distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and

N.J.S.A. 2C:35-5(b)(3) (count four); third-degree distribution

of heroin and/or cocaine, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A

2C:35-5(b)(3) (count five); second-degree distribution of heroin

within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1

(count six); second-degree distribution of heroin and/or cocaine

within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1

(count seven); and fourth-degree resisting arrest, N.J.S.A.

2C:29-2(a) (count eight). Co-defendant Geraude Stewart was

charged with third-degree possession of heroin and/or cocaine,

N.J.S.A. 2C:35-10(a)(1) (count two), and co-defendant Michael

Walsh was charged with third-degree possession of cocaine,

N.J.S.A. 2C:35-10a(1) (count three).1 After reviewing the record

1 Neither Stewart nor Walsh joined in the motion to suppress and

thus did not participate in this appeal.

3 A-4086-09T2

in light of the contentions advanced on appeal, we reverse the

trial court's order suppressing the evidence.

Plainfield Police Officer Adam Green, the only witness at

the pre-trial hearing, testified to the following facts. At

approximately 2:00 p.m. an April 2, 2009, Green and Sergeant

Kevin O’Brien began performing surveillance of the Elmwood

Gardens Public Housing Complex, which Green testified was “a

high crime, high narcotics area.” At approximately 3:40 p.m.,

Green and O’Brien saw co-defendant Stewart enter the complex and

stop in front of 528 West Second Street. O’Brien “immediately

recognized him and related to [Green] that he recognized that

male from an earlier narcotic[s] investigation” at the same


Defendant Madison approached Stewart. O’Brien “immediately

recognized” Madison as well. O’Brien told Green “that he had

received numerous complaints about Mr. Madison conducting

narcotic activity, distribution of narcotics, from . . . 544

West Second Street." O'Brien said he had dealt with Madison

"several times in the past regarding distribution of narcotics

and other related offenses." After Madison approached Stewart,

they engaged in a brief conversation before walking towards the

building located at 544 West Second Street and entering it.

Green was unable to see the men once they entered the building.

4 A-4086-09T2

A minute after the two men entered the building, Stewart exited

and walked over to a white Ford Explorer. A short time later,

Madison exited the building and entered the building located at

536 West Second Street. Green testified that based on his

experience people frequently engage in drug transactions in

common hallways. Based on his observations and the information

related to him by O’Brien, Green believed Madison had sold drugs

to Stewart.

When Green noticed that Stewart was about to enter the Ford

Explorer, he called for backup. Lieutenant Newman,2 accompanied

by additional police officers, stopped the Explorer after it

exited the housing complex. While approaching the Explorer,

Newman saw the driver, Walsh, put something in his mouth. Green

explained that it was not uncommon for people to ingest drugs to

avoid arrest.

Newman grabbed Walsh's mouth and recovered “one clear

plastic knot which contained . . . crack cocaine." Walsh was

arrested, and Stewart was then searched. Police found crack

cocaine and heroin in Stewart’s pocket. The heroin was stamped

“Bentley” on the packaging. Neither Stewart nor Walsh disclosed

the source of the drugs.

2 Lieutenant Newman's first name was not in the record.

5 A-4086-09T2

At 6:10 p.m. that same day, the officers saw Madison exit

the 544 West Second Street building. He walked east while

talking on his cell phone until he met defendant Andre Stanley.

None of the police officers had any previous information about

Stanley. Stanley and Madison engaged in a brief conversation

and walked to 544 West Second Street where they entered the

front of the building and came out a minute later. Green could

not see what the men did inside the building. Stanley then

walked west quickly, and Madison headed east slowly, while

looking back at Stanley. Green believed that he "had just

observed a second narcotics transaction."

Green directed that Stanley be stopped and searched. The

police kept Stanley in sight until they stopped him and found

heroin on his person with the marking “Bentley” on the


Madison was arrested approximately three months later

pursuant to an arrest warrant. In a written decision, the trial

court found that the evidence should be suppressed because "the

totality of the circumstances fail[ed] to support a finding of

probable cause." The decision was based primarily on State v.

Pineiro, 181 N.J. 13 (2004).

The State raised the following arguments on appeal,

6 A-4086-09T2




A. The Trial Court Incorrectly Found

That Defendant Madison had Standing To

Challenge the Seizure of Narcotics From

Walsh, Stewart, and Stanley; Further

The Court Erred in Failing to Examine

Madison's Expectation of Privacy in the

Drugs he Sold and in the Persons of

Those To Whom he Sold Those Drugs.

B. The Trial Court Did Not Use the

Totality of the Circumstances Test to

Determine Whether the Police had

Probable Cause, Ignored Facts

Establishing Probable Cause,

Incorrectly Concluded that the Police

Lacked Probable Cause to Arrest and

Search The Buyers, Including Defendant

Stanley; Further, the Court Ignored the

Fact that Defendant Madison was

arrested Pursuant to a Warrant.


The State concedes that Stanley has standing to challenge

the search of his person and subsequent seizure of the heroin on

his person. The State argues, however, that Madison does not

have standing to challenge the searches and seizure of drugs

from his three co-defendants as he was not searched personally

and abandoned his interest in the drugs when he sold them.

A defendant must have standing to challenge the validity of

a search and seizure of evidence. State v. Bruns, 172 N.J. 40,

43 (2002). In Bruns, the defendant sought to suppress evidence

7 A-4086-09T2

seized from a vehicle that was subject to a warrantless stop and

search for reasons unrelated to the robbery defendant allegedly

committed. Id. at 43. The defendant had no connection with the

vehicle, but the evidence seized from it implicated him in the

robbery. Id. at 44-45. The Court found that the defendant did

not have standing, stating:

In order to contest at trial the admission

of evidence obtained by a search or seizure,

a defendant must first demonstrate that he

has standing. Generally speaking, that

requires a court to inquire whether

defendant has interests that are substantial

enough to qualify him as a person aggrieved

by the allegedly unlawful search and


[Id. at 46.]

The Court noted that the standing requirement is broader

under the New Jersey Constitution, Article I, ¶ 7, than under

the Fourth Amendment of the United States Constitution. Ibid.

In New Jersey, standing depends upon "whether that defendant has

a proprietary, possessory or participatory interest in the place

searched or the items seized." Ibid. The Court explained that

"in most cases in which the police seize evidence implicating a

defendant in a crime that defendant will be able to establish an

interest in the property seized or place searched." Id. at 59.

The term "participatory"

connotes some involvement in the underlying

criminal conduct in which the seized

8 A-4086-09T2

evidence is used by the participants to

carry out the unlawful activity . . . . It

thus provides standing to a person who,

challenging the seizure and prosecutorial

use of incriminating evidence, had some

culpable role, whether as a principal,

conspirator, or accomplice in a criminal

activity that itself generated the evidence.

[State v. Mollica, 114 N.J. 329, 339-40


The Court in Bruns noted that a defendant's basis for

challenging the search will be diminished if "substantial time

passes between the crime and the seizure of the evidence and a

proprietary connection between defendant and the evidence no

longer exists." Bruns, supra, 172 N.J. at 59. The Court also

explained that "a showing that the search was not directed at

the defendant or at someone who is connected to the crime for

which he has been charged also will diminish a defendant's

interest in the property searched or seized.” Ibid. (citing

United States v. Smith, 621 F.2d 483 (2d Cir. 1980)).

The defendant in Bruns was found not to have standing


the passage of seven days between the crime

and the seizure of the evidence, defendant's

lack of any physical proximity to the

evidence when it was seized, as well as the

lack of any connection between defendant and

the events leading to the initial motor

vehicle stop or the arrest that eventually

resulted in the search of the vehicle

preclude[d] him from having standing to

challenge the vehicle search.

9 A-4086-09T2


The State is correct that Madison does not have a

possessory or proprietary interest in the drugs seized because

the drugs were not found in his constructive or actual

possession. Madison is charged, however, with selling the drugs

to his co-defendants immediately before the men were searched.

The State intends to use the drugs seized from the other

individuals as evidence of Madison's guilt. Under these

circumstances, as the trial court found, Madison has a

sufficient participatory interest to challenge the

constitutionality of the seizure of the drugs.


Both Madison and Stanley allege that the police searches

and subsequent arrests of Stanley, Walsh and Stewart violated

the United States and New Jersey Constitutions. 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; see also N.J.

Const. art. I, ¶ 7. Not all police-citizen encounters implicate

the Fourth Amendment. For instance, police may approach a

person in a public place and ask him if he is willing to answer

questions without any grounds for suspicion. State v.

Rodriguez, 172 N.J. 117, 125-26 (2002). However, when a person

10 A-4086-09T2

is temporarily detained by police and feels his right to move

has been restricted, it constitutes a "seizure" of his person

within the meaning of the Fourth Amendment. Id. at 126. Thus,

the Fourth Amendment requires that such detentions be

reasonable. Ibid.

"It is well-settled that the police may arrest only if they

have probable cause; 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) (internal quotation

marks and citations omitted). “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.

"Probable cause exists if at the time of the police action

there is a well-grounded suspicion that a crime has been or is

being committed." State v. Sullivan, 169 N.J. 204, 211 (2001).

The determination "requires nothing more than a practical,

common-sense decision whether, given all the circumstances . . .

there is a fair probability that contraband or evidence of a

crime will be found . . . ." State v. Johnson, 171 N.J. 192,

214 (2002) (internal quotation marks and citations omitted). In

11 A-4086-09T2

making this determination, consideration is given to any

reasonable inference that the officer draws from the facts in

light of his experience. Id. at 215 (citation omitted).

The trial court found that the police had reasonable

suspicion to stop Walsh, Stewart and Stanley based on Stewart

and Stanley's interactions with Madison, but that these

interactions did not give the police probable cause to arrest or

search the men. In finding that the police lacked probable

cause to search Walsh, Stewart and Stanley, the trial court

analogized the facts in this case to those in Pineiro, supra,

181 N.J. at 18, where the Court found that the police did not

have probable cause to search an individual known to the police

as a drug user after seeing him receive a pack of cigarettes

from the defendant who was a suspected drug dealer. The Court

found that "the passing of the cigarette pack just as easily

could have been nothing more than the transfer of a cigarette

pack between two adults." Id. at 29. In relying on the

reasoning in Pineiro, the trial court did not address the

additional factor for consideration present here, that the

police saw Walsh make a furtive gesture towards his mouth, which

afforded the police probable cause to retrieve the crack


12 A-4086-09T2

We agree with the trial court that the police had

reasonable suspicion to stop the Explorer. The police received

numerous complaints from members of the Elmwood Gardens

community that Madison was selling narcotics from an apartment

located at 544 West Second Street. "There is an assumption

grounded in common experience that [an ordinary citizen] is

motivated by factors that are consistent with law enforcement

goals." State v. Davis, 104 N.J. 490, 506 (1986). Therefore,

"an individual of this kind may be regarded as trustworthy and

information imparted by him to a policeman concerning a criminal

event would not especially entail further exploration or

verification of his personal credibility or reliability before

appropriate police action is taken." Ibid. (quoting State v.

Lakomy, 126 N.J. Super. 430, 435 (App. Div. 1974)). After

receiving the citizen complaints, the police observed Stewart

suspiciously interact with Madison at the suspected location and

then enter the Explorer. The police had sufficient grounds to

conduct an investigatory stop of the vehicle at that time.

We find that the police subsequently obtained probable

cause to search Walsh once they saw him move his hand to his

mouth after being pulled over because he was with Stewart, who

they suspected had just participated in a drug transaction.

13 A-4086-09T2

The courts have recognized that associating with known drug

offenders is a legitimate factor in assessing probable cause,

especially where corroborating circumstances are present. State

v. Williams, 117 N.J. Super. 372 (App. Div.), aff’d, 59 N.J. 535

(1971). In Williams, while investigating reports of illegal

drug activity in a known high-drug area, the police observed

Williams talking to a drug offender. Id. at 376. The police

pulled up behind Williams, exited their patrol car and

approached him. Ibid. After looking in the officers'

direction, Williams discarded a package on the floor of his car,

which was seized and found to contain illegal drugs. Ibid. We

found that the police had probable cause to believe that the

package contained evidence of a crime. Ibid. In this matter,

the police knew Stewart, the passenger in the vehicle Walsh was

driving, from prior drug investigations and also had just seen

Stewart interact suspiciously with another individual suspected

of distributing drugs.

The fact that Walsh, the driver, appeared to place

something in his mouth after being stopped by the police coupled

with the passenger's, Stewart, recent interaction with Madison

gave the police probable cause to search Walsh. See State v.

Sheffield, 62 N.J. 441, 447 (1973); State v. Harris, 384 N.J.

Super. 29, 48 (App. Div. 2006). The facts in Sheffield and

14 A-4086-09T2

Harris relate to those present here because both cases involved

individuals attempting to conceal drugs in their mouths after

being confronted by the police.

In Sheffield, supra, the police observed the defendant, "a

known narcotics' pusher and dealer," who the police had

previously arrested on a narcotics charge and who the officer

conducting surveillance had seen in the area approximately forty

times. 62 N.J. at 443-44. When the police approached the

defendant in an unmarked car, he did not respond and walked

quickly in the opposite direction of the police car. Id. at

444. The officer then exited the car and followed the defendant

while calling his name. As he did so, the officer saw the

defendant put his hand to his mouth. Ibid. Once the officer

caught up with the defendant, he pushed the officer away. Ibid.

The officer proceeded to attempt to arrest the defendant for

assault and a struggle ensued during which the defendant fell to

the ground and drugs fell out of his mouth. Ibid. The Court

found that after seeing the defendant "make a gesture to his

mouth," the officer had probable cause to "suspect criminal

activity on defendant's part." Id. at 445. The officer in

Sheffield also said that "based on his experience on the

narcotics squad [the] defendant's gesture indicated he was

15 A-4086-09T2

attempting to conceal narcotics evidence." Id. at 444. The

Court explained that:

A narcotics officer is especially qualified

to detect traffic in narcotic drugs. He

learns through experience how to spot an

addict or pusher, how an addict or pusher

acts and reacts, and where the areas of

narcotics activity are. When an officer

applies his expertise in a narcotics

situation, it should not be given grudging

recognition when assaying the existence of

cause to take police action.

[Id. at 445.]

In Harris, supra, while one police officer went inside to

investigate an unrelated crime in a bar, the police officer who

remained in the unmarked car saw two men walking down the

street. One man, the defendant, was counting money. 384 N.J.

Super. at 40. The men reversed direction after they saw the

uniformed police officer exit the bar. Ibid. The officers then

went to a nearby alleyway that one officer, based on his

experience in conducting narcotics investigations, knew was

often used for drug transactions. Ibid. The officers parked

outside of the alleyway, exited the car and entered the alleyway

from opposite sides to prevent the men from running away. Id.

at 41. The officers saw both men and "[a] torn up piece of a

cigar and tobacco, which [one officer] suspected to be a 'blunt'

- - a hollowed out cigar use for smoking marijuana," at their

feet. Ibid. One officer attempted to speak with the defendant,

16 A-4086-09T2

whom he recognized from previous arrests on narcotics charges,

but noticed that he was having difficulty speaking, "as if he

were concealing something in his mouth." Ibid. The officer

then proceeded to ask the defendant to spit out whatever was in

his mouth, and the defendant complied, spitting out a plastic

bag of marijuana. Ibid. Probable cause to inspect the object

in the defendant's mouth developed in large part because he

seemed to be hiding something in his mouth and was

"uncharacteristically friendly" to the police officers. Ibid.

We said "in light of all the facts and circumstances that gave

rise to reasonable suspicion, it was reasonable for the officers

to believe further that [the] defendant was concealing evidence

of illegal drug activity." Ibid.

The circumstances here are similar to those in Sheffield

and Harris because the police had reasonable suspicion to stop

the Explorer based on their observations in a high-crime area

known for drug activity. Probable cause to believe that Walsh

was concealing evidence of illegal drug activity developed after

he moved his hand to his mouth. The police then had a "wellgrounded

suspicion that a crime has been or [was] being

committed." State v. Nishina, 175 N.J. 502, 515 (2003).

Although the police did not recognize Walsh or see him interact

with Madison, they recognized the passenger, Stewart, from

17 A-4086-09T2

previous investigations, received tips from the community that

Madison was selling drugs and observed the two men conduct what

they believed to be a drug transaction. The police had

reasonable suspicion to stop the car after Stewart entered it,

and subsequently acquired probable cause after seeing Walsh move

his hand towards his mouth. Therefore, based on the officers'

knowledge and observations of Walsh's association with Stewart,

they had probable cause to search him when he motioned towards

his mouth after being stopped by the police. We must, however,

still consider whether exigent circumstances were present.

A warrantless search is justified by exigent circumstances

where "the search is supported by probable cause and is

necessary to prevent the disappearance of the suspect or of

evidence, and where the circumstances fail to permit the

searching officer sufficient time to obtain a warrant.” State

v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989).

However, "the destructible nature of drug evidence, in and of

itself, does not constitute an exigency sufficient to avoid the

warrant requirement." State v. De La Paz, 337 N.J. Super. 181,

198 (App. Div.), certif. denied, 168 N.J. 295 (2001).

The following factors are to be considered when determining

whether exigent circumstances are present:

(1) the degree of urgency involved and the

amount of time necessary to obtain a

18 A-4086-09T2

warrant; (2) reasonable belief that the

contraband is about to be removed; (3) the

possibility of danger to police officers

guarding the site of contraband while a

search warrant is sought; (4) information

indicating the possessors of the contraband

are aware that the police are on their

trail; (5) the ready destructibility of the

contraband and the knowledge that efforts to

dispose of narcotics and to escape are

characteristic behavior of persons engaged

in narcotics traffic; (6) the gravity of the

offense involved; (7) the possibility that

the suspect is armed; (8) the strength or

weakness of the facts establishing probable

cause[;] and (9) the time of entry.

[State v. Alvarez, 238 N.J. Super. 560, 568

(App. Div. 1990).]

Regardless of the disposability of the evidence, if a search is

undertaken solely for investigative purposes and without

probable cause, its results will be suppressed. See, e.g.,

State v. Baker, 112 N.J. Super. 351, 358 (App. Div. 1970).

We find that exigent circumstances were present justifying

the warrantless searches of Walsh and Stewart because Walsh was

concealing the drugs in his mouth and could have swallowed them,

and because exigent circumstances are generally present when an

officer has probable cause to believe that an individual

possesses drugs in the officer's presence. See Nishina, supra,

175 N.J. at 517; Guerrero, supra, 232 N.J. Super. at 512.

In Guerrero, supra, we found that there were exigent

circumstances justifying a warrantless search of the defendant

19 A-4086-09T2

because the police had probable cause to believe that the

defendant had just "engaged in a narcotics transaction and . . .

there was insufficient time in which to procure a warrant

because of the likelihood that evidence on the defendant's

person would be consumed, hidden or sold." 62 N.J. at 443-44.

The police in Guerrero saw the defendant exchange money for a

small object that they believed to be drugs, but they did not

recognize the defendant or the individual who sold the drugs

from any previous investigations nor did they receive any tips

that the defendant or the other individual were involved in drug


In support of finding exigent circumstances in Guerrero, we

discussed our decision in State v. Smith, 129 N.J. Super. 430

(App. Div.), certif. denied, 66 N.J. 327 (1974), where an

experienced police officer was conducting surveillance of an

alleged drug distribution location. The defendant, who the

officer recognized as having committed previous narcotics

offenses, exited a car parked in front of the building, entered

the building and returned to the car moments later. Id. at 432-

33. The police stopped the car, ordered defendant out of the

vehicle and searched him, recovering heroin in one of his shoes.

Id. at 33. We found that the exigent circumstances exception to

the warrant requirement applied because the officers had

20 A-4086-09T2

probable cause to believe that the defendant had just purchased

narcotics and thus was in possession of them at the time of the

stop. Id. at 435.

The Court in Nishina cited Guerrero with approval and

applied its exigency rationale to a search of an individual

after the officer had probable cause to believe the individual

possessed contraband in the officer's presence. Nishina, supra,

175 N.J. at 517. The rationale of Nishina and Guerrero is

applicable to Walsh, since in attempting to hide the drugs from

police, he could have swallowed them and destroyed the evidence.

Although the police did not witness a drug transaction

between Stewart and Madison because their interaction took place

inside a building, the police discovered crack cocaine on Walsh,

heightening their reasonable suspicion of Stewart to probable

cause to search him. The police reasonably linked the two men

together as sharing a joint purpose because Stewart was the

passenger in the Explorer driven by Walsh. In Smith, supra, the

police received an anonymous phone call and a tip from a

reliable informant that drugs were being dispensed from a

particular location. 129 N.J. Super. at 434. Although the

police did not witness any drug transaction, we found that the

"[d]efendant's known narcotics record; his recent presence in

areas being investigated for narcotics activity; his presence at

21 A-4086-09T2

[the specific address indicated by the two sources] for a period

just long enough to make a narcotics purchase and his furtive

glances after exiting under the circumstances" gave the police

probable cause to search him. Id. at 434-35. We noted that

although none of these factors alone would have provided the

police with probable cause, the combination of factors justified

the search of the defendant. Id. at 434. Here, the police

received anonymous complaints from members of the community that

Madison was selling drugs at 544 West Second Street and saw

Stewart, who they recognized from a prior drug investigation at

the same location, enter that building with Madison and leave

after approximately one minute. These factors coupled with the

discovery of drugs on Stewart's companion, Walsh, minutes later,

gave the police probable cause to search Stewart.

Under Nishina, once the police had probable cause to

believe that Stewart had drugs on his person in their presence,

exigent circumstances permitted an immediate search without a

warrant because "evidence could have been consumed, hidden or

sold by the time . . . a warrant was issued." Nishina, supra,

175 N.J. at 517 (quoting Guerrero, supra, 232 N.J. Super. at


Although the police did not know anything about Stanley

before observing him interact with Madison, the police had

22 A-4086-09T2

probable cause to believe that Stanley had just purchased drugs

from Madison before searching him. After observing Stewart's

interactions with Madison, lawfully seizing drugs from Stewart

and Walsh and then observing Stanley's interactions with Madison

only a few hours later, the police had probable cause to believe

that Stanley had purchased drugs from Madison. Both Stanley and

Stewart entered the same building with Madison and exited it

after a very short period of time. Additionally, after exiting

the building, Stanley proceeded to walk very quickly away from

the building in the opposite direction of Madison.

Not only did the police have probable cause, but they also

had exigent circumstances to search Stanley, given that he could

have discarded or destroyed the evidence if the police had

waited to secure a warrant.

We therefore reverse the trial court's order suppressing

the drugs seized from Walsh, Stewart and Stanley.