STATE VS. ALICE O'DONNELL A-1889-12T2

STATE   VS. ALICE O'DONNELL 

A-1889-12T2 

Defendant pleaded guilty to the murder of her six-year-old son. She received a thirty-year sentence with a thirty-year MPI. She alleges her attorney was ineffective by failing to diligently pursue a diminished capacity defense and failing to adequately consult with her before urging her to plead guilty. We reverse the trial court's denial of PCR and remand for an evidentiary hearing. 

We direct the court to separately apply the four-factor test governing plea withdrawal motions under State v. Slater, 198 N.J. 145 (2009), and the two-prong test governing PCR petitions under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We compare and contrast the two standards. Both apply to defendant's application for relief. Although the standards sometimes overlap, they do not always lead to the same results. We instruct the trial court not to conflate the two. We also conclude that the court mistakenly set too high a threshold for satisfying the "colorable claim of innocence" factor under Slater.  04/24/14 

N.B. VS. S.K. A-0898-12T4/A-0899-12T4(

N.B. VS. S.K.
          A-0898-12T4/A-0899-12T4(CONSOLIDATED)

In 2002, plaintiff obtained a domestic violence final restraining order (FRO) against her husband, but agreed in 2003 to its vacation when the parties settled their matrimonial disputes; they then agreed to replace their respective FROs with mutual restraints in the divorce action. In 2012, after years during which the matrimonial restraints proved ineffectual in preventing defendant from attempting to communicate with plaintiff, plaintiff filed a domestic violence action alleging harassment when defendant repeatedly called a telephone that the matrimonial restraints barred him from calling. The trial judge excluded plaintiff's evidence of defendant's prior failures to comply with the matrimonial restraints and granted an involuntary dismissal on the ground that a violation of a matrimonial order cannot constitute an act of domestic violence. The court reversed, holding that defendant's past violations of the matrimonial restraints were relevant in that they provided an understanding of why plaintiff would be alarmed or seriously annoyed by what otherwise seemed to be innocuous communications.
In the separate but related appeal, the court affirmed the denial of plaintiff's subsequent motion to vacate the 2003 order, which vacated the original FRO, solely because plaintiff failed to seek relief within a reasonable period of time. 03/24/14  

STATE OF NEW JERSEY VS. KEENAN OGLETREE, JR. A-2081-12T2

STATE OF NEW JERSEY VS. KEENAN OGLETREE, JR.
          A-2081-12T2

In this appeal, defendant argued he was wrongfully denied 246 days of gap-time credit, which represented the time from his incarceration for a violation of probation until his sentence in later matters. The court agreed and reversed, holding that even though, in the earlier matter, defendant was incarcerated as a condition of probation for 120 days in the county jail, that jail condition did not

constitute "imprisonment" within the meaning of the gap- time credit statute, N.J.S.A. 2C:44-5(b)(2). The court observed that application of a broader meaning of the word "imprisonment" in this setting would lead to the incongruous result that a probationary term conditioned on even a single day in the county jail would disqualify an award of gap-time credit when imprisonment was later imposed following a violation of probation, whereas a probationary term without such a condition would not. 03/20/14  

State v. Carlos Bolvito

State v. Carlos Bolvito (A-44-12; 071493)

          A sentencing court may impose the mandatory Sex Crime
          Victim Treatment Fund penalty in any amount between a
          nominal figure and the upper limit prescribed by
          N.J.S.A. 2C:14-10(a) for the degree of the offense at
          issue.  In setting the penalty, the sentencing court
          should (1) consider the nature of the offense and the
          defendant’s ability to pay the penalty during any
          custodial sentence imposed and after his or her
          release, and (2) provide a statement of reasons as to
          the amount of any penalty. 3-31-14   

State v. Edward Ronald Ates

State v. Edward Ronald Ates (A-52-12; 070926)

          New Jersey’s Wiretap Act is constitutional under both
          the federal and state constitutions. The Legislature’s
          focus on the “point of interception” is a rational
          approach because the inherent mobility of cell phones
          would make it impractical, if not impossible in some
          instances, for law enforcement to intercept cell phone
          conversations if agents could only rely on orders
          issued in the state where a call was placed or
          received. 3-18-14   In this appeal, the Court considers whether the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act or Act), N.J.S.A. 2A:156A-1 to -37, is unconstitutional because it allows law enforcement officers in New Jersey to intercept conversations between individuals located outside of New Jersey.

Defendant Edward Ronald Ates, who lived in Florida and had family in Florida and Louisiana, was arrested and charged with the murder of his former son-in-law in Ramsey, New Jersey. As part of the criminal investigation, a New Jersey wiretap judge authorized wiretaps on six telephone numbers assigned to and known to be used by defendant and his family members. The telephone numbers consisted of five cell phones and one landline phone. Law enforcement officers monitored all of the wiretaps from New Jersey. Prior to trial, defendant moved to suppress conversations that involved himself, a Florida resident, his wife, another Florida resident, his mother, a Louisiana resident, and his sister, who lived in both Florida and Louisiana. Defendant claimed that the wiretap orders were “extraterritorial” and that New Jersey officials should have asked the proper authorities in Florida and Louisiana to consent to the wiretaps. Defendant also asserted that the Wiretap Act should be declared unconstitutional because it permits New Jersey authorities to act outside their jurisdiction and wiretap individuals with no connection to New Jersey. The trial court denied the motion, concluding that the Act constitutionally permits intercepting and monitoring out-of-state communications in New Jersey. The jury found defendant guilty.

The Appellate Division affirmed defendant’s conviction. State v. Ates, 426 N.J. Super. 521 (App. Div. 2012). The panel rejected defendant’s argument about the Act’s “extraterritorial” reach and noted that the statute “requires a nexus with New Jersey by insisting that, at the very least, the listening post be located in New Jersey.” Id. at 533. The panel observed, “this does not ‘usurp [f]ederal authority’ because federal law permits the same thing.” Ibid. The panel also rejected defendant’s other arguments: that the trial court imposed an inadequate remedy for the State’s unlawful interception of an attorney-client conversation; that the prosecutor made improper remarks during summation about a defense medical expert; that it was prejudicial error to admit in evidence a reenactment of a drive from New Jersey to Louisiana; and that the cumulative effect of the above errors required reversal. Id. at 531, 534-38. The Court granted defendant’s petition for certification. 213N.J. 389 (2013).

HELD: New Jersey’s Wiretap Act is constitutional under both the federal and state constitutions. The Legislature’s focus on the “point of interception” is a rational approach because the inherent mobility of cell phones would make it impractical, if not impossible in some instances, for law enforcement to intercept cell phone conversations if agents could only rely on orders issued in the state where a call was placed or received.

1. The United States and New Jersey Constitutions’ protections against unreasonable searches and seizures extend to the interception of phone conversations. In 1967, the United States Supreme Court issued two landmark opinions that addressed electronic surveillance of phone conversations under the Fourth Amendment and outlined principles to safeguard individual privacy rights in that area. See Berger v. New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 347 (1967). Congress responded the following year by enacting Title III of the Omnibus Crime and Safe Streets Act, 18 U.S.C.A. §§ 2510–2520, which established minimum standards for federal and state law enforcement officials to follow when seeking to intercept wire, oral, and electronic communications. In 1968, the New Jersey Legislature enacted the Wiretap Act and modeled it after Title III.

2. The Wiretap Act empowers the State to apply to a judge for an order authorizing law enforcement officers, who are investigating particular crimes, to intercept wire, electronic, and oral communications. N.J.S.A. 2A:156A-8. Before judges can enter a wiretap order, they must find probable cause to believe (1) that a listed, serious offense under New Jersey law has been, is being, or will be committed; (2) that communications about the criminal activity in New Jersey may be obtained through the interception; and (3) that normal investigative procedures have failed, are unlikely to succeed, or are too dangerous. N.J.S.A. 2A:156A-10a-c. An “intercept” is “the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device.”N.J.S.A. 2A:156A-2c. A wiretap order “may be executed at any point of interception within the jurisdiction of an investigative or law enforcement officer executing the order.” N.J.S.A. 2A:156A-12h. A “point of interception” is the site where the “officer is located at the time the interception is made” -- commonly referred to as the “listening post.” N.J.S.A. 2A:156A-2v. The plain language of the Wiretap Act thus authorizes investigators to intercept out-of-state calls at a listening post in New Jersey.

3. Because the State can only prosecute crimes that occur within its territorial borders, the first two findings that a judge must make before issuing a wiretap order connect the interception of communications to activity in New Jersey. See N.J.S.A. 2A:156A-10a-b. In addition, the Act requires that the listening post be located within New Jersey. See N.J.S.A. 2A:156A-12h. Therefore, the Wiretap Act does not unconstitutionally permit the interception of communications with no connection to New Jersey.  

4. Because the Wiretap Act is closely modeled after Title III, the Court gives careful consideration to federal decisions interpreting the federal statute. Federal circuit courts have consistently upheld wiretaps based on the location of the listening post, and no circuit court has found Title III unconstitutional on that ground. For example, in United States v. Rodriguez, 968 F.2d 130 (2d Cir.), cert. denied, 506 U.S. 847 (1992), the Second Circuit found that because Title III defines interception as the “aural” acquisition of the contents of the call, and because “aural,” by definition, “‘pertain[s] to the ear or the sense of hearing,’” the place of interception could be where the police first monitored or listened to the communication. Id. at 136. (citation omitted). The court in Rodriguez also noted that allowing a court where the listening post is located to authorize wiretaps in multiple jurisdictions helps protect individual privacy rights by avoiding unnecessary or unnecessarily long interceptions. Id. (citations omitted). Other federal courts have followed Rodriguez and held that judges can authorize wiretaps when the listening post -- and thus the interception -- is within the court’s jurisdiction, even if the phone is located elsewhere. The majority of courts that have interpreted state wiretap laws also agree. For example, in Davis v. State, 43 A.3d 1044 (Md. 2012), Maryland’s highest court upheld a wiretap order allowing officials in Maryland to monitor a cell phone located in Virginia, finding that if the listening post is located within the wiretap court’s territorial jurisdiction, then “neither the physical location of the mobile phone at the time the call was placed” nor “the recipient of the call are material.” Id. at 1048. The Maryland court also noted that a different outcome would present “an enormous logistical and technological challenge to law enforcement” officials if an investigation involved a cell phone that crossed state lines. Id. at 1054. The Court agrees with the many federal and state courts that have allowed judges in the state where the listening post is located to authorize a wiretap.  

5. Drawing an analogy to the requirements for searching a home, defendant contends that law enforcement officers must seek a search warrant from a judge in the state where the phones are located. There are obvious differences between searching a fixed location, like a home, and intercepting a phone call on a mobile phone. If out-of-state intercepts could only be authorized by a judge in the jurisdiction where the phones are located, then the inherent mobility of the modern cell phone could defeat even the most responsible efforts to monitor it. In short, defendant’s reading of the Act would make it impractical to intercept cell phone conversations. Viewed in that light, the Act’s definition of “point of interception” -- the site where an officer is located when an interception is made, N.J.S.A. 2A:156A-2v -- makes rational sense. In addition, defendant’s privacy rights were not violated because a New Jersey judge, rather than judges in the states where the phones were located, reviewed his wiretap applications. Defendant’s rights would be protected if the applications were reviewed in New Jersey, Florida, or Louisiana because judges in each state must ensure that there is an adequate basis for issuing a wiretap order. At a minimum, the applications would have to meet the requirements of Title III. 

6. As to defendant’s several other challenges, the Court affirms substantially for the reasons stated in the Appellate Division’s opinion.Ates, 426 N.J. Super. at 534-38. 

State v. Angelina Nicole Carlucci

State v. Angelina Nicole Carlucci (A-85-11; 069183)

          The admission of evidence of defendant’s other crimes,
          wrongs or acts was contrary to N.J.R.E. 404(b), and
          such admission constituted harmful error. 3-13-14 The issue in this appeal is whether inculpatory statements by defendant of other crimes, wrongs or acts were admissible pursuant toN.J.R.E. 404(b).

Defendant was arrested and charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). Prior to trial, defendant challenged the admissibility of her statements to Patrolman Buss. At a pretrial Jackson-Denno hearing on the admissibility of defendant’s statements, Patrolman Buss testified that he showed the clear packet to defendant and asked “what is this,” to which she replied that she “did not know.” Patrolman Buss then read defendant her Miranda rights and defendant, who was not handcuffed or otherwise restrained, indicated that she was willing to speak with him. Patrolman Buss again asked defendant if she knew what the substance was and she replied that it was “crack,” and that she knew this because she “had been in trouble for it in the past.” In addition, defendant stated that “the night prior she had drank alcohol and taken a Vicodin,” and that the Vicodin was not legally prescribed.

The judge who conducted the Jackson-Denno hearing issued a written decision determining that defendant’s statements to Patrolman Buss would be admissible at trial. The judge found that Patrolman Buss’ initial inquiries to defendant regarding the clear packet did not require prior Miranda warnings because the inquiry was merely investigatory at that stage. The judge further found that Patrolman Buss read defendant her Miranda rights as soon as he “recognized that a sustained one-on-one questioning of [d]efendant in a back office was sufficiently coercive such that her continued detention rose to the level of a de facto arrest.” The judge also determined that defendant’s post-Miranda statements were admissible: “There is nothing in the record to indicate that [d]efendant’s waiver was not knowing, intelligent, and voluntary.”

A different judge presided at defendant’s trial. Before Patrolman Buss testified, defense counsel moved to suppress defendant’s statements regarding her prior crack use. The trial judge denied the motion on the basis that the objection was precluded by “the law of the case” doctrine based on the Jackson-Denno ruling and stated that an instruction limiting the use of this evidence would be given. At the trial, Patrolman Buss’ testimony differed from his pretrial Jackson-Denno hearing testimony. At trial, he testified that defendant admitted that the substance in the clear packet that fell from her shirt was crack, before he read her the Miranda warnings. Patrolman Buss’ testimony was otherwise similar to that provided at the Jackson-Denno hearing. Immediately after Patrolman Buss’ testimony, and again prior to jury deliberations, the trial judge instructed the jury that defendant’s statements could only be used as evidence of consciousness of guilt and not as proof that she had a propensity to commit crimes.

The jury found defendant guilty of third-degree possession of cocaine. The trial judge denied defendant’s motion for a new trial and imposed a one-year probationary term, subject to service of 270 days in the Warren County Jail as a special condition of probation, pursuant to N.J.S.A. 2C:43-2b(2).

Defendant appealed. The Appellate Division affirmed, agreeing with the Jackson-Denno judge’s determination that Patrolman Buss’ initial questioning was investigatory. The appellate panel found that defendant was not in custody, that protections guaranteed by Miranda were not violated, and that defendant’s post-Miranda statements were made knowingly, voluntarily, and intelligently. The panel rejected defendant’s argument that her statements regarding her prior use of crack and Vicodin should have been excluded pursuant to N.J.R.E. 403 and 404(b). The panel concluded that the trial judge did not abuse his discretion by admitting the statements to show consciousness of guilt, along with a limiting instruction to the jury on two separate occasions.

The Supreme Court granted defendant’s petition for certification. 209 N.J. 232 (2012).

HELD: The admission of evidence of defendant’s other crimes, wrongs or acts was contrary to N.J.R.E. 404(b), and such admission constituted harmful error.

1. The admissibility of evidence of other crimes, wrongs or acts pursuant to N.J.R.E. 404(b) is subject to the four-prong test established inState v. Cofield, 127 N.J. 328, 338 (1992). The evidence must be “relevant to a material issue” that is genuinely disputed, “similar in kind and reasonably close in time to the offense charged,” “clear and convincing,” and “[t]he probative value of the evidence must not be outweighed by its apparent prejudice.” In this matter, only the first, third, and fourth Cofield prongs are applicable to the analysis.

2. The first prong of Cofield requires that the evidence offered be “relevant to a material issue” that is genuinely disputed. Here the field test already had determined that the substance was cocaine. The identity of the substance as cocaine was not in dispute. Defendant’s knowledge that the contents of the baggie was crack cocaine was not an issue necessary for the jury to resolve. Thus, this first response by defendant does not satisfy prong one of the Cofield test. Defendant’s second response to the same question, that it appeared to be cocaine, was not admissible for any proper purpose under N.J.R.E. 404(b). It did not address a material issue in dispute and, further, defendant’s knowledge that the substance appeared to be cocaine did not provide evidence of consciousness of guilt of present possession. Moreover, defendant’s initial denial of knowledge of the baggie’s contents was not a crime, and her recognition of the substance in the baggie as cocaine did not evidence her commission of a crime. At a minimum, this evidence was suggestive of defendant’s propensity to use or possess drugs. That use was impermissible pursuant to N.J.R.E. 404(b). Similarly, defendant’s admissions, in response to the patrolman’s further questioning of prior use of crack cocaine, alcohol, and Vicodin are not relevant to the instant possession charge.  

3. The third prong of the Cofield test requires that “[t]he evidence of the other crime must be clear and convincing.” Here, there is no evidence, other than Patrolman Buss’ testimony about defendant’s statement, that she last used crack cocaine two days before her arrest. This prong is not met here. Finally, the important fourth prong requires that “[t]he probative value of the evidence must not be outweighed by its apparent prejudice.” Defendant’s prior admissions of drug use are not relevant to any material issue in dispute. Even if they were, the minimal relevance would be substantially outweighed by the unfair prejudice. The statements may lead jurors to the conclusion that defendant must have possessed crack cocaine on this occasion because she has a propensity for having and using illegal substances generally and cocaine specifically. The evidentiary use of defendant’s statements transgressed the prohibition against the use of other crime, wrongs, and bad acts evidence in N.J.R.E. 404(b). 

4. Defendant also raises several arguments about the voluntariness of incriminatory statements introduced into evidence at trial. In light of its holding that impermissible N.J.R.E. 404(b) evidence tainted this trial, the Court declines to address defendant’s factual and legal arguments about 1) the timing of her Miranda warnings; and 2) whether she was subjected to custodial interrogation throughout her questioning by Patrolman Buss. However, when this matter is retried and if the prosecutor seeks to elicit defendant’s response to Patrolman Buss’ simple “What is this?” question, defendant may renew her request for a new Jackson-Denno hearing. Moreover, the record before the Court does not permit a proper review of the custodial nature of the place and manner of interrogation. In conclusion, the Court holds that the admission of evidence of defendant’s other crimes, wrongs or acts was contrary to N.J.R.E. 404(b), and that such admission constituted harmful error. 

State in the Interest of K.O., a minor

State in the Interest of K.O., a minor (A-28-12;
           N.J.S.A. 2A:4A-44(d)(3) requires two separate previous
          predicate adjudications for the imposition of an
          extended-term sentence on a juvenile, including one
          that resulted in a juvenile or adult facility,
          exclusive of the adjudication for which the
          disposition court is sentencing the juvenile. 2-24-14 

The issue in this appeal is whether N.J.S.A. 2A:4A-44(d)(3) requires two previous adjudications or whether the adjudication for which a juvenile presently is being sentenced may itself count as the second predicate offense that qualifies the juvenile for an extended-term sentence.



1 was adjudged delinquent for committing an act that would have constituted second-degree robbery if committed by an adult. That adjudication subjected him to a maximum period of incarceration of three years under section 4A-44(d)(1)(d) of the Juvenile Justice Code (Code), N.J.S.A. 2A:4A-20 to -90. On July 27, 2009, at a disposition hearing, the State moved for the imposition of an extended term of incarceration under section 4A-44(d)(3) of the Code, which authorizes the Family Part court to impose an extended-term sentence on a juvenile adjudged delinquent of a qualifying present offense if the court “finds that the juvenile was adjudged delinquent on at least two separate occasions, for offenses which, if committed by an adult, would constitute a crime of the first or second degree, and was previously committed to an adult or juvenile facility.”



Kyle had been adjudicated delinquent on three occasions prior to the offense giving rise to this appeal. The first two adjudications involved minor offenses that did not meet section 4A-44(d)(3)’s predicate requirement of first- or second-degree offense adjudications. Also, neither of those adjudications resulted in his commitment to a juvenile detention facility. However, in March 2008 Kyle was adjudged delinquent of second-degree aggravated assault and was sentenced, consistent with a plea-agreement, to twenty-four months’ incarceration at the New Jersey Training School. Kyle was subsequently placed in the Juvenile Intensive Supervision Program (JISP). On March 3, 2009, Kyle’s participation in the program was terminated after he was deemed noncompliant. The Family Part court, however, dismissed the JISP violation and discharged the few months remaining on Kyle’s sentence, noting his approaching eighteenth birthday. Less than two months later, Kyle committed the act of delinquency resulting in his current sentence and this appeal.



In respect of the challenged sentence, the disposition court held, after taking Kyle’s prior adjudication on the second-degree aggravated assault charge and the present adjudication into consideration, that as a matter of law Kyle was extended-term eligible under N.J.S.A. 2A:4A-44(d)(3). The court sentenced Kyle to the maximum permissible term of three years at a juvenile detention facility pursuant to N.J.S.A. 2A:4A-44(d)(1) with an additional two-year extended term pursuant to section 4A-44(d)(3).



Kyle appealed his sentence and the Appellate Division affirmed. In re K.O., 424 N.J. Super. 555 (App. Div. 2012). The panel interpreted section 4A-44(d)(3) as permitting the imposition of an extended term whenever there are two separate occasions of a first- or second-degree offense, one of which involved a period of incarceration. Noting that section 4A-44(d)(3) does not refer to previous or prior offenses, the panel rejected the argument that section 4A-44(d)(3) requires two previous adjudications in order for a juvenile to be extended-term eligible for a present adjudication. The panel found that Kyle qualified for an extended term and that the trial court committed no abuse of discretion.



The Supreme Court granted Kyle’s petition for certification. 212 N.J. 460 (2012).



HELD: N.J.S.A. 2A:4A-44(d)(3) requires two separate previous predicate adjudications for the imposition of an extended-term sentence on a juvenile, including one that resulted in incarceration in a juvenile or adult facility, exclusive of the adjudication for which the disposition court is sentencing the juvenile.



1. Because statutory interpretation involves the examination of legal issues, it is considered a question of law. Accordingly, a de novo standard of review applies on appeal. Statutory language should be given its ordinary meaning and be construed in a common-sense manner. The Court’s overriding goal is to discern and effectuate the legislative intent underlying the statutory provision at issue. Where the language is unclear or ambiguous, or if the Legislature’s intention is otherwise uncertain, resort may be had to extrinsic aids to “assist [the Court] in [its] understanding of the Legislature’s will.” Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008).  



2. Under N.J.S.A. 2A:4A-44(d)(3), an extended term may be imposed “if [the court] finds that the juvenile was adjudged delinquent on at least two separate occasions, for offenses which, if committed by an adult, would constitute a crime of the first or second degree, and was previously committed to an adult or juvenile facility.” In this part of the statute, the Legislature has moved to the past tense, and not just for the past adjudication but also for the additional requirement that at least one such adjudication resulted in commitment to a juvenile or adult facility. The words refer to someone who “was adjudicated” and “was previously committed” on at least one such occasion to a facility. Both conditions clearly are from the person’s past and do not naturally suggest the inclusion of the present adjudication before the disposition court. The Court is unpersuaded that the failure to include the word “previously” twice when identifying the two required findings compels a plain language reading that the present adjudication may count as one of two separate offenses. The language of section 4A-44(d)(3) points to a natural reading that does not favor the State’s position or the extended-term sentence imposed on Kyle. To the extent one could argue that there is some ambiguity in the text of the section, the Court may resort to legislative history. Here, legislative history is silent on the specific issue before the Court. Further, to the extent that section 4A-44(d)(3) is not a model of perfect clarity, because it is a juvenile justice statute involving among the most severe sanctions that can be imposed on a juvenile, principles of lenity deserve consideration. To the extent that reasonable people can differ on whether the Legislature indeed intended to allow for an extended-term sentence for individuals like Kyle, who have only one previous separate predicate offense, not including the offense for which they are being sentenced, the Court concludes that the more lenient construction of the statute should pertain. N.J.S.A. 2A:4A-44(d)(3) requires two separate previous predicate adjudications, including one that resulted in incarceration in a juvenile or adult facility, exclusive of the adjudication for which the disposition court is sentencing the juvenile. The imposition of an extended term for Kyle transgresses that interpretation of the statute. The Court therefore reverses the extended-term sentence imposed. 



The judgment of the Appellate Division is REVERSED.

Relaxation of Transcript Requirement for Telephonic Search Warrants in DWI Cases

Relaxation of Transcript Requirement for Telephonic Search Warrants in DWI Cases

 SUPREME COURT OF NEW JERSEY

It is ORDERED, pursuant to N.J. Const., Art. VI, sec. 2, par. 3, that effective immediately the provisions of Rules 3:5-3(b) and 3:5-5(b) of the Rules Governing the Courts of the State of New Jersey that require that a transcript be made, that the judge certify the transcript, or that the affiant sign the transcript in connection with the issuance of search warrants by telephone, radio or other means of electronic communication for nonconsensual blood testing in driving-while-intoxicated cases are hereby relaxed so as not to be mandatory.

This will supplement the Order dated October 8, 2013 and shall continue in effect until further Order of the Court.

For the Court,

Stuart Rabner

Chief Justice

Dated: March 4, 2014

Read more: http://www.njlawjournal.com/id=1202646937415/Relaxation-of-Transcript-Requirement-for-Telephonic--Search-Warrants-in-DWI-Cases#ixzz2xmkMGv1u

Municipal court judges are not permitted to deprive defendants of right to counsel and prosecute defendants In the Matter of Louis M.J. DiLeo

Municipal court judges are not permitted to deprive defendants of right to counsel and prosecute defendants

In the Matter of Louis M.J. DiLeo, A Former Judge of the Municipal Court __ NJ __ (D-66-12; 1-27-14

The undisputed facts clearly and convincingly demonstrate that former Judge Louis M.J. DiLeo committed egregious legal errors in conducting the proceedings involving Anthony Kirkland and Wendell Kirkland. Judge DiLeo’s conduct violated Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. Respondent is reprimanded.

1. Every judge is duty bound to abide by and enforce the standards in the Code of Judicial Conduct. There are two determinations to be made in connection with the imposition of judicial discipline: (1) has a violation of the Code been proven by clear and convincing evidence, and (2) does that violation amount to unethical behavior warranting discipline. Generally, discipline is warranted “ ‘when conduct is marked with moral turpitude and thus reveals a shortage in integrity and character.’ ” Id. at 102. The Court also has acknowledged that a single violation of the Code that was “willful” or “typical of the judge’s work” may constitute judicial misconduct. (pp. 19-21)

2. Legal error has provided the foundational basis in this state for charging judges with violations of Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. A case-by-case approach has been used when analyzing charges of legal error to discern judicial misconduct under these canons. Where willful abuse of judicial power or inability to follow the law has been found, demonstrating judicial misconduct in the extreme, the Court has not hesitated to impose the harshest of sanctions and has removed a sitting jurist on the basis of incompetence and unfitness for judicial office. The overriding concern is the capacity of judicial behavior, objectively viewed, to undermine public confidence in the integrity and impartiality of the judicial process.

3. The appropriate standard – most consistent with Rule 2:15-8(a), the Code, and the Court’s general approach to judicial discipline – is the objective “reasonably prudent and competent judge” standard of Benoit with a “plus,” as a majority of jurisdictions require. To be subject to judicial discipline under the Code, there must be clear and convincing proof of objective legal error under the test described in Benoit, that the error must be “made contrary to clear and determined law about which there is no confusion or question as to its interpretation,” and that the error must be “egregious, made in bad faith, or made as part of a pattern or practice of legal error.” This standard protects judicial independence and preserves public confidence in the judiciary.

4. The undisputed facts clearly and convincingly demonstrate that Judge DiLeo committed egregious legal errors in his conduct of the proceedings involving the Kirkland defendants. Respondent’s manner of conducting this trial deprived the defendants of their fundamental due process rights and eliminated all indicia of impartiality by the judge -- and fact-finder -- in this bench trial. The egregiousness of these errors had the clear capacity to undermine public confidence in the dignity, integrity, and impartiality of the judicial system of this state. Judge DiLeo violated Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. He committed legal errors of the degree and kind that call into question judicial competence and cast a pall over the judiciary as a whole, and that constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute. R. 2:15-8.

However, our case law clearly requires a searching inquiry by the court before the right to counsel can be knowingly and voluntarily relinquished. See State v. DuBois, 189 N.J. 454, 468 (2007). As was noted by the Law Division when reviewing these proceedings, “[t]he fact that [the defendants] tried to secure private counsel . . . does not amount to a knowing, voluntary waiver of their right to have a lawyer represent them in a trial that resulted in county jail sentences for each defendant.”

Objectively viewed, Judge DiLeo egregiously mishandled the routine and regular task of appointing public defenders to represent indigent defendants. His conduct forced the defendants to go to trial pro se, which, as the Law Division noted, placed the defendants at “an obvious disadvantage.” “The importance of counsel in an accusatorial system such as ours is well recognized.” Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) (noting also that “[if the matter has any complexities the untrained defendant is in no position to defend himself and, even where there are no complexities, his lack of legal representation may place him at a disadvantage”).

The Law Division catalogued well the disadvantages that the deprivation of the right to counsel visited on defendants. The court’s description bears repeating: These two pro se defendants (1) “did not know enough to object to the hearsay testimony offered by the arresting officer” regarding the on-scene identifications made by the victims who were brought to the location where the defendants were arrested; (2) “were not in a position to explore the viability of a motion to suppress evidence of a warrantless search or to suppress the identifications made at the arrest location”; (3) “did not know to make a motion to dismiss the marijuana charge because a lab report was never even mentioned much less entered into evidence [and because] the officer [never] testified] that he had training and/or experience in the identification of narcotics”; (4) “did not know how to try to secure the testimony of Jesus Gonzalez”; and (5) “did not know how to investigate Anthony’s claim that Gonzalez told the arresting officer that the marijuana was his.” Those disadvantages were serious as was the magnitude of their consequences. As we have made abundantly plain as a basic precept of municipal court practice,

as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.

[Rodriguez, supra, 58 N.J. at 295.]

Moreover, it also is abundantly clear that Judge DiLeo’s manner of conducting this trial deprived the defendants of their fundamental due process rights. The judge himself took on the role of prosecutor in this matter by pointedly questioning witnesses and, ultimately, using evidence that he secured through his cross-examination of the defendants to convict them. His conduct eliminated all indicia of impartiality by the judge -- and fact-finder -- in this bench trial. See Ridgewood v. Sreel Inv. Corp., 28 N.J. 121, 132 (1958) (stating that “[t]here is a point at which the judge may cross that fine line that separates advocacy from impartiality” and noting that questioning of a witness that crosses this line may cause “substantial prejudice to the rights of one of the litigants”); see also State v. Taffaro, 195 N.J. 442, 450-51 (2008) (cautioning trial courts to use “great restraint in questioning witnesses,” particularly in jury trials, while noting that N.J.R.E. 614 and case law allow judges to question witnesses in order “to clarify their testimony” or “to help elicit facts” “when a witness is in severe distress”). Moreover, compounding his injudicious actions in this matter, Judge DiLeo allowed a non-attorney -- the arresting officer -– to participate as the State’s sole representative in the trial. See R. 7:8-7(b) (authorizing municipal prosecutor, municipal attorney, Attorney General, county prosecutor, county counsel, or, in limited instances, a private attorney, to represent State in municipal court prosecutions); State v. Hishmeh, 266 N.J. Super. 162, 166 (App. Div. 1993) (disallowing police officer’s questioning of witness in absence of municipal prosecutor based on prior version of Rule 7:8-7(b)); see also R. 1:21-1(a) (prohibiting non-attorneys from practice of law in this state).

So, in effect, the defendants had the judge and the testifying police officer who had arrested them as their adversaries in their trial. These errors were “contrary to clear and determined law about which there is no confusion or question.” Boothe, supra, 110 So. 3d at 1019. That the defendants were pro se facilitated this miscarriage of justice, for we expect that no attorney would have stood silent in the face of such flagrant and obvious error in the basic delivery of justice in a courtroom in New Jersey.

In sum, the conscious decisions of Judge DiLeo resulted in a perversion of the judicial process. This record is replete with legal error involving fundamental rights and basic court procedures that any competent jurist would recognize to be wrong. It cannot be defended or minimized. We specifically reject, as the Committee did, the judge’s “reliance on a heavy court docket as justification for his absolute disregard of appropriate procedures and the fundamental rights of defendants, especially when, as here, the defendants faced a consequence of magnitude.” A court’s concern about judicial “backlog” never trumps protection of a defendant’s constitutional rights.

Judge DiLeo conducted this trial on his own terms. He denied the defendants’ request for counsel, forced them to go to trial pro se after refusing their request for a public defender, prosecuted the case with the help of the arresting police officer, personally cross-examined the defendants, and found the defendants guilty based on testimony that he himself had elicited during his cross-examination. Furthermore, at the conclusion of those proceedings, Judge DiLeo sent these two pro se defendants to jail where they remained for 124 days for non-violent disorderly persons offenses. Not only the defendants but also the judicial system were victims. The judge violated basic principles and procedures of our judicial system that people have a right to expect a municipal court to follow when prosecuting a citizen for a disorderly persons offense.

The legal errors that took place in the municipal court proceedings conducted by Judge DiLeo were egregious. The egregiousness of these errors -- indeed, the judicial misconduct that occurred here -- had the clear capacity to undermine public confidence in the dignity, integrity, and impartiality of the judicial system of this state. Judge DiLeo violated the Code of Judicial Conduct, specifically Canons 1, 2A, and 3A(1). He committed legal errors of the degree and kind that call into question judicial competence and cast a pall over the judiciary as a whole, and that constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute. R. 2:15-8. We accept the Committee’s weighing of aggravating and mitigating factors in this matter and conclude that a reprimand is the proper quantum of punishment.

Accordingly, for all the reasons expressed herein, we direct that Judge DiLeo be publicly reprimanded for his egregious legal error committed when presiding over the trial of the Kirkland brothers for disorderly persons offenses.

Police can’t search just because person is in no loitering area.

Police can’t search just because person is in no loitering area.

    If no probable cause to arrest, search of person is improper State v. Gibson 214 NJ 564 (2014)

Supreme Court of New Jersey

  January 7th, 2014

Docket Number: A-27-12

 State v. David M. Gibson (A-27-12) (070910) 

       Argued October 8, 2013 -- Decided January 7, 2014  ALBIN, J., writing for a unanimous Court.          

       In this appeal, the Court considers whether there was probable cause to arrest defendant for defiant trespass. Without probable cause to arrest, the warrantless search of defendant at the stationhouse cannot stand.          

       At about 3:20 a.m. on November 24, 2007, Officer Wayne Comegno observed, momentarily, defendant David Gibson leaning against an upraised porch on the Omega Community Center’s private property. In a window looking out onto the building’s porch, a posted sign read, “no loitering.” According to Officer Comegno, the Community Center is located in a high-crime area and its president had requested that the police make checks due to incidents of criminal mischief. As the patrol car approached, Gibson moved on, walking a city block before being stopped and questioned by Officer Comegno.

       The officer asked Gibson for identification, where he was coming from, and whether he had permission to be on the Community Center’s property. Gibson gave his name and explained that he was coming from his child’s mother’s home, which is located two blocks north of the Community Center, and that he was waiting for a ride. Officer Comegno testified that Gibson appeared “very excited” and “somewhat evasive,” and that “he was looking around as though he was attempting to run.” The officer did not, however, elaborate on how Gibson was “evasive.” Based on his observations and interaction with Gibson, Officer Comegno concluded that Gibson had the intent to commit a defiant trespass, a petty disorderly persons offense, and arrested him.

       A subsequent search of Gibson at the police station uncovered thirteen bags containing crack cocaine. Gibson was charged with various drug crimes and subsequently moved to suppress the drug evidence, claiming that Officer Comegno did not have probable cause to make the arrest.           

       After a suppression hearing at which only Officer Comegno testified, the trial court found that the officer had probable cause to make an arrest for defiant trespass and therefore was authorized to conduct a search incident to an arrest. The Appellate Division affirmed the denial of the motion to suppress. State v. Gibson,

425 N.J. Super. 523 (App. Div. 2012). The panel stated that Officer Comegno’s encounter with Gibson began as a field inquiry, and then evolved into an investigative stop given the officer’s “reasonable suspicion of criminal activity” based on “the lateness of the hour, [Gibson’s] immediate departure from the Omega property upon seeing the officer, and [Gibson’s] excited and evasive demeanor when questioned.”

According to the appellate panel, the reasonable suspicion ripened into probable cause to arrest for defiant trespass “when [Gibson] failed to assert that he was on the Omega property with permission.” Even though the property owner posted a “no loitering” sign instead of a “no trespassing” sign, the panel maintained that there was probable cause to arrest for defiant trespass because the owner’s intent to keep others off the property was reasonably conveyed. The Court granted Gibson’s petition for certification.

212 N.J. 460 (2012). 

HELD: There was insufficient evidence in the record to support a finding that Officer Comegno had probable cause to arrest Gibson for defiant trespass; therefore, the subsequent search at the stationhouse was unconstitutional and the drug evidence seized during the search must be suppressed.

  1. Under N.J.S.A. 2C:18-3(b), a person commits the petty disorderly persons offense of defiant trespass “if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given . . . in a manner . . . reasonably likely to come to the attention of intruders . . . .” This case deals only with the “enters” portion of the statute, which has no temporal requirement for a completed trespass. Provided sufficient notice is given against trespass, even a brief willful entry onto another’s property may constitute a violation of N.J.S.A. 2C:18-3(b). The relevant inquiry here is whether Gibson was given “notice against trespass” in a manner “reasonably likely to come to [his] attention” and in a form so that he knew that he was not “licensed or privileged” to set even a foot on Omega’s property or to lean against its porch. The answer depends on whether the                                                                1 “no loitering” sign gave sufficient notice to make a reasonable person aware that even a slight and brief incursion on the property was a prosecutable offense.

2. “No loitering” does not convey the same meaning as “no trespassing.” As commonly understood and defined, “loitering” means remaining or lingering at a particular location for some indefinite period of time for no apparent purpose. On the other hand, trespass--particularly as used in the defiant trespass statute--prohibits the mere entering in a place when one is not licensed or privileged to do so. Unlike loitering, the “enters” portion of the trespass statute has no temporal element. Based on these commonly accepted definitions, it is fair to say that the “no loitering” sign in the porch window of the Omega Community Center communicated that a person should not be idly remaining or loafing on its property.

3. The constitutionality of the arrest in this case, and the legitimacy of the subsequent stationhouse search, depends on whether there was probable cause to believe that Gibson was a defiant trespasser. Probable cause is a well- grounded suspicion that a crime has been or is being committed. In determining whether probable cause exists, a court must look to the totality of the circumstances, and view those circumstances from the standpoint of an objectively reasonable police officer. In addition, the State bears the burden of proving by a preponderance of the evidence that the officer had probable cause to make the arrest. Although the trial court’s credibility assessments are entitled to deference, the Court is not obliged to defer to the ultimate finding of probable cause when the facts and inferences do not support that conclusion.

 4. According to the record, Gibson was seen leaning on the porch for no more than a few moments before he began walking. As soon as the officer saw Gibson, Gibson moved on, but did not take flight or dart between buildings. Although Officer Comegno claimed that Gibson was “evasive” and looked as though he might “run,” he gave no factual support for those subjective feelings. In addition, although the officer cited, as one basis for making the arrest, Gibson’s failure to give “lawful reasons” for leaning on the porch, Gibson explained why he was on the street at that hour. The notice on the Omega property did not suggest that leaning on the porch for a very brief period of time would subject Gibson to a defiant trespass prosecution. Gibson was instead warned against loitering, which has a distinctly different meaning than trespass. Momentarily leaning against a building, or an upraised porch, on a city block, would not be considered loitering to an objectively reasonable citizen. If Gibson was not loitering, then Officer Comegno could not have formed a well-grounded suspicion that Gibson was defiantly trespassing. Therefore, the record does not support that Officer Comegno had probable cause to arrest Gibson for defiant trespass. The police station search cannot stand because it was incident to an unconstitutional seizure.

 The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for proceedings consistent with this opinion.       CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’s opinion.                                                                2                                       SUPREME COURT OF NEW JERSEY                                         A-27 September Term 2012                                                  070910  STATE OF NEW JERSEY,      Plaintiff-Respondent,           v.  DAVID M. GIBSON      Defendant-Appellant.            Argued October 8, 2013 -- Decided January 7, 2014.         

 On certification to the Superior Court,          Appellate Division, whose opinion is          reported at

425 N.J. Super. 523

 (2012).           Alyssa A. Aiello, Assistant Deputy Public          Defender, argued the cause for appellant          (Joseph E. Krakora, Public Defender,          attorney).           Steven A. Yomtov, Deputy Attorney General,          argued the cause for respondent (John J.          Hoffman, Acting Attorney General, attorney).    

  JUSTICE ALBIN delivered the opinion of the Court.      The right to walk freely on the streets of a city without  fear of arbitrary arrest is one of the guarantees protected by  the Fourth Amendment of the United States Constitution and  Article I, Paragraph 7 of the New Jersey Constitution.   A person  cannot be arrested unless there is probable cause to believe  that he has committed or is committing an offense.   An arrest  without probable cause is an unreasonable seizure in violation  of both the Federal and State Constitutions.      In the early morning hours of November 24, 2007, a police  officer on vehicular patrol observed, momentarily, defendant  David Gibson leaning against a building’s upraised porch on a  street corner in the City of Burlington.   In a window looking  out onto the building’s porch, a posted sign read, “no  loitering.”   Gibson moved on, walking a whole city block before  he was stopped and questioned by the officer.   According to the  officer, the ground on which Gibson stood as he leaned against  the porch was private property.   On that basis, in addition to  Gibson’s nervous demeanor after the stop, the officer concluded  that Gibson had the intent to commit a defiant trespass, a petty  disorderly persons offense, and arrested him.      Gibson moved to suppress drug evidence discovered during a  search at the stationhouse because, as he claims, the officer  did not have probable cause to make the arrest.   After a hearing  at which the arresting officer testified, the trial court denied  the suppression motion, and the Appellate Division affirmed.      Even given our deferential standard of review, the court cannot  hold that there is sufficient credible evidence in the record to  support the trial court’s finding that the officer had probable  cause to believe that Gibson was a defiant trespasser.   Because  the court conclude that the trial court’s finding of probable cause was clearly mistaken, the court must reverse the Appellate Division and  remand for entry of an order suppressing the evidence.                                    I.      Defendant was charged in a Burlington County indictment  with second-degree possession of a controlled dangerous  substance (CDS), namely cocaine, with intent to distribute  within 500 feet of certain public property, N.J.S.A. 2C:35-7.1;  third-degree possession of CDS with intent to distribute within  1,000 feet of school property, N.J.S.A. 2C:35-7; third-degree  possession of CDS with intent to distribute, N.J.S.A. 2C:35-  5(a)(1) and -5(b)(3); and third-degree possession of CDS,  N.J.S.A. 2C:35-10(a)(1).   Gibson moved to suppress CDS evidence  discovered on him after his arrest for defiant trespass.    He  claimed that his arrest was an unconstitutional seizure and  therefore the following search invalid, requiring suppression of  the evidence under the exclusionary rule.      At the suppression hearing in Superior Court, Burlington  County, only one witness testified, Officer Wayne Comegno of the  Burlington City Police Department.   The factual record consists  entirely of the testimony of Officer Comegno.                                  A.      At about 3:20 a.m. on November 24, 2007, Officer Comegno, a  four-year veteran, was patrolling in a squad car in the New Yorkshire area -- a historic section of the city also known to  him for its history of violent crimes and drug activity.     The  president of the Omega Community Center had asked the police to  check the property “because of incidents of criminal mischief.”  The Community Center is a three-story building that “sits on the  corner of York and Jones Avenue.”    On the York Street side, the  building has an upraised porch -- two feet off ground level --  with two windows facing off the porch.   In the upper half of one  of the windows was a “no loitering” sign.      As Officer Comegno drove south on York Street, he noticed  David Gibson “leaning against the porch of the Omega Community  Center.”   Officer Comegno concluded that the ground on which  Gibson was standing, as he leaned against the porch, was the  private property of the Community Center.    The record does not  reveal how many feet or inches Gibson stood off the sidewalk or  street onto Omega’s property by Officer Comegno’s reckoning.  According to the officer, the area was illuminated and the “no  loitering” sign, which he could see from his car, was  approximately two feet from where Gibson was standing.      As the patrol car approached him, Gibson began walking  south on York Street.   This was apparently just moments after  Officer Comegno first caught sight of him.    As Gibson crossed  over Jones Avenue and headed towards Green Street, Officer  Comegno did not pull his patrol car over and attempt to stop him.    Instead, the officer drove around the block.   After Gibson  walked the full length of the block and reached the intersection  of York Street and Green Street, Officer Comegno rounded the  corner and “intercepted” him.     The officer exited his patrol car  and asked Gibson for identification.     He also asked Gibson where  he was coming from and whether he had permission to be on  Omega’s property.     Gibson gave his name and explained that he  was coming from “his child’s mother’s home located at 200 East  Broad Street,” which is located two blocks north of the Omega  Community Center.   He told the officer that “[h]e was waiting  for a ride, something along those lines.”    To Officer Comegno,  Gibson appeared “very excited” and “somewhat evasive,” and the  officer thought “he was looking around as though he was  attempting to run.”    The officer did not elaborate on how Gibson  was “evasive,” and Gibson did not flee.         Officer Comegno “felt that there was an intent to trespass  at the Omega Community Center” based on his observations and  interaction with Gibson and therefore “placed him under arrest.”  Only after he spoke with Gibson did he conclude that Gibson had  “the intent to trespass.”     Officer Comegno admitted that he did  not see Gibson involved in any criminal activity while he leaned  against the Community Center’s porch, but offered that one of  the reasons for making the arrest was Gibson’s failure to give  “lawful reasons” for leaning on the porch.                                     

   Officer Comegno handcuffed Gibson and searched him before  placing him in the patrol car.    No weapons or contraband were  found on his person at that time.      At the Burlington City police  station, a more thorough search of Gibson uncovered thirteen  clear plastic bags containing crack cocaine.      Officer Comegno explained that arresting Gibson for the  petty disorderly persons offense of defiant trespass, as opposed  to issuing a summons at the scene, was part of normal procedure.  He conceded that, at times, he issued summonses for offenses,  but only when directed by a supervisor, and he did not contact a  supervisor that night.                                    

B.      The trial court denied the motion to suppress based on  Officer Comegno’s testimony.     The court recounted that Officer  Comegno, an experienced officer familiar with the area,  “observed a black male . . . David Gibson standing on the  property of the Omega Community Center . . . leaning on the  front porch” at a time when the Community Center was not open to  the public.   The court stressed that a “no trespassing sign was  posted at porch level in the window.”     The court also noted that  Officer Comegno thought that Gibson was “acting furtively” and  “was going to run away.”   The court found that the officer had  probable cause to make an arrest for defiant trespass and  therefore was authorized to conduct a search incident to an    arrest.     The court emphasized it did not read our decision in  State v. Dangerfield,

171 N.J. 446 (2002), to limit the scope of  a search incident to an arrest to a weapons search -- a safety  search -- when the charge is for the petty disorderly persons  offense of defiant trespass.                                    C.       After the denial of his suppression motion, in accordance  with a plea agreement, Gibson pled guilty to third-degree  possession with intent to distribute CDS.     The court sentenced  Gibson on that charge to a term of eight years in State Prison  with a four-year parole disqualifier and imposed all requisite  fines and penalties.1    The remaining charges in the indictment  were dismissed.                                      II.       The Appellate Division affirmed the denial of the motion to  suppress.    State v. Gibson, 425 N.J. Super. 523 (App. Div.  2012).    The panel stated that Officer Comegno’s encounter with  Gibson began as a field inquiry, id. at 527 n.1, and then  evolved into an investigative stop given the officer’s  “reasonable suspicion of criminal activity” based on “the  1   The judgment of conviction does not explain the basis for sentencing Gibson in the range of a second-degree crime for a third-degree offense. Perhaps Gibson was sentenced to an extended term; the court do not know from this record. lateness of the hour, [Gibson’s] immediate departure from the  Omega property upon seeing the officer, and [Gibson’s] excited  and evasive demeanor when questioned,” id. at 527.      According to  the appellate panel, the reasonable suspicion for the  investigative stop ripened into probable cause to arrest for  defiant trespass “when [Gibson] failed to assert that he was on  the Omega property with permission.”     Id. at 527-28.         The panel maintained that Officer Comegno had probable  cause to arrest under the defiant trespass statute, N.J.S.A.  2C:18-3(b), “even though the property owner posted a ‘no  loitering’ sign instead of a ‘no trespassing’ sign.”      Id. at  528.    “[S]o long as the owner’s intent to keep others off the  property is reasonably conveyed,” the panel reasoned, the  statute’s notice requirement is met.     Id. at 529.   In the  panel’s view, “‘no loitering’ is a message sufficient to convey  the same meaning as ‘no trespassing.’”     Ibid.   The panel  concluded that the “no loitering” sign gave the officer a  reasonable basis to conclude that Gibson “was engaged in  criminal activity by leaning against the porch of the Omega  property.”   Id. at 530.2     2   The panel did not find sufficient merit to discuss Gibson’s argument that he should have been given the opportunity to post bail before he was searched at the stationhouse. Id. at 526.     The court granted Gibson’s petition for certification.      State v.  Gibson, 212 N.J. 460 (2012).                               

   III.                                  A.      Gibson argues that his arrest was unconstitutional because  it was not supported by probable cause and therefore the search  incident to the arrest was invalid as well.   He also contends  that “a ‘no loitering sign’ cannot adequately warn against  trespass because ‘loitering’ and ‘trespassing’ denote different  types of conduct.”   Gibson points out that “‘loitering’ is  commonly understood to mean presence in a place for a prolonged  period of time, with no aim or purpose,” whereas a defiant  trespass means an unprivileged entry onto another’s property  where there is adequate notice against trespass.   The  distinction between the two, Gibson claims, is critical.    He  submits that “the ‘no loitering’ sign adequately warned [him]  that he could not idly remain on Omega property for a prolonged  time,” but that the sign did not adequately warn him that he  would be subject to prosecution for “briefly leaning] against  the porch as he waited for a ride.”   He cautions that clothing  the police with the authority to arrest under circumstances such  as here, “creates [the] grave potential for official  harassment.”                                  

   Gibson also claims that the police violated his Fourth  Amendment rights by conducting a warrantless search at the  stationhouse.   He posits that “the stationhouse search was not a  search incident to an arrest” because the arrest and search  occurred at the scene and further that “the police did not have  authority to conduct an inventory search before releasing [him]  on his own recognizance or giving him an opportunity to post  bail.”                                 

B.      The State submits that, given the totality of the  circumstances, Officer Comegno had a well-grounded suspicion,  and therefore probable cause, to arrest Gibson for the petty  disorderly persons offense of defiant trespass.       .                 .     The  circumstances warranting an objectively reasonable police  officer finding probable cause for defiant trespass, according  to the State, include Gibson’s leaning on the porch of the Omega  property, the officer’s knowledge that the property was in a  high-crime area, prior complaints of the property owner about  trespassers, the officer’s observation that Gibson appeared to  be “very excited” and “somewhat evasive” when questioned, and  Gibson’s failure to provide a “lawful reason” for “leaning  against the raised porch.”   The State insists that the “no  loitering” sign was sufficient to give Gibson notice against  trespassing on Omega’s property, for the reasons expressed by the Appellate Division.   Alternatively, it submits that even if  the notice element of defiant trespass was not satisfied,  “[Gibson’s] relief should not be suppression of the evidence  under the exclusionary rule,” but dismissal of the defiant  trespassing charge “on legal sufficiency grounds.”     

       The State also argues that the police conducted a  permissible search of Gibson at the stationhouse.    It proffers  that “because Officer Comegno could only perform a limited  search incident to arrest at the scene, it was entirely  appropriate . . . to continue the search at the police station  so that a full search incident to arrest could be conducted  there.”   Citing Dangerfield, supra,  171 N.J. 446 , the State  submits that there is no legitimate authority for Gibson’s  position that he is “‘presumptively entitled to be released upon  the issuance of a summons, rather than being arrested.’”                                  

        IV.      The decisive issue before us is whether Officer Comegno had  probable cause to arrest Gibson for defiant trespass.     In the  absence of probable cause to arrest, the search at the scene and  the search at the stationhouse cannot pass constitutional  muster.   To determine whether the officer had a constitutional  basis to arrest Gibson, the court first must understand the statutory  requirements of defiant trespass.                                     

       A person commits the petty disorderly persons offense of  defiant trespass,            if, knowing that he is not licensed or           privileged to do so, he enters or remains in           any place as to which notice         against           trespass is given by:                 (1) Actual communication to the actor;                or                 (2) Posting in a manner prescribed by                law or reasonably likely to come to the                attention of intruders; or                 (3)    Fencing    or    other    enclosure                manifestly     designed     to     exclude                intruders.            [N.J.S.A. 2C:18-3(b).]3  This case deals only with the “enters” portion of the statute,  which has no temporal requirement for a completed trespass.  Provided sufficient notice is given against trespass, even a  brief willful entry onto another’s property may constitute a  violation of N.J.S.A. 2C:18-3(b).    In contrast, under the  “remains” portion of the statute, a person who is privileged or  licensed to enter onto property may be prosecuted for defiant  trespass if he refuses to leave after he is told to do so.  There, the duration of the incursion -- how long he “remains”  unwelcome on the property -- is a factor.    See, e.g., State v.   3   A person convicted of a petty disorderly persons offense may be sentenced to a term of imprisonment not to exceed thirty days. N.J.S.A. 2C:43-8. Slobin,  294 N.J. Super. 154, 156 (App. Div. 1996) (affirming  conviction where defendants “sat at [a] table for a period of  forty minutes after being asked to leave and refused] to do  so”); State v. Dargon, 165 N.J. Super. 500, 503-04 (App. Div.  1978) (holding, under predecessor statute, that although  defendants were permitted entry, “their deliberate and  persistent refusal to leave pursuant to the several requests  rendered them willful trespassers”).      The heart of N.J.S.A. 2C:18-3(b) is the notice provision.  See II The New Jersey Penal Code, Final Report of the New Jersey  Criminal Law Revision Commission § 2C:18-3 cmt. 2, at 212 (1971)  (“The theory of this Section is that where a landowner wishes to  assert his right to exclude from open land and to have the  backing of the criminal law, it is not too much to ask him to  give notice.”).      The questions here are whether Gibson was given “notice  against trespass” in a manner “reasonably likely to come to  [his] attention” and in a form so that he knew that he was not  “licensed or privileged” to set one foot on the curtilage of  Omega’s property or to lean against its porch.     N.J.S.A. 2C:18-  3(b).   In other words, did Gibson know -- or for that matter  would any reasonable person have known -- that by leaning  against the upraised porch, even momentarily, he would commit  the offense of defiant trespass?     That all depends on whether                                   the “no loitering” sign in the window overlooking the Community  Center’s porch gave sufficient notice to make a reasonable  person aware that even a slight and brief incursion on the  property was a prosecutable offense.    

        The Appellate Division expressed the opinion that “‘no  loitering’ is a message sufficient to convey the same meaning as  ‘no trespassing.’”    Gibson, supra, 425 N.J. Super. at 529.     At  least in the circumstances of this case, the court cannot agree with  that proposition.      As commonly understood, loitering suggests remaining or  lingering in a location for some indefinite period for no  apparent purpose.    See Webster’s Third International Dictionary  1331 (1981) (defining “loiter” as “2 a : to remain in or near a  place in an idle or apparently idle manner: hang around  aimlessly or as if aimlessly ”); The American Heritage Dictionary 740-41 (2d  College ed. 1991) (defining “loiter” as “1.   To stand idly  about; linger aimlessly.   2.   To proceed slowly or with many  stops.   3.   To delay or dawdle”); Black’s Law Dictionary 1027  (9th ed. 2009) (defining “loitering” as “[t]he criminal offense  of remaining in a certain place (such as a public street) for no  apparent reason”).      Under the New Jersey Code of Criminal Justice, a person  commits the disorderly persons offense of “[loitering for [the purpose of illegally using, possessing or selling controlled  substance,” N.J.S.A. 2C:33-2.1, if “he wanders, remains or  prowls in a public place with the purpose of unlawfully  obtaining or distributing” CDS, N.J.S.A. 2C:33-2.1(b)(1).     In  Camarco v. City of Orange, the Appellate Division addressed a  challenge to the constitutionality of a municipal loitering  statute that defined loitering as “remaining idle in essentially  one location,” “spending time idly loafing or walking,” and  “‘hanging around.’”    116 N.J. Super. 531, 533 (App. Div. 1971),  aff’d, 61 N.J. 463

 (1972).   See also Chicago v. Morales, 527 U.S. 41, 51 n.14, 119 S. Ct. 1849, 1856 n.14,  (1999) (referencing Chicago ordinance defining “‘loiter’  to mean ‘to remain in any one place with no apparent purpose’”).      All of these definitions and applications of loitering  convey something more than a temporary or brief respite at a  particular location.   On the other hand, trespass --  particularly as used in the defiant trespass statute -- has a  distinctly different meaning.   N.J.S.A. 2C:18-3(b) prohibits the  mere entering -- not just idly remaining -- in a place, when one  is not licensed or privileged to do so.   Unlike loitering, the  “enters” portion of the trespass statute has no temporal  element.       It is fair to say, given the commonly accepted definitions  of loitering, that the “no loitering” sign in the porch window                                    of the Omega Community Center communicated nothing more than  that a person should not be idly remaining or loafing on its  property.4   Through the commonly understood meaning of loitering  and the requirements of the defiant trespass statute, the court must  judge whether Officer Comegno had probable cause to arrest  Gibson.                                   

         V.       The central issue is not whether Officer Comegno was  authorized to conduct a field inquiry or an investigative stop  of Gibson, but rather whether he had probable cause to make an  arrest.                                   A.       A field inquiry “occurs when a police officer approaches an  individual and asks ‘if the person is willing to answer some  questions.’”   State v. Pineiro, 181 N.J. 13, 20 (2004) (quoting  State v. Nishina, 175 N.J. 502, 510 (2003)) (alteration  omitted).    So long as the questioning “is not harassing,   4   Although the court are not dealing with a loitering statute in this case, it bears mentioning that such statutes have been subject to constitutional challenge on vagueness grounds. Some loitering statutes have been notorious for “failing] to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits” and for “authorizing] and even encouraging] arbitrary and discriminatory enforcement.” See Morales, supra, 527 U.S. at 56, 119 S. Ct. at 1859, 144 L. Ed. 2d at 80. overbearing, or accusatory in nature,” Nishina, supra, 175 N.J.  at 510, and the person is free to refuse to answer and “‘go on  his way,’” Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319,  1324,  (1983) (citations omitted), the  person’s Fourth Amendment rights are not implicated, ibid.      A police officer may conduct an investigative stop when,  “based on specific and articulable facts,” he has a reasonable  suspicion that a person is engaged in criminal activity.  Pineiro, supra, 181 N.J. at 20 (citations omitted).    An  investigative stop occurs when “a reasonable person would have  believed that he was not free to leave” and constitutes a  “seizure” under the Fourth Amendment.   United States v.  Mendenhall, 100 S. Ct. 1870, 1877 An officer’s subjective, good-faith hunch  does not justify an investigatory stop -- even if that hunch  proves correct.   See State v. Arthur,  149 N.J. 1

, 8 (1997).    The  duration of an investigative stop must be limited in time and  scope to the purpose that justified the stop in the first place.  Royer, supra, 460 U.S. at 500, 103 S. Ct. at 1325, 75 L. Ed. 2d  at 238.      There is no question that Officer Comegno had the right to  ask questions of Gibson -- that is, to conduct a field inquiry.  The court need not resolve whether Gibson was subject to an  investigative stop because the officer placed him under arrest                                   immediately after questioning him.   The legitimacy of the  stationhouse search depends simply on whether Officer Comegno  had probable cause to make the arrest.                               

         B.      Both the Fourth Amendment of the United States Constitution  and Article I, Paragraph 7 of the New Jersey Constitution  provide for “[t]he right of the people to be secure in their  persons . . . against unreasonable searches and seizures.”     In  the absence of probable cause to believe that a person has  committed or is committing an offense, an arrest is an  unreasonable seizure in violation of our Federal and State  Constitutions.   See Dangerfield, supra, 171 N.J. at 455-56.    The  lawfulness of the arrest in this case depends on whether Officer  Comegno had probable cause to believe that Gibson had committed  a defiant trespass on the property of the Omega Community  Center.      Probable cause has been defined as “a well grounded  suspicion that a crime has been or is being committed,” State v.  Sullivan, 169 N.J. 204, 211 (2001) (citation and internal  quotation marks omitted), and as “a reasonable ground for belief  of guilt,” Brinegar v. United States, 338 U.S. 160, 175, 69 S.  Ct. 1302, 1310,  (1949) (citations and  internal quotation marks omitted).   It “is more than a mere  suspicion of guilt, [but] less than the evidence necessary to convict a defendant of a crime in a court of law.”     State v.  Basil,

202 N.J. 570

, 585 (2010) (citing Brinegar, supra, 338  U.S. at 175, 69 S. Ct. at 1310, 93 L. Ed. at 1890).    It “is a  fluid concept -- turning on the assessment of probabilities in  particular factual contexts” and addresses “‘the factual and  practical considerations of everyday life on which reasonable  and prudent men, not legal technicians, act.’”   Illinois v.  Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 2328-29, 76 L. Ed.  2d 527, 544 (1983) (citation omitted).   Last, “[in determining  whether there was probable cause to make an arrest, a court must  look to the totality of the circumstances, and view those  circumstances from the standpoint of an objectively reasonable  police officer.”   Basil, supra, 202 N.J. at 585 (citation and  internal quotations marks omitted).                              

   C.      The default position in our constitutional jurisprudence is  that warrantless searches are presumptively invalid.     State v.  Frankel,

179 N.J. 586, 598, cert. denied,

543 U.S. 876(2004), overruled in part by State v.  Edmunds,

211 N.J. 117 (2012); see also Kentucky v. King, 563  U.S. __, __, 131 S. Ct. 1849, 1856, (2011).   For that reason, the State bears the burden of proving  by a preponderance of the evidence that a warrantless search  falls within one of the “‘well-delineated exceptions’ to the warrant requirement” of the Fourth Amendment and Article I,  Paragraph 7 of our State Constitution.     Frankel, supra, 179 N.J.  at 598 (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 2412  (1978)).     In this case, the  State claims that the warrantless search of Gibson at the  stationhouse was incident to his arrest.    See State v. Moore,  181 N.J. 40, 45 (2004) (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040,  (1969))  (holding that search incident to arrest is exception to warrant  requirement).   The validity of the search, however, depends on  the constitutionality of the arrest.     See ibid.   Therefore, the  State bears the burden of showing that Officer Comegno had  probable cause to make the arrest.      At the suppression hearing, the trial court heard testimony  from Officer Comegno and determined that he had probable cause  to arrest Gibson for defiant trespass.    Inasmuch as that finding  is based on the court’s credibility assessment of Officer  Comegno, the only witness who testified, it is entitled to  deference -- but not blind deference.    This Court is not obliged  to defer to clearly mistaken findings -- findings that are not  supported by sufficient credible evidence in the record.      See  State v. Elders,

192 N.J. 224, 245 (2007) (noting that trial  court’s “findings were entitled to deference unless they were  ‘clearly mistaken’ or ‘so wide of the mark’ that the interests of justice required appellate intervention.”          (citing N.J. Div.  of Youth & Family Servs. v. M.M.,

189 N.J. 261, 279 (2007)));  State v. Johnson,

42 N.J. 146, 162 (1964) (stating that aim of  appellate review is “to determine whether the findings made  could reasonably have been reached on sufficient credible  evidence present in the record”).       Nor is the Court obliged to  defer to the ultimate finding of probable cause when the facts  and inferences do not support that conclusion.      For example, in State ex rel. J.M.,

339 N.J. Super. 244,  256-57 (App. Div. 2001), the Appellate Division overturned the  trial court’s denial of a motion to suppress because the trial  court clearly erred in finding that a police officer had  probable cause to arrest the defendant for defiant trespass.    

               In  J.M., one evening, a resident told a police officer that “she  was having a problem with people ‘hanging out’ on her porch and  dealing drugs.”   Id. at 246.   The officer testified that “the  police had received complaints about trespassers and narcotics  activity in that area” and that he had personally “made arrests  at that location.”   Id. at 247.    That same evening, the officer  observed three people on the resident’s porch, none of whom  appeared to be engaged in criminal activity.          Ibid.   The officer  spoke with the resident, who advised him that two of the people  on the porch were her relatives and that she did not know the  third person -- the juvenile defendant.       Ibid.     When the officer asked the defendant why he was on the porch, he responded that  he was “hanging out.”   Ibid.    Although the resident did not ask  that the defendant be removed, the officer pointed out to the  defendant the “‘no trespassing’ sign in the window of the house”  and arrested him for defiant trespass.     Ibid.   A search of the  defendant at the police station uncovered drugs on his person.  Ibid.      The Appellate Division in J.M. found the evidence  insufficient to support the trial court’s finding of probable  cause to arrest.   Id. at 248.    It determined that “it belies  common sense that [the defendant] just wandered off the street  to join two other young people who were not trespassers,” that  it was “highly unlikely” that one of the resident’s relatives  had not invited him to be there, and that the police failed “to  make a good faith evaluation of the circumstances  presented . . . before effectuating an arrest.”      Id. at 248-49.      Also significant to our analysis is Dangerfield, supra,

171 N.J. 446.   There, the court determined that the State failed to show  that, under the totality of the circumstances, a detective had a  well-grounded suspicion -- or, in other words, probable cause --  to arrest the defendant for defiant trespass.      Id. at 457.  Thus, the court affirmed a suppression motion because the search was  incident to an unlawful arrest.    Id. at 458.     In Dangerfield, a  police detective observed the defendant sitting on a bicycle in                                     a public housing project, where “no trespassing” signs were  posted.     Id. at 457.     The detective had encountered the  defendant on two previous occasions, on each of which the  defendant gave a “legitimate and lawful” explanation for his  presence.    Ibid.   On this occasion, the defendant saw the  detective and another detective and “rode away on his bicycle.”  Ibid.   The detectives stopped the defendant and questioned him  about his flight.        Ibid.    He explained that he was “doing  nothing.”    Id. at 451.         The defendant was arrested for defiant  trespassing.     Ibid.   

     This Court emphasized that the defendant  was never “asked whether he knew or was visiting anyone at the  complex,” although such questioning was part of established  protocol for “approaching suspected trespassers.”           Id. at 457.  This Court also pointedly stated that “flight alone does not  create reasonable suspicion for a stop, let alone probable  cause.”     Ibid. (citing State v. Tucker,

136 N.J. 158, 168-69  (1994)).      Both J.M. and Dangerfield demonstrate that courts carefully  assess whether the probable-cause justification for an arrest  for defiant trespass is supported by the fair inferences that  can be drawn from the record.          The court now must determine whether,  viewed through the eyes of an objectively reasonable police  officer, there was sufficient credible evidence to support the  arrest of Gibson for defiant trespass.                                                 VI.      Even under our deferential standard of review, the court cannot  find an objectively reasonable basis for Gibson’s arrest.    At  3:20 a.m., while in his patrol car, Officer Comegno observed a  black male -- whom he later learned was David Gibson -- leaning  against the upraised porch of the Omega Community Center.    In a  window facing the porch was posted a “no loitering” sign.  Whether the sign was directed to those who ventured onto the  porch or those lingering in the outermost part of the property  or curtilage -- or even the sidewalk -- is not evident from the  record.   Based on the record, and given the limited time for the  officer’s observations, it appears that Gibson was seen leaning  on the porch for no more than a few moments, and may not have  been standing more than a foot on Omega’s property, before he  began walking south on York Street.    The State presented no  evidence regarding the degree of encroachment on Omega’s  property, whether inches or feet, or how long the encroachment  lasted, whether seconds or longer.     The State bore the burden of  proving by a preponderance of the evidence that Officer Comegno  had probable cause to arrest Gibson.      The officer did not see Gibson engaged in any illegal  activity.   As soon as the officer saw Gibson, Gibson moved on.  Gibson’s observed conduct hardly fits the commonly understood meaning of loitering -- remaining in a place in an idle manner,  hanging around, lingering aimlessly, or loafing.      Although Officer Comegno was driving south in the same  direction in which Gibson was walking, he did not stop Gibson  immediately.   Instead, he drove around the block and intercepted  Gibson after Gibson had walked the length of York between Jones  Avenue and Green Street.   Gibson did not take flight, or dart  between buildings, after he spotted the patrol car.      No one can quarrel with the officer’s decision to approach  Gibson and ask him some questions.    Gibson identified himself  and stated that he had been visiting his child’s mother, who  lived two blocks north of the Omega Community Center, and that  he had been “waiting for a ride.”    Although Officer Comegno  claimed that Gibson was “evasive” and looked as though he might  “run,” he gave no factual support for those subjective feelings.  The officer cited, as one basis for making the arrest, Gibson’s  failure to give “lawful reasons” for leaning on the porch, but  Gibson explained why he was on the street at that hour.      The court accept the trial court’s credibility findings concerning  Officer Comegno’s testimony.   The court accept that the Omega Community  Center is located in a high-crime area and that the Community  Center’s president had asked the police to make checks because  there had been incidents of criminal mischief.     The court cannot    accept, however, the inferences drawn by the officer because  they are not objectively reasonable.      The constitutional right to be free from arbitrary arrest  is not suspended in high-crime neighborhoods where ordinary  citizens live and walk at all hours of the day and night.  Momentarily leaning against a building, or an upraised porch, on  a city block, would not be considered loitering to an  objectively reasonable citizen.    That would be so even if the  passerby was standing a foot or two on the curtilage of the  building’s property.      If Gibson was not loitering, as the term is conventionally  understood, then how could Officer Comegno have formed a well-  grounded suspicion that Gibson was defiantly trespassing on  Omega’s property?   As the court explained earlier, trespass and  loitering are terms with distinctly different meanings.     The  notice on the Omega property did not suggest that leaning on the  porch for a very brief period would subject the offender to a  defiant trespass prosecution.   The “notice against trespass” had  to be communicated in a manner that would have made a reasonable  person aware that setting even a foot on the curtilage or  leaning against the porch was unlawful.    N.J.S.A. 2C:18-3(b).      It bears mentioning that the trial court, in reciting its  factual findings, mistakenly referred to a “no trespassing” sign  in the porch window.   The court do not know whether this was a slip of                                     the tongue or a mistaken belief that may have affected the  resulting legal conclusion.    Nevertheless, this error ultimately  is of little moment in our analysis.      The court do not suggest that a “notice against trespass” must be  phrased in some talismanic form.       There are a multitude of ways  in which the message can be conveyed.       Had Gibson remained idly  leaning on the porch for an extended period of time, perhaps  Gibson’s conduct would have had the appearance of loitering, and  Officer Comegno might then have had a reasonable suspicion of  defiant trespassing.    But that is not the case here.      The State argues that Gibson’s walking away from the Omega  Community Center gave rise to reasonable suspicion on the part  of Officer Comegno.    But had he remained where he had stood  Gibson surely would have been loitering.       This type of Catch-22  scenario cannot support a probable cause determination.      Even  flight, standing alone, will not support a well-grounded  suspicion for a defiant trespass arrest.       See Dangerfield,  supra, 171 N.J. at 457.      The defiant trespass statute cannot be used as an  instrument for random stops and arrests.       That was made clear in  both Dangerfield and J.M.     The State had the burden of  justifying the warrantless arrest in this case.       The court must view  the propriety of Officer Comegno’s actions through the lens of  the objectively reasonable police officer.       The court conclude that                                     even under the deferential standard that guides appellate  review, the State has failed to show that Officer Comegno had  probable cause to arrest Gibson for defiant trespass.       In short,  there is insufficient evidence in the record to support a  finding of probable cause.    The search at headquarters cannot  stand because it was incident to an unconstitutional seizure.  See State v. Badessa,

185 N.J. 303, 311 (2005) (citing Wong Sun  v. United States,

371 U.S. 471, 485, 83 S. Ct. 407

, 416, 9 L.  Ed. 2d 441, 454 (1963)).   

     For that reason, the court are compelled to  suppress the fruits of that search.      The court need not reach Gibson’s second argument:        that he should  have been given the opportunity to post bail before the  stationhouse search.   However, the court do not hesitate to offer that  once an officer lawfully arrests a suspect, he has the right and  duty to search him for weapons and contraband before placing him  in a patrol car.   See Chimel, supra, 395 U.S. at 762-63, 89 S.  Ct. at 2040, 23 L. Ed. 2d at 694.       It also follows that the  police have the authority to ensure, at headquarters, that a  person under arrest is not armed with a weapon.                                  

  VII.      For the reasons given, the court reverse the judgment of the  Appellate Division and suppress the evidence seized during the                                       stationhouse search.   The court remand for proceedings consistent with  this opinion.       CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE ALBIN’s opinion.                                      

SUPREME COURT OF NEW JERSEY  NO.     A-27                     SEPTEMBER TERM 2012  ON CERTIFICATION TO             Appellate Division, Superior Court    STATE OF NEW JERSEY,        Plaintiff-Respondent,               v.  DAVID M. GIBSON,        Defendant-Appellant.     DECIDED               January 7, 2014                Chief Justice Rabner            PRESIDING OPINION BY                Justice Albin CONCURRING/DISSENTING OPINIONS BY DISSENTING OPINION BY                                  REVERSE AND CHECKLIST                                  REMAND CHIEF JUSTICE RABNER                X JUSTICE LaVECCHIA                   X JUSTICE ALBIN                       X JUSTICE PATTERSON                   X JUDGE RODRÍGUEZ (t/a)               X JUDGE CUFF (t/a)                    X TOTALS                              6                                              30