Summer Municipal Court Law Review 2018
Summer Index
1. Consent to search voluntarily given here. State v. Hagans
2. Warrantless blood draw permitted in fatal accident based on exigency. State v. Zalcberg
3. Later obtained search warrant does not correct prior illegal warrantless search. State v. Atwood
4. Evidence suppressed where no valid inventory search. State v. Hummel
5. Driver’s failure to provide registration here permitted limited search. State v. Terry
7. Domestic violence search to seize firearms could also seize cocaine in plain view. State v. Hemenway
1. Consent to search voluntarily given here. State v. Hagans233 N.J. 30 (2018).
Because the trial court’s determination that the driver ultimately knowingly and voluntarily gave consent to search is supported by sufficient credible evidence, the trial court properly denied defendant’s motion to suppress the evidence seized during the search.
2. Warrantless blood draw permitted in fatal accident based on exigency. State v. Zalcberg232 N.J. 335 (2018).
The totality of the circumstances in this case evince an objective exigency, relaxing the need for a warrant and rendering the officer’s warrantless blood draw constitutional. The court held that the facts of this case, in totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established telephonic warrant system, and the myriad duties with which the police officers present were tasked. The court also affords “substantial weight” to the “potential dissipation of” the alcohol in defendant's blood. Adkins, 221 N.J. at 303, 113 A.3d 734. Therefore, the court held that the warrantless blood draw did not violate defendant's constitutional rights in this case.
In this case, the Court considers whether police officers violated the Fourth Amendmentof the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution when they took a sample of defendant’s blood without a warrant during an investigation of alleged vehicular manslaughter and driving while intoxicated.
A grand jury charged defendant with second-degree vehicular homicide, two counts of third-degree assault by auto, and fourth-degree assault by auto. Defendant filed a pre-trial motion to suppress the results of the warrantless blood test. The trial court granted defendant’s motion to suppress in a written opinion. After finding that the officers had probable cause to obtain a blood sample, the judge held that the State failed to establish that an exigency existed sufficient to constitute a recognized exception to the warrant requirement. The judge determined, based upon the totality of the circumstances, that the only exigency the State could establish was the natural metabolization of alcohol in defendant’s blood, which was alone insufficient to justify a warrantless blood draw under Missouri v. McNeely, 569 U.S. 141(2013), and State v. Adkins, 221 N.J. 300, 303 (2015). An Appellate Division panel affirmed, substantially for the reasons expressed in the trial judge’s written decision. The Court granted the State’s motion for leave to appeal. 229 N.J. 249(2017). HELD: The totality of the circumstances in this case evince an objective exigency, relaxing the need for a warrant and rendering the officer’s warrantless blood draw constitutional.
1. A warrantless search is constitutionally invalid unless one of the few well-delineated exceptions to the warrant requirement applies. The exigent-circumstances exception is frequently cited in connection with warrantless blood draws. In Schmerber v. California, 384 U.S. 757(1966), the United States Supreme Court established that a compelled taking of a blood sample for the purpose of alcohol-content analysis constitutes a search within the Fourth Amendment’s framework. Approximately fifty years later, in McNeely, the Supreme Court clarified that while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances. 569 U.S. at 156.
2. Prior to McNeely, New Jersey, like many states, provided de facto, if not de jure, support for law enforcement to believe that alcohol dissipation in and of itself supported a finding of exigency for a warrantless search of bodily fluids in suspected driving-under-the-influence cases. Adkins, 221 N.J. at 303. Based on that pre-McNeely understanding, the defendant in Adkins, suspected of drunk driving, was subjected to a warrantless blood test following a single-car accident. Id. at 302. On appeal, the Court pronounced that McNeely’s directive that courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s natural dissipation of alcohol would receive pipeline retroactivity. Id. at 312, 317. The Court directed that reviewing courts must focus on the objective exigency of the circumstances that the officer faced in the situation and stated that the potential dissipation of [blood-alcohol] evidence may be given substantial weight as a factor to be considered in the totality of the circumstances. Id. at 303 (emphases added).
3. In State v. Jones, the Appellate Division determined that a warrantless blood draw was constitutional under the totality of the circumstances. 441 N.J. Super. 317, 321 (App. Div. 2015). Jonesinvolved a defendant who caused a three-vehicle accident at a heavily traveled intersection during rush hour. Several police officers, EMS personnel, and firefighters arrived to manage the scene and tend to the occupants of the three vehicles. The defendant was unconscious in her car; it took half an hour to remove her from her vehicle, at which time emergency personnel smelled alcohol on her breath. One officer proceeded to the hospital to follow up on the defendant’s injuries. When the defendant regained consciousness at the hospital, she displayed signs of intoxication, such as slurred speech and inability to answer questions. Moreover, the defendant admitted to the officer that she had consumed alcohol earlier. Approximately one hour and fifteen minutes after the accident occurred, a nurse drew a sample of the defendant’s blood at the officer’s request. The officer did not seek a warrant before ordering the test because he was not required to under standard procedure and had not received training on telephonic warrants.
4. Here, defendant’s accident was a serious one that occurred on a busy state highway on the night of a nearby event that drew unusually high traffic. Any delay in seeking to obtain defendant’s blood sample after the establishment of probable cause is attributed to the complexity of the situation and the reasonable allocation of limited police resources not a lack of emergent circumstances. The officers’ lack of awareness of any formal procedure through which they could obtain a telephonic warrant, coupled with their belief that they did not need such a warrant, suggests that there was no reasonable availability of a warrant. Accidents do not, per se, create objective exigency, but the circumstances that accompany them may factor into a court’s exigency analysis. The facts of this case, in totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established telephonic warrant system, and the myriad duties with which the police officers present were tasked. Substantial weight is also afforded to the potential dissipation ofthe alcohol in defendant’s blood. Adkins,221 N.J. at 303. The warrantless blood draw did not violate defendant’s constitutional rights in this case.
JUSTICES ALBIN AND TIMPONE, DISSENTING, are of the view that the majority has not applied the principles set forth in McNeelyand stress that warrantless searches are presumptively invalid. Justices Albin and Timpone add that a deferential standard of review should guide the Court in reviewing a suppression order. An officer’s ignorance of the law does not justify the violation of a person’s federal constitutional rights, according to Justices Albin and Timpone.
3. Later obtained search warrant does not correct prior illegal warrantless search. State v. Atwood232 N.J. 433 (2018).
Search warrants are prospective in nature—they authorize the taking of action. A later-obtained search warrant does not retroactively validate preceding warrantless conduct that is challenged through a suppression motion focused on the legitimacy of the seizure that gave rise to a later search. The State must bear the burden of proving the legitimacy of the seizure that led to a later warrant and search—in this case the stop.
4. Evidence suppressed where no valid inventory search. State v. Hummel232 N.J. 196 (2018).
The Court finds no valid inventory search and therefore affirms the Appellate Division’s determination that the evidence seized during the search should be suppressed.
An inventory search must be reasonable under the circumstances to pass constitutional muster. In Mangold, the Court explained that the propriety of an inventory search involves a two-step inquiry: (1) whether the impoundment of the property is justified; and (2) whether the inventory procedure was legal. Id. at 583. For there to be a lawful inventory search, there must be a lawful impoundment. Courts need only analyze the reasonableness of the inventory search if the impoundment is justified. Several factors are relevant to the reasonableness inquiry. They include “the scope of the search, the procedure used, and the availability of less intrusive alternatives.” Id. at 584.
Under the first Mangoldinquiry, the detectives’ impoundment of defendant’s purse was not justified. The detectives had not arrested defendant before seeking to impound her purse. Defendant kept her purse open and within her reach for the entire interrogation. She rummaged through her bag several times in front of the detectives. The detectives did not frisk defendant at any point during her detention. They sought to remove her bag from the interrogation room only after she asked for an attorney. Crucially, they asked defendant if she would rather examine the contents of her purse herself. It is clear that had valid safety concerns existed at the time they sought to impound her bag, the officers would not have given defendant the option to search her own purse.
Even if the initial impoundment was justified under the first Mangoldinquiry, the search would fail under the balancing test required by the second. The detectives initiated the search to find the $500 defendant claimed her purse contained. The scope of the search should have been limited to that $500. The State concedes that the departmental policy for inventory searches is unknown. There is no way then to determine whether the detectives’ search was executed according to any purported policy or practice. Finally, the detectives had reasonable, less intrusive alternatives available to protect them against false theft claims that would have simultaneously respected defendant’s constitutionally protected privacy rights. The inventory search exception to the Fourth Amendment warrant requirement does not apply, and the detectives’ search was unconstitutional.
5. Driver’s failure to provide registration here permitted limited search. State v. Terry232 N.J. 218 (2018).
Sufficient credible evidence supported the trial court’s determination that defendant was given an adequate opportunity to present the vehicle’s registration before the search commenced. When a driver is unwilling or unable to present proof of a vehicle’s ownership, a police officer may conduct a limited search for the registration papers in the areas where they are likely kept in the vehicle. When a police officer can readily determine that the driver or passenger is the lawful possessor of the vehicle—despite an inability to produce the registration—a warrantless search for proof of ownership will not be justified.
6. Search under a tarp under house curtilage not permitted. Collins v. Virginia, 138 S. Ct. 1663 (2018).
During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins' Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph.
Without a search warrant, Office Rhodes walked to the top of the driveway, removed a tarp, confirmed that a motorcycle was stolen by running the license plate and vehicle identification numbers.
Held: The automobile exception does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein.
(a) This case arises at the intersection of two components of the Court's Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home. In announcing each of the automobile exception's justifications--i.e., the "ready mobility of the automobile" and "the pervasive regulation of vehicles capable of traveling on the public highways," California v. Carney, 471 U. S. 386, 390, 392--the Court emphasized that the rationales applied only to automobiles and not to houses, and therefore supported their different treatment as a constitutional matter. When these justifications are present, officers may search an automobile without a warrant so long as they have probable cause. Curtilage--"the area 'immediately surrounding and associated with the home' "--is considered " 'part of the home itself for Fourth Amendment purposes.' " Florida v. Jardines, 569 U. S. 1, 6.
Thus, when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presumptively unreasonable absent a warrant.
(b) As an initial matter, the part of the driveway where Collins' motorcycle was parked and subsequently searched is curtilage. When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area "outside the front window," that enclosure constitutes "an area adjacent to the home and 'to which the activity of home life extends.' " Jardines, 569 U. S., at 6, 7.
Because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes' invasion of the curtilage. Nothing in this Court's case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and " 'untether' " the exception " 'from the justifications underlying' " it. Riley v. California, 573 U. S. ___, ___.
This Court has similarly declined to expand the scope of other exceptions to the warrant requirement. Thus, just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant--see Horton v. California, 496 U. S. 128, 136-137--and just as an officer must have a lawful right of access in order to arrest a person in his home--see Payton v. New York, 445 U. S. 573, 587-590--so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception.
To allow otherwise would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application.
7. Domestic violence search to seize firearms could also seize cocaine in plain view. State v. Hemenway (App. Div. 2018).
Defendant's putative paramour filed a complaint against defendant under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, alleging he forcibly entered her residence and assaulted and threatened her. After considering the victim's sworn testimony, a Family Part judge issued an ex parte temporary restraining order (TRO) under N.J.S.A. 2C:25-28(g) and a warrant to search defendant's apartment and seize any firearms as authorized by N.J.S.A. 2C:25-28(j).
The police arrested defendant on fourth degree contempt, N.J.S.A. 2C:29-9(b)(1), when he refused to permit the officers to enter his apartment to execute the domestic violence search warrant. Once inside, the officers found in plain view cocaine and drug paraphernalia. Based on the sworn testimony of a detective, a Criminal Part judge issued a telephonic warrant to search the apartment for narcotics. The plain view narcotics was deemed admissible.
Handling Drug, DWI and Serious Cases in Municipal Court Seminar
October 1, 2018 5:30PM-9:05PM
NJ Law Center, New Brunswick, NJ
Please forward to any attorneys, prosecutors or judges you believe may be interested.
Speakers: Kenneth A. Vercammen, Esq., Past Municipal Court Attorney of the Year
Norma M. Murgado, Esq.
Chief Prosecutor (Elizabeth), Chief Prosecutor (Woodbridge)
Lorraine Nielsen, Esq. Municipal Court Prosecutor, Milltown
John Menzel, Esq.
Past Chair, NJSBA Municipal Court Practice Section
William Brigiani, Esq. Past Middlesex Bar President
This informative seminar on Municipal Court practice and procedure will familiarize you with recent new developments affecting cases that are heard in Municipal Court.
An authoritative panel of experienced attorneys will be joined by well-respected Municipal Prosecutors to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION
NJICLE, A Division of the NJSBA NJ State Bar
For lawyers $170- $190 tuition depending on NJSBA membership
½ price for Judges.
Photos
1. Municipal Court College seminar Thank you speakers 2018 NJ Bar Municipal Court College seminar
Speakers: Kenneth A. Vercammen, Esq, Norma Murgado Elizabeth & Woodbridge Prosecutor, John Menzel, Esq. Joshua Reinitz, Esq., Lorraine Nielson, Prosecutor Milltown, East Brunswick, North Brunswick
Handling Drug, DWI and Serious Cases in Municipal Court Seminar
October 1, 2018 5:30PM-9:05PM
NJ Law Center, New Brunswick, NJ
Please forward to any attorneys, prosecutors or judges you believe may be interested.
Speakers: Kenneth A. Vercammen, Esq., Metuchen Public Defender, Past Municipal Court Attorney of the Year
Tara Auciello, Esq. Municipal Prosecutor (South River)
William Brigiani, Esq. Past Middlesex Bar President
John Menzel, Esq.
Past Chair, NJSBA Municipal Court Practice Section
Norma M. Murgado, Esq.
Chief Prosecutor (Elizabeth), Chief Prosecutor (Woodbridge)
This informative seminar on Municipal Court practice and procedure will familiarize you with recent new developments affecting cases that are heard in Municipal Court.
An authoritative panel of experienced attorneys will be joined by well-respected Municipal Prosecutors to explore a wide variety of matters that you are likely to encounter. They will also bring you up to date on recent developments you need to understand in order to effectively represent your clients.
NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION
NJICLE, A Division of the NJSBA NJ State Bar
For lawyers $170- $190 tuition depending on NJSBA membership
½ price for Judges.
Piscataway Wills & Estate Planning Seminar October 11 7pm
As my clients gray, we do more Estate Planning.You and friends may be interested in Wills & Power of Attorney Seminar Piscataway Library. Open to the public. You do not need to be a resident.
1. NJ Estate Tax eliminated for 2018 & NJ Veterans Tax exemption of up to $3,000
2. The 2018 changes in Federal Estate and Gift Tax
3. The new Digital Fiduciary Act & New law permits Executor to resign if all parties consent
4. Power of Attorneys
5. Living Will
6. Administering the Estate/ Probate/Surrogate
7. Avoiding unnecessary expenses
Photos Municipal Court College seminar
Handling Drug, DWI and Serious Cases in Municipal Court Seminar
October 1, 2018
Piscataway Wills & Estate Planning Seminar October 11
N.J. Municipal Court - Law Review SUBSCRIPTION INFO
Please forward a check or voucher for $20.00 to receive the NJ Municipal Court Law Review. This quarterly newsletter reports changes in New Jersey Court decisions, selected revised motor vehicle and criminal laws, cases, seminars, and information on Municipal Court practice.
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. Municipal Court and criminal law attorneys may also be interested in the ABA’s CRIMINAL LAW FORMSbook
Award winning book from the American Bar Association
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Kenneth Vercammenis an Edison, Middlesex County, NJ trial attorney where he handles Criminal, Municipal Court, Probate, Civil Litigation and Estate Administration matters. Ken is author of the American Bar Association's award winning book “Criminal Law Forms” and often lectures to trial lawyers of the American Bar Association, NJ State Bar Association and Middlesex County Bar Association. As the Past Chair of the Municipal Court Section he has served on its board for 10 years.
Awarded the Municipal Court Attorney of the Year by both the NJSBA and Middlesex County Bar Association, he also received the NJSBA- YLD Service to the Bar Award and the General Practitioner Attorney of the Year, now Solo Attorney of the Year.
Ken Vercammen is a highly regarded lecturer on both Municipal Court/ DWI and Estate/ Probate Law issues for the NJICLE- New Jersey State Bar Association, American Bar Association, and Middlesex County Bar Association. His articles have been published by NJ Law Journal, ABA Law Practice Management Magazine, YLD Dictum, GP Gazette and New Jersey Lawyer magazine. He was a speaker at the 2013 ABA Annual meeting program “Handling the Criminal Misdemeanor and Traffic Case” and serves as is the Editor in Chief of the NJ Municipal Court Law Review.
For nine years he served as the Cranbury Township Prosecutor and also was a Special Acting Prosecutor in nine different towns. Ken has successfully handled over one thousand Municipal Court and Superior Court matters in the past 27 years.
His private practice has devoted a substantial portion of professional time to the preparation and trial of litigated matters. Appearing in Courts throughout New Jersey several times each week on Criminal and Municipal Court trials, civil and contested Probate hearings. Ken also serves as the Editor of the popular legal website and related blogs. In Law School he was a member of the Law Review, winner of the ATLA trial competition and top ten in class.
Throughout his career he has served the NJSBA in many leadership and volunteer positions. Ken has testified for the NJSBA before the Senate Judiciary Committee to support changes in the DWI law to permit restricted use driver license and interlock legislation. Ken also testified before the Assembly Judiciary Committee in favor of the first-time criminal offender “Conditional Dismissal” legislation which permits dismissal of some criminal charges. He is the voice of the Solo and Small firm attorneys who juggle active court practice with bar and community activities. In his private life he has been a member of the NJ State champion Raritan Valley Road Runners master’s team and is a 4thdegree black belt.
KENNETH VERCAMMEN
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
