NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3742-08T1
STEVEN COLONNA,
Plaintiff-Appellant,
v.
TOWNSHIP OF PENNSVILLE,
PENNSVILLE TOWNSHIP POLICE
DEPARTMENT,
Defendants-Respondents.
Submitted April 28, 2010 - Decided
Before Judges Graves and J. N. Harris.
On appeal from the Superior Court of New
Jersey, Law Division, Salem County, Docket
No. L-23-07.
Glen L. Schemanski, attorney for appellant.
Powell, Birchmeier & Powell, attorneys for
respondents (James R. Birchmeier, on the
brief).
PER CURIAM
Plaintiff appeals from the dismissal of his complaint
against defendants that alleged the negligent deprivation of his
liberty, property, and firearms purchaser identification card by
May 19, 2010
A-3742-08T1
2
local government.1 We find no basis to disturb the grant of
summary judgment in favor of defendants and therefore we affirm.
I.
We recite the facts most indulgently in favor of plaintiff
because summary judgment was granted against him in the Law
Division. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523 (1995); Pote v. City of Atlantic City, 411 N.J. Super. 354,
356 (App. Div. 2010).
On January 3, 2005, a representative of defendant
Pennsville Township Police Department (Department) received
information from plaintiff's girlfriend, Tracy Neciles,2 that
plaintiff had told her that he was going to kill himself and
that he also had waved a wooden-handled handgun in the air in
her presence. At least six police officers were dispatched to
plaintiff's residence in response to this information. At the
scene, plaintiff calmly exited his dwelling——empty-handed——at
1
Although the complaint is couched in constitutional terms of
alleged deprivations of a liberty interest, property rights, and
civil rights, plaintiff seeks no redress pursuant to federal or
state civil rights acts. See 42 U.S.C.A. § 1983; N.J.S.A. 10:6-1
to -2. Instead, plaintiff firmly plants his common law tort
cause of action within the embrace of the New Jersey Tort Claims
Act (TCA), N.J.S.A. 59:1-1 to 12-3.
2
The record contains differing references to the surname of
plaintiff's girlfriend. In plaintiff's deposition, he spelled
her name for the court reporter as "Tracy Neciles, N-E-C-I-L-E-
S." In the spirit of giving plaintiff the benefit of all
reasonable inferences, we adopt plaintiff's spelling.
A-3742-08T1
3
the request of a police officer, and thereafter fully cooperated
with law enforcement officials.
In his deposition, plaintiff denied waving a firearm, but
conceded that he and Neciles had argued, and that he uttered
words indicating that he was going to kill himself,3 or at least
gave that impression to Neciles:
Q. Do you ever recall threatening that you
were going to kill yourself during the
course of that argument?
A. Yeah. I think my words were to the effect
that she was so vehement. I said I've had
it, I'm getting out of here, words to that
effect, I've had it I'm getting out and I
meant it. I was tired of fighting with her
all the time over everything and I was the
only guy there trying to help her out. I was
at my saturation point with her at that
moment and I said I'm out of here, leave me
alone, I'm leaving, which never
materialized.
Q. And in addition to what you've told me
about what you said, do you recall saying
anything about harming Tracy, harming
yourself, or harming anyone else?
A. I probably——I'm sure——I probably did use
my poor grammatical example of, you know,
I'm going to jump out the window, so to
speak, leave me alone. Words to that effect.
I think that's why she went to the police.
She actually thought I was going to do
something stupid.
3
The police report indicated that plaintiff told an officer that
"he did tell Ms. [Neciles] that he was going to die in her bed,
but did not really mean it."
A-3742-08T1
4
After plaintiff surrendered to police officers at his home,
he was not arrested, handcuffed, or charged with an offense.
Instead, plaintiff was transported by police officers directly
to Memorial Hospital of Salem County for what plaintiff
described as "some kind of a psychological evaluation." Several
hours later, after a mental health screening assessment had been
administered to plaintiff, he was released. Although ultimately
diagnosed with a major depressive disorder and referred for
counseling, plaintiff was not found to be a danger to himself or
to others. He called his girlfriend, who obligingly picked him
up from the facility to drive him home. During this time, the
police seized plaintiff's three firearms and firearms purchaser
identification card that had remained in his dwelling.4
This incident was not plaintiff's first encounter with the
Pennsville police. In April 2004, plaintiff uttered "derogatory
comments without intent" that brought two police officers to his
residence:
Yeah. It was along the lines of I've had it,
I'm ready to jump off a building or jump off
a cliff. Words to that effect. It was mostly
in anger.
After being interviewed over the telephone——presumably by a
mental health screening service——plaintiff was advised that the
4
Presumably, this seizure was pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35; N.J.S.A.
2C:25-21(d)(1)(b).
A-3742-08T1
5
police would call him back after a few hours and "if everything
is okay . . . that was pretty much the end of it." Indeed,
plaintiff was not arrested, not charged with an offense, and not
transported to a psychiatric facility for a mental health
examination. On this prior occasion, plaintiff's weapons and
firearms purchaser identification card were not seized.
Neciles ultimately declined to file a complaint against
plaintiff pursuant to the PDVA for the more recent 2005
incident. Nevertheless, the police treated the matter as falling
within the PDVA's framework and transferred plaintiff's firearms
to the Salem County Prosecutor's Office (the Prosecutor's
Office) in February 2005 pursuant to N.J.S.A. 2C:25-21(d)(2).
After several unsuccessful informal efforts to retrieve his
weapons and firearms identification card from the Department and
the Prosecutor's Office directly, plaintiff turned to the
judiciary.
On May 27, 2005, notwithstanding the absence of any actions
then pending in either the Family or Criminal Parts, plaintiff
filed a motion——without a docket number——in the Criminal Part
for "the return of weapons and firearms [purchaser]
A-3742-08T1
6
identification card seized on Jan[uary] 3, 2005."5 On July 25,
2005, an order was entered requiring that plaintiff's firearms
and firearms purchaser identification card be returned to him.
On December 29, 2006, just five days shy of the second
anniversary of the police encounter at the root of this appeal,
plaintiff filed a three-count civil action that outlined his
grievances with defendants Department and Township of
Pennsville. The complaint did not seek remedies against any
individual police officers, the Prosecutor's Office, or the
County of Salem. After extensive discovery, defendants moved for
summary judgment, claiming good faith immunity in the handling
of plaintiff individually, as well as the seizure of plaintiff's
firearms and firearms purchaser identification card.
The Law Division granted defendants' motion, concluding
that "no reasonable juror could find in favor of the plaintiff"
on plaintiff's claim of the violation of his personal liberty by
the police on January 3, 2005. The court noted that the TCA,
N.J.S.A. 59:3-3, grants good faith immunity to public employees
5
We believe that in the absence of an action under the PDVA
(which would have required a motion in the Family Part) or the
pendency of a revocation proceeding under N.J.S.A. 2C:58-3(f)
(which would have required the stewardship of the Superior Court
in the county where the firearms purchaser identification card
was issued) there was no clear basis for the Criminal Part to
consider plaintiff's motion. Rather, a civil replevin action,
pursuant to N.J.S.A. 2B:50-1 to -5 and Rule 4:61-1, was the more
appropriate procedural vehicle in this case.
A-3742-08T1
7
and additionally that "there are no facts to support a finding
of bad faith on the part of the officers in investigating
[plaintiff]——the allegations that [plaintiff] was going to
commit suicide and having him scree[ned] to determine whether he
was——he posed a danger to himself or others." We agree.
The Law Division disposed of the property rights claim in
the same manner. That is, the court concluded that the seizure
and temporary retention of the weapons and firearms purchaser
identification card were nothing more than good faith mistakes
by the police who believed that the matter fell within the
purview of the PDVA, and that they were therefore entitled to
TCA immunity. Relying upon what it referred to as the community
caretaking function of police officers, the Law Division held
that because the responding police officers were acting "under
the need to protect [plaintiff's] and others' safety," the
defendants were not liable to plaintiff. Again, we agree.
On appeal, plaintiff raises one point for our
consideration:
POINT ONE: WHETHER ACTING UNDER COMMUNITY
CARETAKING/EXIGENT CIRCUMSTANCES OR UNDER
THE PREVENTION OF DOMESTIC VIOLENCE ACT
ABSOLVES DEFENDANTS OF CULPABILITY AS TO
PLAINTIFF'S CLAIMS RESULTING/OCCURRING ON
JANUARY 2, 2005.
A-3742-08T1
8
We are satisfied that plaintiff's argument lacks sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). Nevertheless, we add the following brief comments.
II.
We use the same standard as the Law Division to conduct our
de novo review of the motion for summary judgment. Chance v.
McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). Thus, we
must consider, as the trial court did, "'whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell
Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill,
supra, 142 N.J. at 536).
Police officers will not be held liable for their actions
if they act "in good faith in the execution or enforcement of
any law." N.J.S.A. 59:3-3. This immunity also applies to the
Department and to the Township. N.J.S.A. 59:2-2(b)("A public
entity is not liable for an injury from an act or omission of a
public employee where the public employee is not liable.");
Fielder v. Stonack, 141 N.J. 101, 118 (1995).
To pierce the shield of good faith immunity, "a plaintiff
must prove more than ordinary negligence." Dunlea v. Twp. of
Belleville, 349 N.J. Super. 506, 511 (App. Div.), certif.
denied, 174 N.J. 189 (2002). Rather, a plaintiff must prove
A-3742-08T1
9
recklessness. Id. at 512. "'Recklessness, unlike negligence,
requires a conscious choice of a course of action with knowledge
or a reason to know that it will create a serious danger to
others.'" Id. at 513-14 (quoting Schick v. Ferolito, 167 N.J.
7, 19-20 (2001)). Recklessness is characterized as "an extreme
departure from ordinary care, in a situation in which a high
degree of danger is apparent." Id. at 513. In distinguishing
between the elements of recklessness and negligence, the latter
"may consist of an intentional act done with knowledge that it
creates a risk of danger to others, but recklessness requires a
substantially higher risk. The quantum of the risk is the
important factor." Schick, supra, 167 N.J. at 19-20.
The evidence in this case does not establish that
defendants or their police officer employees acted recklessly at
any time. Rather, the evidence clearly shows that on January 3,
2005, police officers were performing a police activity under
emergent circumstances requiring quick action to protect the
public safety, and pursuant to a reasonable and good faith
belief that plaintiff might harm or kill himself. Moreover, the
A-3742-08T1
10
immunity provisions of N.J.S.A. 30:4-27.76 provide further
justification for the transportation of plaintiff to the
hospital's screening service to ensure that he received an
adequate mental health assessment. Accordingly, defendants are
entitled to good faith immunity for any alleged liberty
deprivations.
In like vein, we find immunity for the initial seizure of
plaintiff's weapons together with his firearms purchaser
identification card, as well as the subsequent transfer of those
same firearms to the Prosecutor's Office and later refusal
(without a court order) to return the property. The community
caretaking function of the police justified the initial police
intrusion into plaintiff's home. See Cady v. Dombrowski, 413
U.S. 433, 439-48, 93 S. Ct. 2523, 2527-31, 37 L. Ed. 2d 706,
713-18 (1973); State v. Bogan, 200 N.J. 61, 73-75 (2009); State
v. Diloreto, 180 N.J. 264, 276 (2004); State v. Garbin, 325 N.J.
Super. 521, 526-27 (App. Div. 1999), certif. denied, 164 N.J.
560 (2000). These attributes of good faith are fortified by the
police officers' perception that they were acting——albeit
erroneously——under the auspices of the PDVA. We are unpersuaded
6
"A law enforcement officer, screening service or short-term
care facility designated staff person or their respective
employers, acting in good faith pursuant to this act who takes
reasonable steps to assess, take custody of, detain or transport
an individual for the purposes of mental health assessment or
treatment is immune from civil and criminal liability." Id.
A-3742-08T1
11
by plaintiff's argument that defendants' mere imperfect fidelity
to the PDVA's procedures regarding handling of seized firearms
somehow excludes them from statutory immunity pursuant to the
TCA.
Affirmed.
Wednesday, June 02, 2010
Search and Seizure - Criminal Law Procedure- State v James (A-6160-08T4)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6160-08T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RALPH JAMES, SHELTON JAMES
and GREGORY O'NEAL,
Defendants-Respondents.
________________________________________________________________
Submitted February 1, 2010 - Decided March 25, 2010
Before Judges Carchman and Lihotz.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 08-05-1412.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for appellant
(Barbara A. Rosenkrans, Assistant
Prosecutor, of counsel and on the brief).
Yvonne Smith Segars, Public Defender,
attorney for respondent Shelton James
(Stefan Van Jura, Assistant Deputy Public
Defendant, of counsel and on the brief).
Lorane L. Posner, attorney for respondent
Gregory O'Neal.
Respondent Ralph James has not filed a brief.
PER CURIAM
By leave of court, the State appeals from an interlocutory
order of the Law Division granting defendants Shelton James,
Ralph James and Gregory O'Neal's motion to suppress evidence
seized from a vehicle driven by O'Neal as a result of an
allegedly unlawful search. The evidence supported an indictment
against defendants charging them with third-degree possession of
heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin
with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and
possession of heroin with the intent to distribute within 1,000
feet of a school, N.J.S.A. 2C:35-7. We reverse.
These are the facts adduced at the motion to suppress. On
January 2, 2008, New Jersey State Trooper Paul Kochis
interviewed a confidential informant (CI), who, in the Trooper's
presence, allegedly contacted an individual identified as "Rock"
and set up the purchase of two bricks of heroin.1 The
transaction was scheduled for a location on Schley Street in
Newark, and Kochis, together with three other officers,
proceeded to the location where they observed the CI's vehicle
parked in front of 290 Schley Street. The officers parked their
vehicle approximately three or four car-lengths away.
1
A brick consists of 50 "decks" or glassine packets of heroin.
A-6160-08T4
2
Five to ten minutes later, at approximately 1:30 p.m., a
black Buick pulled up and parked behind the CI's vehicle in
front of 290 Schley Street. O'Neal was driving while Ralph
James and Shelton James were passengers. Kochis testified that
he was in an elevated SUV-type vehicle, used binoculars to
enhance his vision and had an unobstructed view of both the CI's
car and the black Buick.
Kochis saw the defendant O'Neal reach into the ceiling
upholstery of his car and pull out two packages that appeared to
the trooper to be glassine envelopes of heroin packaged as
bricks. O'Neal then looked in the direction of the police
surveillance vehicle and appeared "startled, just surprised."
O'Neal immediately drove away.
Without losing sight of O'Neal's car, the officers followed
O'Neal through several streets in Newark until they stopped his
car in a parking lot at a McDonald's restaurant located at the
intersection of Route 22 and Long Avenue in Hillside. Kochis
waited for O'Neal's car to clear the heavily congested
residential area around Schley Street before activating his
car's lights and sirens. All three followed the officers'
orders to exit the car and then were placed in handcuffs.
Kochis looked into the car and saw some suspected heroin on
the front passenger side floor. Kochis then entered the car and
A-6160-08T4
3
seized what turned out to be 49 decks of heroin. He then
reached into the ceiling upholstery of the car and seized
another four bricks of heroin.
Prior to this investigation, Kochis had arrested the CI for
drug offenses and registered the CI with the New Jersey State
Police. Before this incident, Kochis used the CI several times
with the information leading to arrests.2 Kochis testified that
the CI provided information with the understanding that he would
receive leniency on his pending criminal matter.
In her opinion suppressing the evidence, the judge found
Kochis to be credible but concluded that there was no probable
cause to search and detain defendants. She determined that
there were no facts that the CI was credible or reliable and
stated that "[t]he tip itself does not provide any intimate
details of the criminal operation that would be hard to know."
She also noted the absence of details as to Rock and the storage
facility in the car as well as the fact that Kochis did not hear
the CI's conversation with Rock. As the judge said:
The trooper did not overhear anything
that Rock allegedly said when dialed by the
confidential informant. The confidential
informant did not give . . . . them Rock's
cell phone numbers so that they could
2
On cross-examination, he indicated that he could not identify
the arrests.
A-6160-08T4
4
conduct any further investigation to
corroborate the tip.
How did the troopers know who the
confidential informant called? How do they
know that he did not dial information or
dial for a weather forecast? Based on the
testimony the answer is they could not know
and did not know.
Trooper Kochis didn't testify to any
fact that would indicate the informant's
base of knowledge of the criminal event.
For example, the informant did not indicate
that he or she had seen Rock selling nor was
he asked or did he or she volunteer that he
or she had previously purchased heroin from
Rock.
....
[F]actual information that was related to
Trooper Kochis by the confidential
informant does not confirm any personal
knowledge of the criminal or the criminal
enterprise. Therefore, in the instant case
in a totality of the circumstances analysis
without any showing of the informant having
personal knowledge of intimate details of
the criminal operation [and] without any
factual basis for the court to conclude
that [the] informant is credible and
reliable, this court finds there was no
probable cause based on the informant's tip
that would support the seizure of the
defendants and the subsequent search of the
automobile . . . .
The judge further found that there were no exigent
circumstances warranting the police entry into the vehicle to
seize the heroin absent a search warrant.
On appeal, the State argues:
A-6160-08T4
5
POINT I:
THE TRIAL COURT UNJUSTIFIABLY REQUIRED THE
STATE TO MEET AN ONEROUS BURDEN OF PROOF BY
REQUIRING A RELIABLE TIP FROM A CONFIDENTIAL
INFORMANT TO SHOW "INTIMATE DETAILS OF THE
CRIMINAL OPERATION." PROBABLE CAUSE EXISTED
WHEN THE INFORMANT'S TIP WAS CORROBORATED BY
THE TROOPER'S OBSERVATION OF ONE DEFENDANT
RETRIEVE HEROIN FROM A SECRET AREA IN THE
CAR IN THE PRESENCE OF THE TWO OTHER
DEFENDANTS AND A DEFENSE WITNESS PLACING THE
DEFENDANTS IN THE AREA AT THE TIME OF THE
SALE.
POINT II:
THE SEARCH OF THE DEFENDANTS' CAR FELL
WITHIN THE PLAIN VIEW AND AUTOMOBILE
EXCEPTIONS TO THE WARRANT REQUIREMENT. THE
HEROIN WAS IN PLAIN VIEW ON THE CAR'S FLOOR
AND IN THE CAR'S STASH AREA. EXIGENT
CIRCUMSTANCES WERE PRESENT BECAUSE IT WAS
NOT FEASIBLE TO GUARD THE CAR, STOPPED IN A
PARKING LOT OF A FAST FOOD RESTAURANT WITH A
STEADY STREAM OF CUSTOMERS, WHILE OFFICERS
TRIED TO SECURE A SEARCH WARRANT.
A. The police saw the drugs in the
defendants' car while lawfully in the
area from where they made their
observations.
B. Exigent circumstances existed
because anyone could have gained access
to the car stopped in the parking lot
of a fast-food restaurant with a steady
stream of customers.
Our standard of review of search and seizure appeals is
simply stated.
[A]n appellate court reviewing a motion to
suppress must uphold the factual findings
underlying the trial court's decision so
A-6160-08T4
6
long as those findings are supported by
sufficient credible evidence in the record.
. . . [A] trial court's findings should be
disturbed only if they are so clearly
mistaken that the interests of justice
demand intervention and correction.
[State v. Robinson,
200 N.J. 1, 15 (2009)
(quoting State v. Elders,
192 N.J. 224, 243-
44 (2007)).]
We will intervene, however, where the legal conclusions
based on those factual findings are in error. State v. Elders,
192 N.J. 224, 252 (2007) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan,
140 N.J. 366, 378 (1991)).
The focal point of the motion judge's decision was that the
CI, whose information prompted the investigation and ultimately
the search, was not established to be a reliable basis so as to
establish probable cause.
Although we later consider whether consideration of the
CI's reliability should have prompted suppression of the search,
we briefly address the relevant factors for determining
reliability. The reliability of a CI must be considered by
indicia of his veracity and his basis of knowledge. State v.
Keyes,
184 N.J. 541, 555-56 (2005). Veracity and basis of
information are two factors in determining the totality of the
circumstance. State v Zutic,
155 N.J. 103, 110-11 (1998). In
determining veracity, a court must consider past reliability,
while basis of knowledge may be premised on the level of detail
A-6160-08T4
7
and information provided by the CI. Keyes, supra,
184 N.J. at
555-56.
Here the CI's veracity was established by Kochis'
confirmation that the CI's past information had resulted in
three or four arrests. While Kochis later contradicted that
information by indicating that he did not know of any arrests,
that fact does not end the inquiry. In terms of the CI's basis
of knowledge, the CI indicated that he had purchased from Rock
in the past, and on this occasion, he was able to establish both
the time and place of Rock's arrival as well as the presence of
heroin in the vehicle.
Our difficulty with the judge's analysis is her over-
reliance and concern on the bona fides of the CI. The flaw in
the reasoning is that the CI's tip and information did not
create the probable cause; simply stated, it brought the
officers to the scene. The judge found the officers to be
credible, and while the CI's reliability based on past
information may not have been established, his reliability and
veracity as to the present information was confirmed by the
events that transpired at the scene. The CI provided the
previews of what ultimately became the main event. What the
officers observed on a legitimate stakeout, prompted by the CI's
information or at best, a tip, established at least reasonable
A-6160-08T4
8
suspicion if not probable cause to proceed further in the
investigation ultimately leading to the arrest of defendants.
Kochis went to Schley Street with information of a pending
sale of heroin to the CI. Shortly after arriving, Kochis saw a
Buick pull up behind the informant's car and then saw O'Neal
reach into a storage area cut from the Buick's roof upholstery
and take out bound, glassine envelopes, commonly used to package
heroin. He observed what he believed to be the elements a drug
transaction. Later, after stopping the car and detaining the
occupants, Kochis saw glassine envelopes lying on the floor of
the car. The trooper made a "practical, common-sense decision
. . . given all the circumstances [that] there is a fair
probability that contraband or evidence" of a drug crime would
be found in the car and that the defendants committed the crime.
State v. Johnson,
171 N.J. 192, 214 (2002).
The trial judge overlooked Kochis's observation of the
packaged heroin that O'Neal took from the roof upholstery of the
car while Shelton and Ralph James were present. Although she
mentioned Kochis's observations in her summary of the testimony,
she failed to include any analysis of those observations in her
findings of fact. Kochis never contradicted himself when
testifying about what he saw, and Officer Spivey's testimony
A-6160-08T4
9
corroborated Kochis's testimony as to the time of day and length
of time that defendants were on Schley Street.
Applying a totality of the circumstances analysis, Kochis'
direct observations, combined with the information provided by
the CI, support a finding of, at a minimum, reasonable suspicion
to stop the vehicle and ultimately, probable cause to arrest
defendants and search the vehicle. Courts must look at the
totality of the circumstances when determining whether probable
cause exists in a warrantless search and seizure case. State v.
O'Neal,
190 N.J. 601, 612 (2007). An informant whose inherent
reliability has not been shown can nevertheless be relied upon
where the veracity of the informant's information is bolstered
by the totality of the circumstances, which include the
observations of the police during an investigation. State v.
Zapata,
297 N.J. Super. 160, 172 (App. Div. 1997) (citing State
v. Probasco,
220 N.J. Super. 355, 358 (App. Div. 1987), certif.
denied,
117 N.J. 72 (1989)), certif. denied,
156 N.J. 405
(1998). Kochis' observations of the defendants' conduct on
Schley Street, including the presence of a stash area in the
car, corroborated the informant's information about a pending
drug sale.
As defendants concede, the trial judge, in her decision,
makes little mention of the events that transpired when Kochis
A-6160-08T4
10
observed O'Neal reach up in the vehicle and extract what
appeared to be contraband. While they suggest that such
findings were implicit, we disagree. We find nothing in the
judge's findings relevant to a precipitating basis for the
officers following the vehicle and ultimately stopping it in the
parking lot of a fast-food restaurant.
This case is similar to State v. Birkenmeier,
185 N.J. 552,
555-56 (2006), where police's observations corroborated the
confidential informant's information that the defendant, at a
specified time, would make a delivery of drugs that would be
carried in a laundry bag using a particular make and model of
car. The police then pulled over the defendant's car, saw a bag
on the passenger seat and smelled marijuana emanating from the
car. Id. at 556-57. The Court held that the police's
observations corroborating the tip and the smell of marijuana
gave to a reasonable suspicion to stop and ultimately, probable
Id. at 561-
cause to arrest the defendant and search the car.
63.
In State v. Williams,
364 N.J. Super. 23, 37 (App. Div.
2003), there was less evidence corroborating a confidential
informant's tip than in this case, and we held that the evidence
generated a reasonable ground of suspicion justifying an
In Williams, an informant
investigatory stop of the defendant.
A-6160-08T4
11
arranged a drug buy with a man named Andre. An officer
accompanied the informant to the train station where she used a
public telephone to call Andre, "confirmed that she was known to
him and placed an order for delivery to the train station by him
Id. at 28. The officer
of two twenty-dollar 'pieces.'"
overheard this conversation.
Within fifteen minutes, a green Mazda arrived at the train
station and parked. The informant identified the passenger of
the car as Andre. No other information, such as a description
of Andre, his clothes, his mode of transportation or the
presence of companions, corroborated the identification. Ibid.
The defendant exited the car, walked and looked around, but did
not engage in any suspicious activity before re-entering the
car. As the driver sought to drive off, the police boxed the
car with their own vehicles and then detained the defendant
Williams and the driver. The driver consented to the search of
the car, where the police recovered two foil packets of cocaine.
Id. at 28-29.
The police arrested both men.
We held that the informant's on-scene identification of the
defendant, along with the fact that the officer overheard the
informant's conversation with the defendant proposing a drug
transaction, sufficiently met the reasonableness standard
required for an investigatory stop. We reached the conclusion
A-6160-08T4
12
even though the informant was seeking favorable treatment on a
drug matter of her own. Id. at 37.
As in Williams, because Kochis overheard the conversation
setting up the drug sale, "the imminence of criminal conduct was
not substantially in question." Ibid. Additionally, like the
informant in Williams, the CI's veracity in this case was
increased because he expected leniency regarding his pending
charges. It is "inconceivable" that the CI would have
"consciously misidentified" the defendant, when the informant
knew that Kochis would not assist him with his pending charge if
We recognize that both Birkenmeier and Williams are
he lied.
reasonable suspicion cases, yet here, Kochis' observations of
what appeared to be part of a drug transaction, provided
stronger indicia of criminal activity.
Following the apprehension of the vehicle in the restaurant
parking lot, the officers observed what appeared to be heroin on
the front passenger's seat and observed 49 bags of heroin on the
floor of the vehicle. They then arrested defendants, entered
the vehicle and conducted a search, discovering another four
bricks of heroin. The judge concluded that a search warrant was
necessary, focusing on the lack of exigent circumstances.
The New Jersey Supreme Court has made it clear that under
Article I, para. 7 of the State Constitution, a separate finding
A-6160-08T4
13
of exigent circumstances is required in addition to the
existence of probable cause for the lawful search of an
State v. Pena-Flores,
198 N.J. 6 (2009); State v.
automobile.
Cooke,
163 N.J. 657, 670-71 (2000).
The court reaffirmed the automobile exception to the
warrant requirement, including the requirement that the State
prove exigent circumstances to justify a warrantless search
pursuant to that exception. In Pena-Flores, supra, the Court
held:
[I]n accordance with "our unwavering
precedent," the warrantless search of an
automobile in New Jersey is permissible
where (1) the stop is unexpected; (2) the
police have probable cause to believe that
the vehicle contains contraband or evidence
of a crime; and (3) exigent circumstances
exist under which it is impracticable to
obtain a warrant. The notion of exigency
encompasses far broader considerations than
the mere mobility of the vehicle.
[
198 N.J. at 28 (citations omitted).]
Whether or not exigency exists to justify a warrantless
search is determined on a case-by-case basis in light of "the
totality of circumstances," but the critical issues for
consideration remain "officer safety and the preservation of
evidence." Id. at 28-29. Explaining further, the Court
detailed a non-exclusive set of circumstances for consideration
in determining exigency, including:
A-6160-08T4
14
for example, the time of day; the location
of the stop; the nature of the neighborhood;
the unfolding of the events establishing
probable cause; the ratio of officers to
suspects; the existence of confederates who
know the location of the car and could
remove it or its contents; whether the
arrest was observed by passersby who could
tamper with the car or its contents; whether
it would be safe to leave the car unguarded
and, if not, whether the delay that would be
caused by obtaining a warrant would place
the officers or the evidence at risk. As we
have previously noted, "[f]or purposes of a
warrantless search, exigent circumstances
are present when law enforcement officers do
not have sufficient time to obtain any form
of warrant."
[Id. at 29-30 (citations omitted).]
While the trial judge found no exigency, we disagree.
There were three defendants (and four officers in one vehicle)
present at the scene in a McDonald's Restaurant parking lot
during lunch hour at 1:30 in the afternoon. The restaurant is
located on Route 22, a heavily trafficked thoroughfare, and the
circumstances of the stop, location and persons in the area are
fraught with dangers, both known and unknown. The stop resulted
from a chase, albeit not at high speeds but through an urban
area, after police observed defendants in the initial stages of
participate in a drug transaction. We have little doubt that
the totality of these circumstances create an exigency
envisioned by the Court in Pena-Flores. The circumstances here
A-6160-08T4
15
were too dynamic to conclude otherwise. We are satisfied that
the warrantless search of the vehicle was proper.
We conclude that the trial judge erred in granting the
motion to suppress.
Reversed.
A-6160-08T4
16
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6160-08T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
RALPH JAMES, SHELTON JAMES
and GREGORY O'NEAL,
Defendants-Respondents.
________________________________________________________________
Submitted February 1, 2010 - Decided March 25, 2010
Before Judges Carchman and Lihotz.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 08-05-1412.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for appellant
(Barbara A. Rosenkrans, Assistant
Prosecutor, of counsel and on the brief).
Yvonne Smith Segars, Public Defender,
attorney for respondent Shelton James
(Stefan Van Jura, Assistant Deputy Public
Defendant, of counsel and on the brief).
Lorane L. Posner, attorney for respondent
Gregory O'Neal.
Respondent Ralph James has not filed a brief.
PER CURIAM
By leave of court, the State appeals from an interlocutory
order of the Law Division granting defendants Shelton James,
Ralph James and Gregory O'Neal's motion to suppress evidence
seized from a vehicle driven by O'Neal as a result of an
allegedly unlawful search. The evidence supported an indictment
against defendants charging them with third-degree possession of
heroin, N.J.S.A. 2C:35-10a(1); third-degree possession of heroin
with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); and
possession of heroin with the intent to distribute within 1,000
feet of a school, N.J.S.A. 2C:35-7. We reverse.
These are the facts adduced at the motion to suppress. On
January 2, 2008, New Jersey State Trooper Paul Kochis
interviewed a confidential informant (CI), who, in the Trooper's
presence, allegedly contacted an individual identified as "Rock"
and set up the purchase of two bricks of heroin.1 The
transaction was scheduled for a location on Schley Street in
Newark, and Kochis, together with three other officers,
proceeded to the location where they observed the CI's vehicle
parked in front of 290 Schley Street. The officers parked their
vehicle approximately three or four car-lengths away.
1
A brick consists of 50 "decks" or glassine packets of heroin.
A-6160-08T4
2
Five to ten minutes later, at approximately 1:30 p.m., a
black Buick pulled up and parked behind the CI's vehicle in
front of 290 Schley Street. O'Neal was driving while Ralph
James and Shelton James were passengers. Kochis testified that
he was in an elevated SUV-type vehicle, used binoculars to
enhance his vision and had an unobstructed view of both the CI's
car and the black Buick.
Kochis saw the defendant O'Neal reach into the ceiling
upholstery of his car and pull out two packages that appeared to
the trooper to be glassine envelopes of heroin packaged as
bricks. O'Neal then looked in the direction of the police
surveillance vehicle and appeared "startled, just surprised."
O'Neal immediately drove away.
Without losing sight of O'Neal's car, the officers followed
O'Neal through several streets in Newark until they stopped his
car in a parking lot at a McDonald's restaurant located at the
intersection of Route 22 and Long Avenue in Hillside. Kochis
waited for O'Neal's car to clear the heavily congested
residential area around Schley Street before activating his
car's lights and sirens. All three followed the officers'
orders to exit the car and then were placed in handcuffs.
Kochis looked into the car and saw some suspected heroin on
the front passenger side floor. Kochis then entered the car and
A-6160-08T4
3
seized what turned out to be 49 decks of heroin. He then
reached into the ceiling upholstery of the car and seized
another four bricks of heroin.
Prior to this investigation, Kochis had arrested the CI for
drug offenses and registered the CI with the New Jersey State
Police. Before this incident, Kochis used the CI several times
with the information leading to arrests.2 Kochis testified that
the CI provided information with the understanding that he would
receive leniency on his pending criminal matter.
In her opinion suppressing the evidence, the judge found
Kochis to be credible but concluded that there was no probable
cause to search and detain defendants. She determined that
there were no facts that the CI was credible or reliable and
stated that "[t]he tip itself does not provide any intimate
details of the criminal operation that would be hard to know."
She also noted the absence of details as to Rock and the storage
facility in the car as well as the fact that Kochis did not hear
the CI's conversation with Rock. As the judge said:
The trooper did not overhear anything
that Rock allegedly said when dialed by the
confidential informant. The confidential
informant did not give . . . . them Rock's
cell phone numbers so that they could
2
On cross-examination, he indicated that he could not identify
the arrests.
A-6160-08T4
4
conduct any further investigation to
corroborate the tip.
How did the troopers know who the
confidential informant called? How do they
know that he did not dial information or
dial for a weather forecast? Based on the
testimony the answer is they could not know
and did not know.
Trooper Kochis didn't testify to any
fact that would indicate the informant's
base of knowledge of the criminal event.
For example, the informant did not indicate
that he or she had seen Rock selling nor was
he asked or did he or she volunteer that he
or she had previously purchased heroin from
Rock.
....
[F]actual information that was related to
Trooper Kochis by the confidential
informant does not confirm any personal
knowledge of the criminal or the criminal
enterprise. Therefore, in the instant case
in a totality of the circumstances analysis
without any showing of the informant having
personal knowledge of intimate details of
the criminal operation [and] without any
factual basis for the court to conclude
that [the] informant is credible and
reliable, this court finds there was no
probable cause based on the informant's tip
that would support the seizure of the
defendants and the subsequent search of the
automobile . . . .
The judge further found that there were no exigent
circumstances warranting the police entry into the vehicle to
seize the heroin absent a search warrant.
On appeal, the State argues:
A-6160-08T4
5
POINT I:
THE TRIAL COURT UNJUSTIFIABLY REQUIRED THE
STATE TO MEET AN ONEROUS BURDEN OF PROOF BY
REQUIRING A RELIABLE TIP FROM A CONFIDENTIAL
INFORMANT TO SHOW "INTIMATE DETAILS OF THE
CRIMINAL OPERATION." PROBABLE CAUSE EXISTED
WHEN THE INFORMANT'S TIP WAS CORROBORATED BY
THE TROOPER'S OBSERVATION OF ONE DEFENDANT
RETRIEVE HEROIN FROM A SECRET AREA IN THE
CAR IN THE PRESENCE OF THE TWO OTHER
DEFENDANTS AND A DEFENSE WITNESS PLACING THE
DEFENDANTS IN THE AREA AT THE TIME OF THE
SALE.
POINT II:
THE SEARCH OF THE DEFENDANTS' CAR FELL
WITHIN THE PLAIN VIEW AND AUTOMOBILE
EXCEPTIONS TO THE WARRANT REQUIREMENT. THE
HEROIN WAS IN PLAIN VIEW ON THE CAR'S FLOOR
AND IN THE CAR'S STASH AREA. EXIGENT
CIRCUMSTANCES WERE PRESENT BECAUSE IT WAS
NOT FEASIBLE TO GUARD THE CAR, STOPPED IN A
PARKING LOT OF A FAST FOOD RESTAURANT WITH A
STEADY STREAM OF CUSTOMERS, WHILE OFFICERS
TRIED TO SECURE A SEARCH WARRANT.
A. The police saw the drugs in the
defendants' car while lawfully in the
area from where they made their
observations.
B. Exigent circumstances existed
because anyone could have gained access
to the car stopped in the parking lot
of a fast-food restaurant with a steady
stream of customers.
Our standard of review of search and seizure appeals is
simply stated.
[A]n appellate court reviewing a motion to
suppress must uphold the factual findings
underlying the trial court's decision so
A-6160-08T4
6
long as those findings are supported by
sufficient credible evidence in the record.
. . . [A] trial court's findings should be
disturbed only if they are so clearly
mistaken that the interests of justice
demand intervention and correction.
[State v. Robinson,
200 N.J. 1, 15 (2009)
(quoting State v. Elders,
192 N.J. 224, 243-
44 (2007)).]
We will intervene, however, where the legal conclusions
based on those factual findings are in error. State v. Elders,
192 N.J. 224, 252 (2007) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan,
140 N.J. 366, 378 (1991)).
The focal point of the motion judge's decision was that the
CI, whose information prompted the investigation and ultimately
the search, was not established to be a reliable basis so as to
establish probable cause.
Although we later consider whether consideration of the
CI's reliability should have prompted suppression of the search,
we briefly address the relevant factors for determining
reliability. The reliability of a CI must be considered by
indicia of his veracity and his basis of knowledge. State v.
Keyes,
184 N.J. 541, 555-56 (2005). Veracity and basis of
information are two factors in determining the totality of the
circumstance. State v Zutic,
155 N.J. 103, 110-11 (1998). In
determining veracity, a court must consider past reliability,
while basis of knowledge may be premised on the level of detail
A-6160-08T4
7
and information provided by the CI. Keyes, supra,
184 N.J. at
555-56.
Here the CI's veracity was established by Kochis'
confirmation that the CI's past information had resulted in
three or four arrests. While Kochis later contradicted that
information by indicating that he did not know of any arrests,
that fact does not end the inquiry. In terms of the CI's basis
of knowledge, the CI indicated that he had purchased from Rock
in the past, and on this occasion, he was able to establish both
the time and place of Rock's arrival as well as the presence of
heroin in the vehicle.
Our difficulty with the judge's analysis is her over-
reliance and concern on the bona fides of the CI. The flaw in
the reasoning is that the CI's tip and information did not
create the probable cause; simply stated, it brought the
officers to the scene. The judge found the officers to be
credible, and while the CI's reliability based on past
information may not have been established, his reliability and
veracity as to the present information was confirmed by the
events that transpired at the scene. The CI provided the
previews of what ultimately became the main event. What the
officers observed on a legitimate stakeout, prompted by the CI's
information or at best, a tip, established at least reasonable
A-6160-08T4
8
suspicion if not probable cause to proceed further in the
investigation ultimately leading to the arrest of defendants.
Kochis went to Schley Street with information of a pending
sale of heroin to the CI. Shortly after arriving, Kochis saw a
Buick pull up behind the informant's car and then saw O'Neal
reach into a storage area cut from the Buick's roof upholstery
and take out bound, glassine envelopes, commonly used to package
heroin. He observed what he believed to be the elements a drug
transaction. Later, after stopping the car and detaining the
occupants, Kochis saw glassine envelopes lying on the floor of
the car. The trooper made a "practical, common-sense decision
. . . given all the circumstances [that] there is a fair
probability that contraband or evidence" of a drug crime would
be found in the car and that the defendants committed the crime.
State v. Johnson,
171 N.J. 192, 214 (2002).
The trial judge overlooked Kochis's observation of the
packaged heroin that O'Neal took from the roof upholstery of the
car while Shelton and Ralph James were present. Although she
mentioned Kochis's observations in her summary of the testimony,
she failed to include any analysis of those observations in her
findings of fact. Kochis never contradicted himself when
testifying about what he saw, and Officer Spivey's testimony
A-6160-08T4
9
corroborated Kochis's testimony as to the time of day and length
of time that defendants were on Schley Street.
Applying a totality of the circumstances analysis, Kochis'
direct observations, combined with the information provided by
the CI, support a finding of, at a minimum, reasonable suspicion
to stop the vehicle and ultimately, probable cause to arrest
defendants and search the vehicle. Courts must look at the
totality of the circumstances when determining whether probable
cause exists in a warrantless search and seizure case. State v.
O'Neal,
190 N.J. 601, 612 (2007). An informant whose inherent
reliability has not been shown can nevertheless be relied upon
where the veracity of the informant's information is bolstered
by the totality of the circumstances, which include the
observations of the police during an investigation. State v.
Zapata,
297 N.J. Super. 160, 172 (App. Div. 1997) (citing State
v. Probasco,
220 N.J. Super. 355, 358 (App. Div. 1987), certif.
denied,
117 N.J. 72 (1989)), certif. denied,
156 N.J. 405
(1998). Kochis' observations of the defendants' conduct on
Schley Street, including the presence of a stash area in the
car, corroborated the informant's information about a pending
drug sale.
As defendants concede, the trial judge, in her decision,
makes little mention of the events that transpired when Kochis
A-6160-08T4
10
observed O'Neal reach up in the vehicle and extract what
appeared to be contraband. While they suggest that such
findings were implicit, we disagree. We find nothing in the
judge's findings relevant to a precipitating basis for the
officers following the vehicle and ultimately stopping it in the
parking lot of a fast-food restaurant.
This case is similar to State v. Birkenmeier,
185 N.J. 552,
555-56 (2006), where police's observations corroborated the
confidential informant's information that the defendant, at a
specified time, would make a delivery of drugs that would be
carried in a laundry bag using a particular make and model of
car. The police then pulled over the defendant's car, saw a bag
on the passenger seat and smelled marijuana emanating from the
car. Id. at 556-57. The Court held that the police's
observations corroborating the tip and the smell of marijuana
gave to a reasonable suspicion to stop and ultimately, probable
Id. at 561-
cause to arrest the defendant and search the car.
63.
In State v. Williams,
364 N.J. Super. 23, 37 (App. Div.
2003), there was less evidence corroborating a confidential
informant's tip than in this case, and we held that the evidence
generated a reasonable ground of suspicion justifying an
In Williams, an informant
investigatory stop of the defendant.
A-6160-08T4
11
arranged a drug buy with a man named Andre. An officer
accompanied the informant to the train station where she used a
public telephone to call Andre, "confirmed that she was known to
him and placed an order for delivery to the train station by him
Id. at 28. The officer
of two twenty-dollar 'pieces.'"
overheard this conversation.
Within fifteen minutes, a green Mazda arrived at the train
station and parked. The informant identified the passenger of
the car as Andre. No other information, such as a description
of Andre, his clothes, his mode of transportation or the
presence of companions, corroborated the identification. Ibid.
The defendant exited the car, walked and looked around, but did
not engage in any suspicious activity before re-entering the
car. As the driver sought to drive off, the police boxed the
car with their own vehicles and then detained the defendant
Williams and the driver. The driver consented to the search of
the car, where the police recovered two foil packets of cocaine.
Id. at 28-29.
The police arrested both men.
We held that the informant's on-scene identification of the
defendant, along with the fact that the officer overheard the
informant's conversation with the defendant proposing a drug
transaction, sufficiently met the reasonableness standard
required for an investigatory stop. We reached the conclusion
A-6160-08T4
12
even though the informant was seeking favorable treatment on a
drug matter of her own. Id. at 37.
As in Williams, because Kochis overheard the conversation
setting up the drug sale, "the imminence of criminal conduct was
not substantially in question." Ibid. Additionally, like the
informant in Williams, the CI's veracity in this case was
increased because he expected leniency regarding his pending
charges. It is "inconceivable" that the CI would have
"consciously misidentified" the defendant, when the informant
knew that Kochis would not assist him with his pending charge if
We recognize that both Birkenmeier and Williams are
he lied.
reasonable suspicion cases, yet here, Kochis' observations of
what appeared to be part of a drug transaction, provided
stronger indicia of criminal activity.
Following the apprehension of the vehicle in the restaurant
parking lot, the officers observed what appeared to be heroin on
the front passenger's seat and observed 49 bags of heroin on the
floor of the vehicle. They then arrested defendants, entered
the vehicle and conducted a search, discovering another four
bricks of heroin. The judge concluded that a search warrant was
necessary, focusing on the lack of exigent circumstances.
The New Jersey Supreme Court has made it clear that under
Article I, para. 7 of the State Constitution, a separate finding
A-6160-08T4
13
of exigent circumstances is required in addition to the
existence of probable cause for the lawful search of an
State v. Pena-Flores,
198 N.J. 6 (2009); State v.
automobile.
Cooke,
163 N.J. 657, 670-71 (2000).
The court reaffirmed the automobile exception to the
warrant requirement, including the requirement that the State
prove exigent circumstances to justify a warrantless search
pursuant to that exception. In Pena-Flores, supra, the Court
held:
[I]n accordance with "our unwavering
precedent," the warrantless search of an
automobile in New Jersey is permissible
where (1) the stop is unexpected; (2) the
police have probable cause to believe that
the vehicle contains contraband or evidence
of a crime; and (3) exigent circumstances
exist under which it is impracticable to
obtain a warrant. The notion of exigency
encompasses far broader considerations than
the mere mobility of the vehicle.
[
198 N.J. at 28 (citations omitted).]
Whether or not exigency exists to justify a warrantless
search is determined on a case-by-case basis in light of "the
totality of circumstances," but the critical issues for
consideration remain "officer safety and the preservation of
evidence." Id. at 28-29. Explaining further, the Court
detailed a non-exclusive set of circumstances for consideration
in determining exigency, including:
A-6160-08T4
14
for example, the time of day; the location
of the stop; the nature of the neighborhood;
the unfolding of the events establishing
probable cause; the ratio of officers to
suspects; the existence of confederates who
know the location of the car and could
remove it or its contents; whether the
arrest was observed by passersby who could
tamper with the car or its contents; whether
it would be safe to leave the car unguarded
and, if not, whether the delay that would be
caused by obtaining a warrant would place
the officers or the evidence at risk. As we
have previously noted, "[f]or purposes of a
warrantless search, exigent circumstances
are present when law enforcement officers do
not have sufficient time to obtain any form
of warrant."
[Id. at 29-30 (citations omitted).]
While the trial judge found no exigency, we disagree.
There were three defendants (and four officers in one vehicle)
present at the scene in a McDonald's Restaurant parking lot
during lunch hour at 1:30 in the afternoon. The restaurant is
located on Route 22, a heavily trafficked thoroughfare, and the
circumstances of the stop, location and persons in the area are
fraught with dangers, both known and unknown. The stop resulted
from a chase, albeit not at high speeds but through an urban
area, after police observed defendants in the initial stages of
participate in a drug transaction. We have little doubt that
the totality of these circumstances create an exigency
envisioned by the Court in Pena-Flores. The circumstances here
A-6160-08T4
15
were too dynamic to conclude otherwise. We are satisfied that
the warrantless search of the vehicle was proper.
We conclude that the trial judge erred in granting the
motion to suppress.
Reversed.
A-6160-08T4
16
NJ Division of Youth and Family Services v. C.M. (A-74-08)
New Jersey Division of Youth and Family Services v. C.M. (A-74-08) 6-1-10
The judgment of the trial court terminating C.M.’s
parental rights is vacated. Defendant C.M. did not
endanger his child’s safety, health or development, he
was willing to provide a safe and stable home for the
child, DYFS failed to make reasonable efforts to
provide services to help C.M. correct the
circumstances that led to his child’s placement
outside the home, the trial court did not consider, in
any substantive manner, alternatives to termination of
parental rights, and there is no basis in the record
to conclude that termination of C.M.’s parental rights
to the child will not do more harm than good. In
these circumstances, severing C.M.’s ties to his son
constituted a gross and unwarranted abuse of the
State’s extraordinary power over its citi
The judgment of the trial court terminating C.M.’s
parental rights is vacated. Defendant C.M. did not
endanger his child’s safety, health or development, he
was willing to provide a safe and stable home for the
child, DYFS failed to make reasonable efforts to
provide services to help C.M. correct the
circumstances that led to his child’s placement
outside the home, the trial court did not consider, in
any substantive manner, alternatives to termination of
parental rights, and there is no basis in the record
to conclude that termination of C.M.’s parental rights
to the child will not do more harm than good. In
these circumstances, severing C.M.’s ties to his son
constituted a gross and unwarranted abuse of the
State’s extraordinary power over its citi
Abandoned Bag Permits Search. State v. Carvajal 202 NJ 214 (2010)
State v. Pablo Carvajal (A-5-09) 6-2-10
The State satisfied its burden of proving by a
preponderance of the evidence that the duffel bag was
abandoned. Carvajal denied having any ownership or
possessory interest in the bag, and the police
attempted to identify other potential owners.
Carvajal therefore had no standing to challenge the
warrantless search of the bag.
The State satisfied its burden of proving by a
preponderance of the evidence that the duffel bag was
abandoned. Carvajal denied having any ownership or
possessory interest in the bag, and the police
attempted to identify other potential owners.
Carvajal therefore had no standing to challenge the
warrantless search of the bag.
ALBIN, J., writing for a unanimous Court.
In State v. Johnson, 193 N.J. 528 (2008), the Court held that a criminal defendant has no standing to challenge the search or seizure of "abandoned" property. In this appeal, the Court applies and adapts the standards enunciated in Johnson to the case of an unclaimed duffel bag left on a bus.
A confidential informant notified a New Jersey State Police Trooper that a Hispanic male in his late twenties would be "carrying a large quantity of narcotics in his luggage" on a bus traveling from Miami to New York, with a scheduled stop in Union City, New Jersey. The informant described the drug courier's hair style and clothes. The trooper gave this information to the Union City Police Department, which set up surveillance. When the bus arrived in Union City, defendant Pablo Carvajal, who fit the informant's description, stepped off the bus. As other passengers exited and removed their luggage, Detective Laurencio asked Carvajal if he would be willing to answer some questions, and he replied, "Yes." Carvajal explained that he was traveling for business purposes and had no luggage or change of clothes. He stated that he intended to buy wholesale clothing in New York and return to Florida in a few days. When asked if he was carrying any money for business, Carvajal pulled a Washington Mutual bank card out of a small yellow envelope. Detective Laurencio saw a Florida driver's license inside the envelope and asked to see it. Carvajal showed him the license, on which appeared the name Pablo Carvajal. In responding to questions, Carvajal stuttered and appeared to be nervous and evasive.
The bus driver told the detective that the passengers had boarding passes and those who checked luggage would have a claim ticket. Detective Laurencio asked Carvajal for his boarding pass. He produced one with another name on it and said, "That was a guy on the bus that gave me the boarding pass but he left already." Carvajal stated that he did not have his own boarding pass. Detective Laurencio then entered the bus. He told the passengers that he needed to verify their luggage by checking their claim tickets. After the passengers verified their luggage, one large duffel bag remained unclaimed. The detective asked Carvajal if the bag was his. Carvajal replied, "No." A K-9 drug-detecting dog, transported to the scene, then "signaled" to the unclaimed bag. Because of the dog's reaction and because the bag appeared to have been abandoned, Detective Laurencio searched it and discovered sixty-five rubber pellets containing heroin. A backpack inside the duffel bag contained a health card in the name of Pablo Carvajal and a Washington Mutual business card with an account number. Carvajal was arrested and taken to headquarters. A search of his person yielded the small yellow envelope Detective Laurencio earlier had observed. The envelope contained several cards, including a Washington Mutual business card with the same account number found on the card in the unclaimed duffel bag.
Carvajal was indicted for possession with intent to distribute heroin. The trial court denied his motion to suppress the evidence recovered from the duffel bag. The court determined that the police conducted an appropriate investigatory stop of Carvajal. The court also concluded that the duffel bag was abandoned property and that Carvajal "acted consistent with someone who had no ownership rights or interest in the bag." Thus, the court held that no "Fourth Amendment right" attached to the warrantless search of the duffel bag. Carvajal then pled guilty.
The Appellate Division affirmed the denial of Carvajal's motion to suppress, holding that because he had abandoned the duffel bag, the warrantless search was valid. The Supreme Court granted Carvajal's petition for certification. 200 N.J. 207 (2009).
HELD: The State satisfied its burden of proving by a preponderance of the evidence that the duffel bag was abandoned. Carvajal denied having any ownership or possessory interest in the bag, and the police attempted to identify other potential owners. Carvajal therefore had no standing to challenge the warrantless search of the bag.
1. Under the New Jersey Constitution, a defendant has automatic standing to move to suppress evidence from a claimed unreasonable search or seizure if he has a proprietary, possessory or participatory interest in the place to be searched or the property seized. In Johnson, the Court carved out a narrow exception to the automatic standing rule. The Court held that a defendant has no standing to object to the search or seizure of abandoned property because a defendant has no constitutionally protected interest in abandoned property. Property is abandoned when a person, who has control or dominion over property, knowingly and voluntarily relinquishes any interest in it and there are no other apparent or known owners. (pp. 8-10)
2. In Johnson, police executed a search warrant on a third-party in an apartment, entered with guns drawn, and arrested the individual. When Johnson was preparing to leave with a duffel bag and a box, a sergeant asked if the items were his. He mumbled, "Yes," then looked with surprise at the duffel bag and said, "These aren't mine. These aren't mine. That's not my bag." When one of the apartment residents denied knowing who owned the bag, the police grabbed it from Johnson, searched it, and found a gun. The Court observed that the police easily could have asked the other household members whether they owned the bag. Allowing Johnson to assert standing protected those residents from having their effects subjected to an unreasonable search. The Court noted that Johnson did not forfeit his right to challenge the search solely because he did not incriminate himself and say he owned the bag; in fact, his responses to the police were equivocal. In light of all relevant factors, the Court concluded that the duffel bag was not abandoned property and Johnson had standing to challenge its search and seizure. (pp. 10-12)
3. In Johnson, the Court stated that for standing purposes, property is abandoned if: (1) a person has control or dominion over property; (2) he knowingly and voluntarily relinquishes any possessory or ownership interest in it; and (3) there are no other apparent or known owners of the property. Obviously, unless there is an indication that someone owns or controls property left in a public place or on a public carrier, the property -- for practical and standing purposes -- is abandoned. Unlike the defendant in Johnson, Carvajal was not holding the bag. From the objective viewpoint of police, Carvajal had no apparent control or ownership interest in the unclaimed duffel bag on the bus. The bag did not have an exterior tag with his name on it; he did not have a claim ticket for it; and he denied traveling with any luggage or even having a change of clothes. The Court need not decide this case on the issue of whether Carvajal had apparent ownership of the bag because the remaining Johnson factors are satisfied. (pp. 12-14)
4. Assuming Carvajal had control of the bag, the question is whether, under all of the circumstances, he voluntarily and knowingly relinquished an interest in it. The stipulated facts on which the trial court based its ruling do not suggest that the police questioning was overbearing or coercive, that Carvajal equivocated in any way in disclaiming an interest in the bag, or that he did not understand what he was doing when he denied owning any luggage. Despite the brief investigatory detention, Carvajal was not subject to coercive threats, but rather a what-is-your-destination line of questioning. The Court rejects the argument that a person cannot knowingly and voluntarily relinquish an interest in property that may incriminate him in response to non-coercive police questioning. (pp. 14-17)
5. There is no reason to disturb the trial court's finding, based on the totality of the circumstances, that Carvajal acted consistent with someone who had no ownership interest in the bag. The standard for voluntariness is satisfied. In contrast, in Johnson, the voluntariness of the relinquishment of the bag was a real issue. Police were executing a warrant on a third-party; a sergeant who questioned Johnson had his gun drawn when he entered; and Johnson equivocally answered questions about owning the bag. (pp. 17-18)
6. Finally, after Carvajal denied having any luggage on the bus, the police checked with the other passengers. There remained one unclaimed duffel bag with no apparent or known owner in a bus depot. Here, unlike in Johnson, the police did not search the bag until all apparent owners had disclaimed any possessory interest in the property. (p. 18)
7. The State satisfied its burden of proving by a preponderance of the evidence that the duffel bag was abandoned. Thus, defendant had no standing to challenge the warrantless search of the bag. (p. 19)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS join in JUSTICEALBIN's opinion. JUSTICE LONG did not participate.
STATE v. ROY FRIEDMAN (A-0793-08T1)
STATE v. ROY FRIEDMAN (A-0793-08T1) 05-27-10
Mandatory periods of parole supervision on consecutive
sentences imposed under the No Early Release Act, N.J.S.A.
2C:43-7.2, run concurrently upon release from incarceration.
Mandatory periods of parole supervision on consecutive
sentences imposed under the No Early Release Act, N.J.S.A.
2C:43-7.2, run concurrently upon release from incarceration.
Monday, May 31, 2010
STATEMENT OF REASONS PURSUANT TO R. 2:5-1 STATE OF NEW.JERSEY,v. NICOLE HOLLAND,
SUPERIOR COURT OF NEW JERSEY COUNTY OF MONMOUTH LAW DIVISION-CRIMINAL PART MUNICIPAL APPEAL NO. 09-069
STATEMENT OF REASONS PURSUANT TO R.
2:5-1
STATE OF NEW.JERSEY,v.
NICOLE HOLLAND,
Defendant,
Decided on Record: April 16, 2010 Statement of Reasons: May 25, 2010
Luis A. Valentin, Monmouth County Prosecutor, for State-(Monica Do Outiero, Assistant prosecutor).
Alexander M. Iler, for defendant (Law Offices of Alexander M. Iler, attorney).
RICHARD W. ENGLISH, J.S.C.
This
matter comes
to
this court by' way
of
Municipal
Appeal
number
09-069
filed
by
the
defendant,
Nicole
Holland.
The issue .raised in the defendant's Municipal Appeal requires this court to determine whether the State's production in discovery of a certificate of a digital temperature probe manufactured by Control Company, contrary
1
to the requirement in State v. Chun,l which explicitly provides that the State shall produce a Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability, renders the results of the Alcotest unreliable and, thus, inadmissible against the Defendant to prove that she was Driving While Intoxicated.
I. Procedural History
On June 24, 2009, the Defendant was arrested in Neptune City, Monmouth County, and charged with Driving While Intoxicated (DWl), contrary to N.J.S.A. 39:4-50; Reckless Driving, contrary to N. J. S .A. 39:4-96; and Possession of Open, Unsealed Alcoholic Beverage Container, contrary to N.J.S.A. 39:4-51b.
On September 30, 2009, the Defendant appeared before the Honorable Mark T. Apostolou, J.M.C., in Neptune City Municipal Court for a motion to suppress the results of the Alcotest, which was administered to the Defendant following the motor vehicle stop. The defendant's position in arguing the suppression motion was to challenge the admissibility of the Alcotest results based on the State's use of a temperature probed manufactured by Control
194 N.J. 54, 135 (2008).
2
1
Company, Inc., 2 instead of a temperature probe manufactured by the Draeger Safety company. The Defendant claimed that the Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability, is required to be provided under State v. Chun, 3 as opposed to the Control Company Certificate4 that was provided.
After preliminary arguments from counsel, the hearing was adjourned so defense counsel had an opportunity to subpoena Wallace Berry, Technical Manager· of Control Company, Inc., located in Texas. Mr. Berry was apparently in charge of calibrating the Control Company, Inc. temperature probe that was used in the calibration of the Alcotest device.
On November 4, 2009, Judge Apostolou again heard arguments from counsel regarding the State v. Chun foundational documents requirement and the temperature probe, without the. presence of Mr. Berry. Mr. Berry, a resident of Texas, refused to comply with the defense counsel's subpoena. The main issue on appeal and presently before this court was argued before Judge Apostolou in pertinent part as follows:
2 Exhibit J-3. 3 194 N.J. at 135. 4 Exhibit J-3.
3
Mr. 1ler: Chun requires the
State to produce 12 foundational documents in discovery. Whether they have to become part of the case in chief to prove the admissibility as a result.
The Court: See, I was anticipating that your argument is also that the State has to produce them for a foundation, which I don't think is accurate...
[See Transcript of Hearing, November 4, 2009, 31-18 to 31-24] . After hearing the arguments, Judge Apostolou denied the Defendant's motion and stated the following:
"I think that in accordance with Judge King, clearly, as long as [the device is] N1ST traceable and subjected under Footnote 47 to the analysis that we did attempt to provide to Mr. 1ler, that he couldn't take advantage of, but we did attempt to provide it, that satisfies all of the due process needs with
4
regards to [Chun], and I therefore rule
that I will not throw out these
readings. "
[See Transcript of Hearing, November 4,
2009, 42-23 to 43-4] .
Immediately thereafter, the Defendant entered a conditional guilty plea to the DWI charge. At this time, counsel indicated to Judge Apostolou that the Defendant' s Alcotest results showed a blood alcohol concentration (BAC) of 0.15 to 0.16. The municipal prosecutor moved to dismiss the motor vehicle summons 69150, Reckless Driving, and 69151, Open Container. Judge Apostolou then sentenced Defendant on her first DWI to: a $308 fine i $33 court costs; $50 VCCB; $75 SNSP; a $200 surcharge; 210 days
(seven months) driver's .license suspension; and forty-eight
(48) hours at the Intoxicated Driver Resource Center. The Defendant's sentence was stayed pending the filing of this appeal.
On November 13, 2009, the Defendant filed a Notice of Appeal in New Jersey Superior Court, County of Monmouth.
On April 16, 2010, this court heard the defendant's Municipal Appeal. This court reviewed the following: the brief submitted by the defendant on March 11, 2010; the
5
brief submitted by the State on March 18, 2010 i and the
supplemental brief submitted by the defendant on April 7, 2010. This court also reviewed the municipal court transcripts dated September 30, 2009, and November 4, 2009. This court incorporates into this statement by way of reference its findings on the record on April 16, 2010.
This statement of reasons is submitted for amplification of this court's opinion on April 16, 2010.
II. The Defendant Submits that the Failure to Calibrate the Alcotest Machine using the Digital Measuring Device Approved in State v. Chun Requires Exclusion of the
Alcotest Results.
The
Defendant
argues
that
the
municipal
court
judge
erred
in
finding
that
the
Traceable
Certificate
of
Calibration
for
the
Digital
Thermometer
satisfied
the
requirements
under
State
v.
Chun
because
the
digital
thermometer was not manufactured by the company that was approved in Chun.
In the present case, "the Draeger Safety Ertco-Hart Calibration Report was not supplied.. indicating that the Ertco-Hart Digital Temperature Measuring System was not used during the· calibration of the Alcotest used for the
6
defendant's
tests."5
"Instead, a report
for
a different
device,
a
digital
thermometer
manufactured
by
Control
Company,
was
provided.,,6
The Defendant submits that \\ [o]ur Supreme Court approved of the methods employed by [Drager Safety] after hearing testimony from representatives of that company during the Special Master hearings in Chun." 7 "No such testimony was ever elicited concerning Control company."s
The defendant also points out that there are differences in calibration between the Control Company probe and the Ertco-Hart probe. 9 The Ertco-Hart temperature probe is tested every twelve (12) months, compared to the Control Company temperature probe which is tested every two
(2) years. 10 Defense counsel argued that, "[e] ven if the two devices were identical with regard to their ability to accurately measure simulator solution temperatures during Alcotest calibration, the Control Company device has not been subjected to the requisite approval by our Appellate
5 Defendant's Br. at lB. G Defendant's Br. at lB. 7 Defendant's Br. at 3. B Defendant's Br. at 3. 9 Defendant's Br. at 3. 10 Defendant's Br. at 3.
7
Division or Supreme Court for judicial notice purposes
following a Frye hearing."11
The Defendant further argues that "[t]he [t] rial [j]udge erroneously relied on the supposition that the Special Master's Report in [Chun] did not specify the use of Ertco-Hart temperature probe.,,]'2 "[T]he Special Master's Report does identify the Ertco-Hart probe on pages 119-120, while only referring to it generically on Page 40. ,,],3 However, "[t] he [Chun] opinion chose to specifically name the twelfth (12th) foundational document as an Ertco-Hart calibration certificate, not simply a generic NIST traceable temperature probe calibration certificate. flu
III. The State Submits that the Use of a Digital Measuring Device Manufactured by Control Company, Inc., does not in and of itsel,f Render the Calibration Procedures Flawed
Contrary to the defendant's position, the· State maintains that the Supreme Court's holding in Chun does not require the use "of only an Ertco-Hart probe" nor does it
11 Defendant's Br. at 4 (referring to Frye v. United States, 293 F.3d
1013 (D.C. Cir. 1923).
12 Defendant's Br. at 12.
13 Defendant's Br. at 12 (quoting the Special Master's Findings, 40,
119-120 (submitted to Supreme Court Feb. 13,
2007).http://www.judiciary.state.nj.us/mcs/mcsmemo/state_v_chun_special
masters report.pdf». 14 Defend~nt's Br. at 12 (referring to Chun, supra, 194 N.J. at 135).
8
bar "the State from substituting an equivalent device. 15
Instead, "the [Supreme] Court uses the term Ertco-Hart merely as an identifier when explaining the firmware revisions and foundational documents that it held were required, after review and adoption of the Special Master's findings. ,,16
The State. submits that the Special Master's report confirms the State's position because it states that the firmware \\ shall require that the Ertco-Hart digital Temperature Measuring System or other similar device traceable to the National Institute of Standards and
Technolgy. ,,17
The State maintains that \\ [t] he mere fact that the State now uses a device equivalent to, but not manufactured by Ertco-Hart, does not in and of itself render the calibration procedures flawed, affect the scientific reliability of the Alcotest device, or render the Control Company, Inc. Calibration Report insufficient to satisfy the foundational document requirement of Chun.,,18
IV. Analysis under State v. Chun
15 State's Br. at 6.
16 State's Br. at 6.
17 State's Br. at 6 (quoting SEecial Master's Findings at 234) .
18 State's Br. at 7-8 (referring to Chun, sUEra, 194 N.J. at 135) .
9
The Supreme Court of New Jersey "has recognized that
certain breath testing devices, commonly known as breathalyzers, are scientifically reliable and accurate instruments for determining blood alcohol' concentration
(BAC) . and that drivers whose breathalyzer test results demonstrate the requisite statutorily-imposed BAC are guilty per Se of driving while intoxicated (OWl) ."19
\\Since devices for determining blood alcohol concentration have become technologically' outdated, the Attorney General's office selected an alternative device ,to use for breath-test purposes: the Alcotest 7110 MKlll-C
(the Alcotest) ."20
\\ [T] he Alcotest, utilizing New Jersey Firmware version 3.11, is generally scientifically reliable, but [] certain modifications are required in order to' permit its results to be admissible or to allow it to be utilized to prove a per se violation of the statute. 1121 "Some of these cOhditions upon admissibility we impose as a matter of constitutional imperative, others as a matter of addressing certain of the device's mechanical and technical shortcomings. 1122
19 Chun, supra, 194 N. J. at 64.
20 Id.
21 Id. at 65.
22 Id.
10
"The analysis of the general scientific reliability of the Alcotest is grounded, in part, on the expectation that there will be proof that the particular device that has generated an AIR {Alcohol Influence Report)23 being offered into evidence was in good working order and that the operator of the device was appropriately qualified to administer the test."24 "This . requirement that the test results be supported by foundational proofs for admissibility has been part of our jurisprudence since [our Supreme Court] decided Romano." 25
Our Supreme Court in Romano held that, "as a precondition for admissibility of the results of a breathalyzer, the State was required to establish that: (1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and
(3) the test was administered according to official procedure. ,,26
Here, the Defendant submits that there is no dispute with the second and third conditions. The Defendant only disputes the first condition in this case.
23 Chun, supra, 194 N. J. at 82-83 (describing that the "results of the
test sequence are printed out from the device in a sequentially
numbered document referred to as an AIR") .
24 at 134 .
25 Id. (quotting Romano v. Kimmelman, 96 N.J. 66, 81 (1984).
26 Id. (quotting Romano, supra, 96 N.J. at 81 (1984».
11
Under the first condition, the Special Master, retired
Appellate Division Presiding Judge Michael Patrick King, in
his Master's Report recommended that the State produce
during discovery twelve foundational documents relating to
. the working order of the Alcotest device. 27 . Chun set forth
in detail the twelve foundational documents as follows:
(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operatorI s credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more
relevant
NJ
Calibration
Records
(including
both
Parts
I
and
II
are
offered));
(6)
Calibration
Check
(including
both
control
tests
and
linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis
0.10 Percent Solution (used in Calibration-Control); (S)Certificate of Analysis 0.04, 0 . OS, and 0.16 Percent Solution (used in CalibrationLinearity);
(9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, O.OS, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in
27 Chun, supra, 194 N.J. at 134.
12
the Calibration tests; and (12) Draeger Safety, Ertco-Hart Digital Temperature .Measuring System Report of Calibration, NIST traceability. [Chun, supra, 194 N.J. at 135.] These are the same documents in the Special Master's Report. 29 In this case, the defendant is challenging foundational document number twelve,· the Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability". 29 In the Special Master's Report, the report states the following when discussing administrative safeguards for defendants: "[t] he revised firmware shall require that the Ertco-Hart Digital Temperature Measuring System or other similar device traceable to the National Institute of Standards and Technology is in proper operating condition.... ,,30 The New Jersey Supreme Court did "not adopt the Special Master's recommendation" which "require[d] that [the foundational documentsl all be offered into evidence routinely. ,,31 "Many of the documents on the Special Master' s list of foundational proofs are tests of tests
28 Special Master's Findings at 244-45. 29 Chun, supra, 194 N.J. at 135. 30 Special Master's Findings at 234. 31 Chun, supra, 194 N.J. at 144.
13
and, therefore, are too attenuated to require that they be
admitted as part of the evidence."32
The Supreme Court included in that category "all of
the' documents relating to the working order of the simulator, the reports of the solutions used during simulation and calibration, .the certificate of accuracy of the .simulator used to calibrate the device, and the temperature probe documents. ,,33 "AIthough... these documents .should continue to be produced in discovery, they are not fundamentally a part of demonstrating that the particular
device was in good working order. 11 34
Our Supreme Court also did not adopt the Special
Master's language that "the revised firmware shall require
that the Ertco-Hart Digital Temperature Measuring System or
other similar device traceable to the National Institute of
Standards and Technology is in proper operating
condition.... ,,35 The Supreme Court specifically left out of
it's opinion \\or other similar device."
Furthermore, "in the event that any defendant
perceives of an irregularity in any of these [foundational]
documents that might affect the proper operation of the
device in question, timely issuance of a subpoena will
32 Id.
33 at 145.
34
3S Special Master's Findings at 234.
14
suffice for purposes of protecting that defendant's
rights. II The Supreme Court in Chun does not explain the action a trial court should take if a witness is not produced to testify about the operation of the device; nor does it explain how a trial court should proceed even with testimony from a witness.
The State has the burden of proving that the Alcotest device is in good working order, and has been properly inspected. 36 Although these documents are not fundamental,37 they are "part and parcel of ensuring that the machine is in good working order. 11 38 Additionally, the Chun Court ordered that "the State shall forthwith... [p] roduce in discovery the twelve foundation documents identified by the Special Master.... II Again, there is no mention of "or other similar device" in the order.
In this case, the State produced as foundational document number twelve a Traceable Certificate of Calibration for Digital Thermometer showing that .the digital temperature probe was produced by Control Company, Inc. 39 In Chun, foundational document number twelve is described as a Draeger Safety, Ertco-Hart Dl.gital
Temperature Measuring System Report of Calibration, NIST
36 Chun, supra, 194 N. J. at 134.
37 Id. at 144-45.
38 Id. at 142.
39 See Exhibit J-3.
15
traceability.40 The clear difference between the two
documents is the manufacturer of the digital temperature probe.
During the motion to suppress hearing, the municipal court .judge found that because the document in question stated the device was NIST traceable, the results of the test did not render the Alcotest results inadmissible. 41
This Court disagrees. This court does not find any evidence in the record below to show that the digital temperature probe manufactured by Control Company, Inc., is the same or similar to the Ertco-Hart digital temperature probe manufactured by Draeger Safety. Furthermore, this court does not have any evidence showing that NIST traceable means that the digital temperature probe properly tested the Alcotest machine and showed it was in good working order.
In fact, the evidence before this court shows that there are differences between the two temperature probes. First, Control Company, Inc. requires that the temperature probe be tested every two years, 42 while the Draeger Safety temperature probe requires testing every twelve months. Second, the certificate from the Control Company states the
40 Chun, supra, 194 N.J. at 135.
41 Record at 42-23 to 43-4, November 4, 2009.
42 Exhibit J-3; see also Defendant's Br. at 3.
16
following: II ••• there is no exact way to determine how long calibration will be maintained.". However, the Draeger Safety certification for the digital temperature probe does not contain this language. This court finds that the differences stated above in conjunction with the fact that there was no expert testimony regarding its functionality, leaves this court to question whether this device can properly test the operating capabilities of the Alcotest machine.
Without sufficient testimony offered at a ~43 hearing from an expert witness who could explain the similarities and differences between the digital temperature probe manufactured by Control Company and the· probe manufactured by Draeger Safety, and without guidance from the Supreme Court stating that the State may use a Control Company digital temperature probe in addition to the Supreme Court approved Draeger Safety temperature probe, this court finds that the foundational document submitted by the State in this case does not show that the machine was in good working order.
In light of the above legal analysis, this court finds that the dictates of Chun were not satisfied, andj accordingly, the results of Ms. Hollandts Alcotest readings
43 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
17
were suppressed and her municipal court conviction for Driving While Intoxicated was vacated in accordance with this court's amended order dated May 18, 2010. This matter was then remanded to the Neptune City Municipal Court for
trial,
to
consider
the
issue
of
the
Defendant's
psychophysical
testing
and
other
poten
tial
evidence
of
Driving
While
Intoxicated.
This court is aware of the opinion of Mercer County Superior Court Judge Mitchel E. Osterer, dated December 17, 2009, wherein he ruled that the Chun Court implicitly authorized the use of substitute temperature probes. Considering the divergent opinions, it is clear that an appellate court should render an opinion as to whether a substitute temperature probe can be utilized by the New Jersey State Police and local police departments throughout this State for the testing of the Alcotest device.
Accordingly, this court granted the Monmouth County Prosecutor's Office written request for a Stay of Appeal of this court's amended order dated May 18, 2010.
SUPERIOR COURT OF NEW JERSEY
CHAMBERS OF MONMOUTH COUNTY COURT HOUSE RICHARD W. ENGLISH 71 MONUMENT PARK Superior Court Judge P.O. BOX 1266 FREEHOLD, NEW JERSEY 07728-1266 TELEPHONE (732) 677-4139
May 25,2010
Appellate Division Clerk's Office
P.O. Box 006 Trenton, New Jersey 08625
Attn: Anita Toldo
Re: State v. Nicole HoZZand Docket No. AM-000644-09-T3 Municipal Appeal No. 09-069
Ms. Toldo:
I am enclosing a copy of the Court's Statement of Reasons dated May 25, 2010 in regard to the above captioned matter.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
RICHARD W. ENGLISH, J.S.C.
RWEjjao Enclosures
CC: Monica Do Outiero, Assistant Monmouth County Prosecutor Alexander M. Her, Esq.
,: .
STATEMENT OF REASONS PURSUANT TO R.
2:5-1
STATE OF NEW.JERSEY,v.
NICOLE HOLLAND,
Defendant,
Decided on Record: April 16, 2010 Statement of Reasons: May 25, 2010
Luis A. Valentin, Monmouth County Prosecutor, for State-(Monica Do Outiero, Assistant prosecutor).
Alexander M. Iler, for defendant (Law Offices of Alexander M. Iler, attorney).
RICHARD W. ENGLISH, J.S.C.
This
matter comes
to
this court by' way
of
Municipal
Appeal
number
09-069
filed
by
the
defendant,
Nicole
Holland.
The issue .raised in the defendant's Municipal Appeal requires this court to determine whether the State's production in discovery of a certificate of a digital temperature probe manufactured by Control Company, contrary
1
to the requirement in State v. Chun,l which explicitly provides that the State shall produce a Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability, renders the results of the Alcotest unreliable and, thus, inadmissible against the Defendant to prove that she was Driving While Intoxicated.
I. Procedural History
On June 24, 2009, the Defendant was arrested in Neptune City, Monmouth County, and charged with Driving While Intoxicated (DWl), contrary to N.J.S.A. 39:4-50; Reckless Driving, contrary to N. J. S .A. 39:4-96; and Possession of Open, Unsealed Alcoholic Beverage Container, contrary to N.J.S.A. 39:4-51b.
On September 30, 2009, the Defendant appeared before the Honorable Mark T. Apostolou, J.M.C., in Neptune City Municipal Court for a motion to suppress the results of the Alcotest, which was administered to the Defendant following the motor vehicle stop. The defendant's position in arguing the suppression motion was to challenge the admissibility of the Alcotest results based on the State's use of a temperature probed manufactured by Control
194 N.J. 54, 135 (2008).
2
1
Company, Inc., 2 instead of a temperature probe manufactured by the Draeger Safety company. The Defendant claimed that the Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability, is required to be provided under State v. Chun, 3 as opposed to the Control Company Certificate4 that was provided.
After preliminary arguments from counsel, the hearing was adjourned so defense counsel had an opportunity to subpoena Wallace Berry, Technical Manager· of Control Company, Inc., located in Texas. Mr. Berry was apparently in charge of calibrating the Control Company, Inc. temperature probe that was used in the calibration of the Alcotest device.
On November 4, 2009, Judge Apostolou again heard arguments from counsel regarding the State v. Chun foundational documents requirement and the temperature probe, without the. presence of Mr. Berry. Mr. Berry, a resident of Texas, refused to comply with the defense counsel's subpoena. The main issue on appeal and presently before this court was argued before Judge Apostolou in pertinent part as follows:
2 Exhibit J-3. 3 194 N.J. at 135. 4 Exhibit J-3.
3
Mr. 1ler: Chun requires the
State to produce 12 foundational documents in discovery. Whether they have to become part of the case in chief to prove the admissibility as a result.
The Court: See, I was anticipating that your argument is also that the State has to produce them for a foundation, which I don't think is accurate...
[See Transcript of Hearing, November 4, 2009, 31-18 to 31-24] . After hearing the arguments, Judge Apostolou denied the Defendant's motion and stated the following:
"I think that in accordance with Judge King, clearly, as long as [the device is] N1ST traceable and subjected under Footnote 47 to the analysis that we did attempt to provide to Mr. 1ler, that he couldn't take advantage of, but we did attempt to provide it, that satisfies all of the due process needs with
4
regards to [Chun], and I therefore rule
that I will not throw out these
readings. "
[See Transcript of Hearing, November 4,
2009, 42-23 to 43-4] .
Immediately thereafter, the Defendant entered a conditional guilty plea to the DWI charge. At this time, counsel indicated to Judge Apostolou that the Defendant' s Alcotest results showed a blood alcohol concentration (BAC) of 0.15 to 0.16. The municipal prosecutor moved to dismiss the motor vehicle summons 69150, Reckless Driving, and 69151, Open Container. Judge Apostolou then sentenced Defendant on her first DWI to: a $308 fine i $33 court costs; $50 VCCB; $75 SNSP; a $200 surcharge; 210 days
(seven months) driver's .license suspension; and forty-eight
(48) hours at the Intoxicated Driver Resource Center. The Defendant's sentence was stayed pending the filing of this appeal.
On November 13, 2009, the Defendant filed a Notice of Appeal in New Jersey Superior Court, County of Monmouth.
On April 16, 2010, this court heard the defendant's Municipal Appeal. This court reviewed the following: the brief submitted by the defendant on March 11, 2010; the
5
brief submitted by the State on March 18, 2010 i and the
supplemental brief submitted by the defendant on April 7, 2010. This court also reviewed the municipal court transcripts dated September 30, 2009, and November 4, 2009. This court incorporates into this statement by way of reference its findings on the record on April 16, 2010.
This statement of reasons is submitted for amplification of this court's opinion on April 16, 2010.
II. The Defendant Submits that the Failure to Calibrate the Alcotest Machine using the Digital Measuring Device Approved in State v. Chun Requires Exclusion of the
Alcotest Results.
The
Defendant
argues
that
the
municipal
court
judge
erred
in
finding
that
the
Traceable
Certificate
of
Calibration
for
the
Digital
Thermometer
satisfied
the
requirements
under
State
v.
Chun
because
the
digital
thermometer was not manufactured by the company that was approved in Chun.
In the present case, "the Draeger Safety Ertco-Hart Calibration Report was not supplied.. indicating that the Ertco-Hart Digital Temperature Measuring System was not used during the· calibration of the Alcotest used for the
6
defendant's
tests."5
"Instead, a report
for
a different
device,
a
digital
thermometer
manufactured
by
Control
Company,
was
provided.,,6
The Defendant submits that \\ [o]ur Supreme Court approved of the methods employed by [Drager Safety] after hearing testimony from representatives of that company during the Special Master hearings in Chun." 7 "No such testimony was ever elicited concerning Control company."s
The defendant also points out that there are differences in calibration between the Control Company probe and the Ertco-Hart probe. 9 The Ertco-Hart temperature probe is tested every twelve (12) months, compared to the Control Company temperature probe which is tested every two
(2) years. 10 Defense counsel argued that, "[e] ven if the two devices were identical with regard to their ability to accurately measure simulator solution temperatures during Alcotest calibration, the Control Company device has not been subjected to the requisite approval by our Appellate
5 Defendant's Br. at lB. G Defendant's Br. at lB. 7 Defendant's Br. at 3. B Defendant's Br. at 3. 9 Defendant's Br. at 3. 10 Defendant's Br. at 3.
7
Division or Supreme Court for judicial notice purposes
following a Frye hearing."11
The Defendant further argues that "[t]he [t] rial [j]udge erroneously relied on the supposition that the Special Master's Report in [Chun] did not specify the use of Ertco-Hart temperature probe.,,]'2 "[T]he Special Master's Report does identify the Ertco-Hart probe on pages 119-120, while only referring to it generically on Page 40. ,,],3 However, "[t] he [Chun] opinion chose to specifically name the twelfth (12th) foundational document as an Ertco-Hart calibration certificate, not simply a generic NIST traceable temperature probe calibration certificate. flu
III. The State Submits that the Use of a Digital Measuring Device Manufactured by Control Company, Inc., does not in and of itsel,f Render the Calibration Procedures Flawed
Contrary to the defendant's position, the· State maintains that the Supreme Court's holding in Chun does not require the use "of only an Ertco-Hart probe" nor does it
11 Defendant's Br. at 4 (referring to Frye v. United States, 293 F.3d
1013 (D.C. Cir. 1923).
12 Defendant's Br. at 12.
13 Defendant's Br. at 12 (quoting the Special Master's Findings, 40,
119-120 (submitted to Supreme Court Feb. 13,
2007).http://www.judiciary.state.nj.us/mcs/mcsmemo/state_v_chun_special
masters report.pdf». 14 Defend~nt's Br. at 12 (referring to Chun, supra, 194 N.J. at 135).
8
bar "the State from substituting an equivalent device. 15
Instead, "the [Supreme] Court uses the term Ertco-Hart merely as an identifier when explaining the firmware revisions and foundational documents that it held were required, after review and adoption of the Special Master's findings. ,,16
The State. submits that the Special Master's report confirms the State's position because it states that the firmware \\ shall require that the Ertco-Hart digital Temperature Measuring System or other similar device traceable to the National Institute of Standards and
Technolgy. ,,17
The State maintains that \\ [t] he mere fact that the State now uses a device equivalent to, but not manufactured by Ertco-Hart, does not in and of itself render the calibration procedures flawed, affect the scientific reliability of the Alcotest device, or render the Control Company, Inc. Calibration Report insufficient to satisfy the foundational document requirement of Chun.,,18
IV. Analysis under State v. Chun
15 State's Br. at 6.
16 State's Br. at 6.
17 State's Br. at 6 (quoting SEecial Master's Findings at 234) .
18 State's Br. at 7-8 (referring to Chun, sUEra, 194 N.J. at 135) .
9
The Supreme Court of New Jersey "has recognized that
certain breath testing devices, commonly known as breathalyzers, are scientifically reliable and accurate instruments for determining blood alcohol' concentration
(BAC) . and that drivers whose breathalyzer test results demonstrate the requisite statutorily-imposed BAC are guilty per Se of driving while intoxicated (OWl) ."19
\\Since devices for determining blood alcohol concentration have become technologically' outdated, the Attorney General's office selected an alternative device ,to use for breath-test purposes: the Alcotest 7110 MKlll-C
(the Alcotest) ."20
\\ [T] he Alcotest, utilizing New Jersey Firmware version 3.11, is generally scientifically reliable, but [] certain modifications are required in order to' permit its results to be admissible or to allow it to be utilized to prove a per se violation of the statute. 1121 "Some of these cOhditions upon admissibility we impose as a matter of constitutional imperative, others as a matter of addressing certain of the device's mechanical and technical shortcomings. 1122
19 Chun, supra, 194 N. J. at 64.
20 Id.
21 Id. at 65.
22 Id.
10
"The analysis of the general scientific reliability of the Alcotest is grounded, in part, on the expectation that there will be proof that the particular device that has generated an AIR {Alcohol Influence Report)23 being offered into evidence was in good working order and that the operator of the device was appropriately qualified to administer the test."24 "This . requirement that the test results be supported by foundational proofs for admissibility has been part of our jurisprudence since [our Supreme Court] decided Romano." 25
Our Supreme Court in Romano held that, "as a precondition for admissibility of the results of a breathalyzer, the State was required to establish that: (1) the device was in working order and had been inspected according to procedure; (2) the operator was certified; and
(3) the test was administered according to official procedure. ,,26
Here, the Defendant submits that there is no dispute with the second and third conditions. The Defendant only disputes the first condition in this case.
23 Chun, supra, 194 N. J. at 82-83 (describing that the "results of the
test sequence are printed out from the device in a sequentially
numbered document referred to as an AIR") .
24 at 134 .
25 Id. (quotting Romano v. Kimmelman, 96 N.J. 66, 81 (1984).
26 Id. (quotting Romano, supra, 96 N.J. at 81 (1984».
11
Under the first condition, the Special Master, retired
Appellate Division Presiding Judge Michael Patrick King, in
his Master's Report recommended that the State produce
during discovery twelve foundational documents relating to
. the working order of the Alcotest device. 27 . Chun set forth
in detail the twelve foundational documents as follows:
(1) Calibrating Unit, New Standard Solution Report, most recent change, and the operatorI s credentials of the officer who performed that change; (2) Certificate of Analysis 0.10 Percent Solution used in New Solution Report; (3) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator; (4) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe; (5) Draeger Safety Certificate of Accuracy Alcotest 7110 Instrument (unless more
relevant
NJ
Calibration
Records
(including
both
Parts
I
and
II
are
offered));
(6)
Calibration
Check
(including
both
control
tests
and
linearity tests and the credentials of the operator/coordinator who performed the tests); (7) Certificate of Analysis
0.10 Percent Solution (used in Calibration-Control); (S)Certificate of Analysis 0.04, 0 . OS, and 0.16 Percent Solution (used in CalibrationLinearity);
(9) Calibrating Unit, New Standard Solution Report, following Calibration; (10) Draeger Safety Certificate of Accuracy Alcotest CU34 Simulator for the three simulators used in the 0.04, O.OS, and 0.16 percent solutions when conducting the Calibration-Linearity tests; (11) Draeger Safety Certificate of Accuracy Alcotest 7110 Temperature Probe used in
27 Chun, supra, 194 N.J. at 134.
12
the Calibration tests; and (12) Draeger Safety, Ertco-Hart Digital Temperature .Measuring System Report of Calibration, NIST traceability. [Chun, supra, 194 N.J. at 135.] These are the same documents in the Special Master's Report. 29 In this case, the defendant is challenging foundational document number twelve,· the Draeger Safety, Ertco-Hart Digital Temperature Measuring System Report of Calibration, NIST traceability". 29 In the Special Master's Report, the report states the following when discussing administrative safeguards for defendants: "[t] he revised firmware shall require that the Ertco-Hart Digital Temperature Measuring System or other similar device traceable to the National Institute of Standards and Technology is in proper operating condition.... ,,30 The New Jersey Supreme Court did "not adopt the Special Master's recommendation" which "require[d] that [the foundational documentsl all be offered into evidence routinely. ,,31 "Many of the documents on the Special Master' s list of foundational proofs are tests of tests
28 Special Master's Findings at 244-45. 29 Chun, supra, 194 N.J. at 135. 30 Special Master's Findings at 234. 31 Chun, supra, 194 N.J. at 144.
13
and, therefore, are too attenuated to require that they be
admitted as part of the evidence."32
The Supreme Court included in that category "all of
the' documents relating to the working order of the simulator, the reports of the solutions used during simulation and calibration, .the certificate of accuracy of the .simulator used to calibrate the device, and the temperature probe documents. ,,33 "AIthough... these documents .should continue to be produced in discovery, they are not fundamentally a part of demonstrating that the particular
device was in good working order. 11 34
Our Supreme Court also did not adopt the Special
Master's language that "the revised firmware shall require
that the Ertco-Hart Digital Temperature Measuring System or
other similar device traceable to the National Institute of
Standards and Technology is in proper operating
condition.... ,,35 The Supreme Court specifically left out of
it's opinion \\or other similar device."
Furthermore, "in the event that any defendant
perceives of an irregularity in any of these [foundational]
documents that might affect the proper operation of the
device in question, timely issuance of a subpoena will
32 Id.
33 at 145.
34
3S Special Master's Findings at 234.
14
suffice for purposes of protecting that defendant's
rights. II The Supreme Court in Chun does not explain the action a trial court should take if a witness is not produced to testify about the operation of the device; nor does it explain how a trial court should proceed even with testimony from a witness.
The State has the burden of proving that the Alcotest device is in good working order, and has been properly inspected. 36 Although these documents are not fundamental,37 they are "part and parcel of ensuring that the machine is in good working order. 11 38 Additionally, the Chun Court ordered that "the State shall forthwith... [p] roduce in discovery the twelve foundation documents identified by the Special Master.... II Again, there is no mention of "or other similar device" in the order.
In this case, the State produced as foundational document number twelve a Traceable Certificate of Calibration for Digital Thermometer showing that .the digital temperature probe was produced by Control Company, Inc. 39 In Chun, foundational document number twelve is described as a Draeger Safety, Ertco-Hart Dl.gital
Temperature Measuring System Report of Calibration, NIST
36 Chun, supra, 194 N. J. at 134.
37 Id. at 144-45.
38 Id. at 142.
39 See Exhibit J-3.
15
traceability.40 The clear difference between the two
documents is the manufacturer of the digital temperature probe.
During the motion to suppress hearing, the municipal court .judge found that because the document in question stated the device was NIST traceable, the results of the test did not render the Alcotest results inadmissible. 41
This Court disagrees. This court does not find any evidence in the record below to show that the digital temperature probe manufactured by Control Company, Inc., is the same or similar to the Ertco-Hart digital temperature probe manufactured by Draeger Safety. Furthermore, this court does not have any evidence showing that NIST traceable means that the digital temperature probe properly tested the Alcotest machine and showed it was in good working order.
In fact, the evidence before this court shows that there are differences between the two temperature probes. First, Control Company, Inc. requires that the temperature probe be tested every two years, 42 while the Draeger Safety temperature probe requires testing every twelve months. Second, the certificate from the Control Company states the
40 Chun, supra, 194 N.J. at 135.
41 Record at 42-23 to 43-4, November 4, 2009.
42 Exhibit J-3; see also Defendant's Br. at 3.
16
following: II ••• there is no exact way to determine how long calibration will be maintained.". However, the Draeger Safety certification for the digital temperature probe does not contain this language. This court finds that the differences stated above in conjunction with the fact that there was no expert testimony regarding its functionality, leaves this court to question whether this device can properly test the operating capabilities of the Alcotest machine.
Without sufficient testimony offered at a ~43 hearing from an expert witness who could explain the similarities and differences between the digital temperature probe manufactured by Control Company and the· probe manufactured by Draeger Safety, and without guidance from the Supreme Court stating that the State may use a Control Company digital temperature probe in addition to the Supreme Court approved Draeger Safety temperature probe, this court finds that the foundational document submitted by the State in this case does not show that the machine was in good working order.
In light of the above legal analysis, this court finds that the dictates of Chun were not satisfied, andj accordingly, the results of Ms. Hollandts Alcotest readings
43 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
17
were suppressed and her municipal court conviction for Driving While Intoxicated was vacated in accordance with this court's amended order dated May 18, 2010. This matter was then remanded to the Neptune City Municipal Court for
trial,
to
consider
the
issue
of
the
Defendant's
psychophysical
testing
and
other
poten
tial
evidence
of
Driving
While
Intoxicated.
This court is aware of the opinion of Mercer County Superior Court Judge Mitchel E. Osterer, dated December 17, 2009, wherein he ruled that the Chun Court implicitly authorized the use of substitute temperature probes. Considering the divergent opinions, it is clear that an appellate court should render an opinion as to whether a substitute temperature probe can be utilized by the New Jersey State Police and local police departments throughout this State for the testing of the Alcotest device.
Accordingly, this court granted the Monmouth County Prosecutor's Office written request for a Stay of Appeal of this court's amended order dated May 18, 2010.
SUPERIOR COURT OF NEW JERSEY
CHAMBERS OF MONMOUTH COUNTY COURT HOUSE RICHARD W. ENGLISH 71 MONUMENT PARK Superior Court Judge P.O. BOX 1266 FREEHOLD, NEW JERSEY 07728-1266 TELEPHONE (732) 677-4139
May 25,2010
Appellate Division Clerk's Office
P.O. Box 006 Trenton, New Jersey 08625
Attn: Anita Toldo
Re: State v. Nicole HoZZand Docket No. AM-000644-09-T3 Municipal Appeal No. 09-069
Ms. Toldo:
I am enclosing a copy of the Court's Statement of Reasons dated May 25, 2010 in regard to the above captioned matter.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
RICHARD W. ENGLISH, J.S.C.
RWEjjao Enclosures
CC: Monica Do Outiero, Assistant Monmouth County Prosecutor Alexander M. Her, Esq.
,: .
Wednesday, May 26, 2010
STATE v. RILEY JEFFERSON a/k/a SYNCERE RILEY JEFFERSON (A-1945-06T4)
STATE v. RILEY JEFFERSON a/k/a SYNCERE RILEY JEFFERSON (A-1945-06T4) 05-21-10
(1) In the absence of a warrant or a recognized exception
from the Fourth Amendment's warrant requirement, the police
could not lawfully enter defendant's home to conduct a Terry-
type detention and investigation of defendant.
(2) A police officer's wedging herself in the doorway to
prevent defendant from closing his front door was entry into the
home.
(3) The police failed to show either "hot pursuit" exigent
circumstances or a community caretaking exception from the
warrant requirement.
(4) Although the police entry was unlawful, defendant had
no right to resist physically, and the search of his person
incident to arrest was lawful.
(5) Consent to search defendant's apartment, given by
defendant's wife, was tainted by the unconstitutional police
conduct and was not shown to be voluntary.
(1) In the absence of a warrant or a recognized exception
from the Fourth Amendment's warrant requirement, the police
could not lawfully enter defendant's home to conduct a Terry-
type detention and investigation of defendant.
(2) A police officer's wedging herself in the doorway to
prevent defendant from closing his front door was entry into the
home.
(3) The police failed to show either "hot pursuit" exigent
circumstances or a community caretaking exception from the
warrant requirement.
(4) Although the police entry was unlawful, defendant had
no right to resist physically, and the search of his person
incident to arrest was lawful.
(5) Consent to search defendant's apartment, given by
defendant's wife, was tainted by the unconstitutional police
conduct and was not shown to be voluntary.
Friday, May 21, 2010
STATE OF NEW JERSEY v. RICKY SESSOMS (A-1488-09T4)
STATE OF NEW JERSEY v. RICKY SESSOMS (A-1488-09T4) 5-17-10
On the strength of an affidavit purportedly authored by a
confidential informant, a defendant charged with drug and
weapons possession offenses obtained a pretrial order compelling
the State to "confirm or deny" the informant's identity. We
reverse the order, as the privilege belongs to the State and not
the informer, and the circumstances in this case did not satisfy
the "disclosure" exception found in N.J.R.E. 516.
On the strength of an affidavit purportedly authored by a
confidential informant, a defendant charged with drug and
weapons possession offenses obtained a pretrial order compelling
the State to "confirm or deny" the informant's identity. We
reverse the order, as the privilege belongs to the State and not
the informer, and the circumstances in this case did not satisfy
the "disclosure" exception found in N.J.R.E. 516.
Wednesday, May 12, 2010
State v. Danny Mai (A-98-09)
State v. Danny Mai (A-98-09) 5-6-10
The officers presented sufficient facts in the
totality of the circumstances that would create in a
police officer a heightened awareness of danger that
would warrant an objectively reasonable officer in
securing the scene in a more effective manner by
ordering the passenger to exit the car. Those same
circumstances authorize a police officer to open a State v. Danny Mai (A-98-09)
The officers presented sufficient facts in the
totality of the circumstances that would create in a
police officer a heightened awareness of danger that
would warrant an objectively reasonable officer in
securing the scene in a more effective manner by
ordering the passenger to exit the car. Those same
circumstances authorize a police officer to open a
vehicle door as part of ordering a passenger to exit.
Thus, the seizure of the weapon was proper under the
plain view doctrine, and the seizure of the holster
and loaded magazine from the passenger was lawful as
the fruits of a proper search incident to an arrest.
The officers presented sufficient facts in the
totality of the circumstances that would create in a
police officer a heightened awareness of danger that
would warrant an objectively reasonable officer in
securing the scene in a more effective manner by
ordering the passenger to exit the car. Those same
circumstances authorize a police officer to open a State v. Danny Mai (A-98-09)
The officers presented sufficient facts in the
totality of the circumstances that would create in a
police officer a heightened awareness of danger that
would warrant an objectively reasonable officer in
securing the scene in a more effective manner by
ordering the passenger to exit the car. Those same
circumstances authorize a police officer to open a
vehicle door as part of ordering a passenger to exit.
Thus, the seizure of the weapon was proper under the
plain view doctrine, and the seizure of the holster
and loaded magazine from the passenger was lawful as
the fruits of a proper search incident to an arrest.
State v. Duane Kelly (A-24-09)
State v. Duane Kelly (A-24-09) 5-4-10
The Court affirms the judgment of the Appellate
Division upholding defendant’s murder, felony-murder,
and armed-robbery convictions. Defendant’s second
trial was not barred by the principles of collateral
estoppel, which are incorporated in the Double
Jeopardy Clause. Because of the seemingly
inconsistent verdicts in the first trial, defendant
cannot establish that the jury determined an ultimate
fact that precluded a retrial of the reversed
convictions. Moreover, even if the verdicts were not
inconsistent, the Court would not be inclined to apply
the constitutional-equitable doctrine of collateral
estoppel when the ultimate issue defendant seeks to
preclude from relitigation is one that might well have
been founded on a defense witness’s perjured
testimony, testimony that tainted both the acquittals and convictions in the first trial.
The Court affirms the judgment of the Appellate
Division upholding defendant’s murder, felony-murder,
and armed-robbery convictions. Defendant’s second
trial was not barred by the principles of collateral
estoppel, which are incorporated in the Double
Jeopardy Clause. Because of the seemingly
inconsistent verdicts in the first trial, defendant
cannot establish that the jury determined an ultimate
fact that precluded a retrial of the reversed
convictions. Moreover, even if the verdicts were not
inconsistent, the Court would not be inclined to apply
the constitutional-equitable doctrine of collateral
estoppel when the ultimate issue defendant seeks to
preclude from relitigation is one that might well have
been founded on a defense witness’s perjured
testimony, testimony that tainted both the acquittals and convictions in the first trial.
State v. Duane Kelly (A-24-09)
State v. Duane Kelly (A-24-09) 5-4-10
The Court affirms the judgment of the Appellate
Division upholding defendant’s murder, felony-murder,
and armed-robbery convictions. Defendant’s second
trial was not barred by the principles of collateral
estoppel, which are incorporated in the Double
Jeopardy Clause. Because of the seemingly
inconsistent verdicts in the first trial, defendant
cannot establish that the jury determined an ultimate
fact that precluded a retrial of the reversed
convictions. Moreover, even if the verdicts were not
inconsistent, the Court would not be inclined to apply
the constitutional-equitable doctrine of collateral
estoppel when the ultimate issue defendant seeks to
preclude from relitigation is one that might well have
been founded on a defense witness’s perjured
testimony, testimony that tainted both the acquittals and convictions in the first trial.
The Court affirms the judgment of the Appellate
Division upholding defendant’s murder, felony-murder,
and armed-robbery convictions. Defendant’s second
trial was not barred by the principles of collateral
estoppel, which are incorporated in the Double
Jeopardy Clause. Because of the seemingly
inconsistent verdicts in the first trial, defendant
cannot establish that the jury determined an ultimate
fact that precluded a retrial of the reversed
convictions. Moreover, even if the verdicts were not
inconsistent, the Court would not be inclined to apply
the constitutional-equitable doctrine of collateral
estoppel when the ultimate issue defendant seeks to
preclude from relitigation is one that might well have
been founded on a defense witness’s perjured
testimony, testimony that tainted both the acquittals and convictions in the first trial.
Wednesday, April 28, 2010
State v. Frank Dellisanti (A-29-09)
State v. Frank Dellisanti (A-29-09) 4-27-10
The arrest of defendant Frank Dellisanti for a
probation violation during jury deliberations in his
unrelated criminal trial violated his right under Rule
3:16(b) to be present through the trial’s conclusion
and the rendering of the verdict. Because the record
does not establish that the Rule’s conditions for
waiver were satisfied, the Court reverses Dellisanti’s
convictions and remands for a new trial.
The arrest of defendant Frank Dellisanti for a
probation violation during jury deliberations in his
unrelated criminal trial violated his right under Rule
3:16(b) to be present through the trial’s conclusion
and the rendering of the verdict. Because the record
does not establish that the Rule’s conditions for
waiver were satisfied, the Court reverses Dellisanti’s
convictions and remands for a new trial.
STATE v. KARL LESTER MURPHY (A-3693-08T4)
STATE OF NEW JERSEY v. KARL LESTER MURPHY A-3693-08T4
We held that the trial judge's rulings, authorizing the
State to use a seventeen-year-old prior conviction to impeach
defendant's credibility and permitting the prosecutor to argue
that a testifying police officer had no incentive to lie,
deprived defendant of his right to a fair trial. We agreed with
defendant's contention that the prosecutor's summation exceeded
the boundaries of legitimate advocacy when she vouched for the
credibility of her witness. We likewise agreed with defendant's
claim that because he had no intervening convictions, this
seventeen-year-old conviction was so stale that its probative
value was vastly outweighed by its prejudicial effect, and the
judge therefore erred by permitting the State to use it to
impeach his credibility. In this trial, where the State's
proofs were far from overwheerrors harmless.
We held that the trial judge's rulings, authorizing the
State to use a seventeen-year-old prior conviction to impeach
defendant's credibility and permitting the prosecutor to argue
that a testifying police officer had no incentive to lie,
deprived defendant of his right to a fair trial. We agreed with
defendant's contention that the prosecutor's summation exceeded
the boundaries of legitimate advocacy when she vouched for the
credibility of her witness. We likewise agreed with defendant's
claim that because he had no intervening convictions, this
seventeen-year-old conviction was so stale that its probative
value was vastly outweighed by its prejudicial effect, and the
judge therefore erred by permitting the State to use it to
impeach his credibility. In this trial, where the State's
proofs were far from overwheerrors harmless.
STATE OF NEW JERSEY VS. E.W. (A-0146-08T4)
STATE OF NEW JERSEY VS. E.W. A-0146-08T4 (4-27-10)
We held that defendant was entitled to post-conviction
relief consisting of vacation of an illegal sentence when
evidence demonstrated that defendant had committed a sexual
assault on a juvenile in 1979 when the statute of limitations
for the offense was five years, the statute of limitations on
the offense had expired prior to the amendment of N.J.S.A. 2C:1-
6 in 1986 to exempt sexual assault from the five-year bar, and
defendant was not indicted for the crime until 1991. Any
application of the 1986 version of N.J.S.A. 2C:1-6 to preserve
the claim against defendant violated the Constitution's Ex Post
Facto Clause, and thus both his conviction and sentence were
illegal.
We held that defendant was entitled to post-conviction
relief consisting of vacation of an illegal sentence when
evidence demonstrated that defendant had committed a sexual
assault on a juvenile in 1979 when the statute of limitations
for the offense was five years, the statute of limitations on
the offense had expired prior to the amendment of N.J.S.A. 2C:1-
6 in 1986 to exempt sexual assault from the five-year bar, and
defendant was not indicted for the crime until 1991. Any
application of the 1986 version of N.J.S.A. 2C:1-6 to preserve
the claim against defendant violated the Constitution's Ex Post
Facto Clause, and thus both his conviction and sentence were
illegal.
Sunday, April 18, 2010
RECENT CHANGES IN MUNICIPAL COURT LAW: 2010 – Law Center
RECENT CHANGES IN MUNICIPAL COURT LAW: 2010 – Law Center
Monday, May 03, 2010
5:30 PM to 9:00 PM
New Jersey Law Center, New Brunswick / S1507-15379
KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
Chair, ABA Elder Law Committee
Past GP Solo Section Attorney of the Year
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates
Speakers include:
HON. JOAN ROBINSON GROSS, PJMC
(Union County)
Chair, Supreme Court Municipal Practice Committee (Union County)
WILLIAM G. BRIGIANI, ESQ.
Brigiani, Cohen & Schneider
NORMA M. MURGADO, ESQ.
Chief Prosecutor (Elizabeth)
Assistant Prosecutor (Woodbridge)
Murgado & Carroll, Esq. (Elizabeth)
JOHN MENZEL, ESQ.
Moore & Menzel
Are you prepared to prosecute or defend your client in new Alcotest cases?
This informative guide to Municipal Court practice and procedure will familiarize you with the most recent developments affecting cases that are heard in Municipal Court.
An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge 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.
Program Preview:
• Criminal Case Law and Legislative Update
• The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double jeopardy issues
• Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff
• Recent developments in traffic law, merged traffic tickets and more
• DWI and Chun
• Ask the Experts
Tuition fees Reg. Fee Reg. Type Seminar # S1507-15378
Register by 3/31/10 $109.00 EB
GENERAL TUITION (REG) $169.00 REG
NJICLE SEASON TICKETS (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $145.00 YL
Paralegals (PAR) $119.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JUD
Seminar number S1507-15379
Presented in cooperation with the NJSBA Municipal Court Section and the NJSBA Young Lawyers’ Division
DOOR REGISTRATIONS: $189
Advance registration closes at noon of the day preceding the program. After that time you may still register, space permitting, for the Door Registration Fee. PLEASE CALL FIRST to confirm the seminar schedule and space availability.
* NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.
New Jersey Institute for Continuing Legal Education
The non-profit continuing education service of:
The New Jersey State Bar Association
Rutgers - The State University of New Jersey
Seton Hall University
One Constitution Square,
New Brunswick, New Jersey 08901-1520
Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
Monday, May 03, 2010
5:30 PM to 9:00 PM
New Jersey Law Center, New Brunswick / S1507-15379
KENNETH A. VERCAMMEN, ESQ.
Past Chair, NJSBA Municipal Court Section
Chair, ABA Elder Law Committee
Past GP Solo Section Attorney of the Year
2006 NJSBA Municipal Court Practitioner of the Year
K. Vercammen & Associates
Speakers include:
HON. JOAN ROBINSON GROSS, PJMC
(Union County)
Chair, Supreme Court Municipal Practice Committee (Union County)
WILLIAM G. BRIGIANI, ESQ.
Brigiani, Cohen & Schneider
NORMA M. MURGADO, ESQ.
Chief Prosecutor (Elizabeth)
Assistant Prosecutor (Woodbridge)
Murgado & Carroll, Esq. (Elizabeth)
JOHN MENZEL, ESQ.
Moore & Menzel
Are you prepared to prosecute or defend your client in new Alcotest cases?
This informative guide to Municipal Court practice and procedure will familiarize you with the most recent developments affecting cases that are heard in Municipal Court.
An authoritative panel of experienced attorneys will be joined by a Presiding Municipal Court Judge 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.
Program Preview:
• Criminal Case Law and Legislative Update
• The Prosecutor’s Perspective: DWI, no-insurance cases, recent directives from the Attorney General and Prosecutor, plea agreements in drug cases, double jeopardy issues
• Judicial Perspective: Expert arguments, important court rules, common errors by defense attorneys and prosecutors, how to impress the court and not annoy the court staff
• Recent developments in traffic law, merged traffic tickets and more
• DWI and Chun
• Ask the Experts
Tuition fees Reg. Fee Reg. Type Seminar # S1507-15378
Register by 3/31/10 $109.00 EB
GENERAL TUITION (REG) $169.00 REG
NJICLE SEASON TICKETS (STX) 1 Season Ticket(s) STX
MEMBERS, CO-SPONSORING SECTION (COS) $119.00 COS*
MEMBERS, NJSBA (NJB*) $129.00 NJB*
MEMBERS, NJSBA YLD (YLD*) $119.00 YLD*
Recent admittees (past 2 years) (YL) $145.00 YL
Paralegals (PAR) $119.00 PAR
Law Students (with Student ID) (STU) $0.00 STU
Full Time Judges (JUD) $0.00 JUD
Seminar number S1507-15379
Presented in cooperation with the NJSBA Municipal Court Section and the NJSBA Young Lawyers’ Division
DOOR REGISTRATIONS: $189
Advance registration closes at noon of the day preceding the program. After that time you may still register, space permitting, for the Door Registration Fee. PLEASE CALL FIRST to confirm the seminar schedule and space availability.
* NJSBA Member Price – To qualify for this reduced price, you must provide your NJSBA Member# at the time you place your order. If you place your order without providing your NJSBA Member#, you will be charged the regular price.
New Jersey Institute for Continuing Legal Education
The non-profit continuing education service of:
The New Jersey State Bar Association
Rutgers - The State University of New Jersey
Seton Hall University
One Constitution Square,
New Brunswick, New Jersey 08901-1520
Phone: (732)214-8500 Fax: (732)249-0383 • CustomerService@njicle.com
Friday, April 16, 2010
STATE OF New Jersey v. GERMAINE A. HANDY (A-1838-07T4)
STATE OF NEW JERSEY v. GERMAINE A. HANDY
A-1838-07T 04-12-10
This appeal required us to determine whether evidence found
during the search incident to defendant's arrest should have
been suppressed because the dispatcher who incorrectly informed
the arresting officer that there was an outstanding arrest
warrant acted unreasonably under the circumstances, even though
the conduct of the arresting officer himself was reasonable.
The warrant at issue, which was ten years old at the time, had
the same birth month, but a different birth day and year. The
first name on the warrant was a variant spelling of defendant’s
first name. We concluded that suppression is required and,
consequently, reversed the conviction.
A-1838-07T 04-12-10
This appeal required us to determine whether evidence found
during the search incident to defendant's arrest should have
been suppressed because the dispatcher who incorrectly informed
the arresting officer that there was an outstanding arrest
warrant acted unreasonably under the circumstances, even though
the conduct of the arresting officer himself was reasonable.
The warrant at issue, which was ten years old at the time, had
the same birth month, but a different birth day and year. The
first name on the warrant was a variant spelling of defendant’s
first name. We concluded that suppression is required and,
consequently, reversed the conviction.
Wednesday, April 14, 2010
State of New Jersey v. J.G. (A-44-08)
State of New Jersey v. J.G. (A-44-08) 4-7-10
The cleric-penitent privilege applies when, under the
totality of the circumstances, an objectively
reasonable penitent would believe that a communication
was secret, that is, made in confidence to a cleric in
the cleric’s professional character or role as a
spiritual advisor.
The cleric-penitent privilege applies when, under the
totality of the circumstances, an objectively
reasonable penitent would believe that a communication
was secret, that is, made in confidence to a cleric in
the cleric’s professional character or role as a
spiritual advisor.
New Jersey Division of Youth and Family Services v. M.C. III In the Matter of M.C. IV and N.C. (A-96/97-08)
New Jersey Division of Youth and Family Services v.
M.C. III
In the Matter of M.C. IV and N.C. (A-96/97-08)
3-31-10
The trial court’s findings of abuse and neglect in
this case were supported by sufficient evidence,
defendant M.C. is barred by the doctrine of invited
error from contesting on appeal the admission of
documents that were admitted into evidence with his
express consent, and the trial court did not err in
relying on those documents.
M.C. III
In the Matter of M.C. IV and N.C. (A-96/97-08)
3-31-10
The trial court’s findings of abuse and neglect in
this case were supported by sufficient evidence,
defendant M.C. is barred by the doctrine of invited
error from contesting on appeal the admission of
documents that were admitted into evidence with his
express consent, and the trial court did not err in
relying on those documents.
State of New Jersey in the Interest of C.V. (A-6-09
State of New Jersey in the Interest of C.V. (A-6-09) 3-22-10
The Supreme Court has no disagreement with the
Appellate Division’s unassailable determination that
C.V.’s placements in YCS and VisionQuest do not
satisfy the intended concept of detention in Rule
5:21-3(e) to qualify for mandatory day-to-day credit.
In addition, the Court holds that the Family Part
court retains the flexibility, in appropriate cases,
to grant a probationer who violated or otherwise
imperfectly performed the conditions of probation any
sentence the court could have initially imposed.
The Supreme Court has no disagreement with the
Appellate Division’s unassailable determination that
C.V.’s placements in YCS and VisionQuest do not
satisfy the intended concept of detention in Rule
5:21-3(e) to qualify for mandatory day-to-day credit.
In addition, the Court holds that the Family Part
court retains the flexibility, in appropriate cases,
to grant a probationer who violated or otherwise
imperfectly performed the conditions of probation any
sentence the court could have initially imposed.
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