The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency.

State v. Cesar Albert Vargas (A-56-11) (069449)

Argued November 5, 2012 -- Decided March 18, 2013

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

In this appeal, the Court must decide whether, consistent with the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, the community-caretaking doctrine authorizes the police to conduct a warrantless entry and search of a home to check on the welfare of a resident in the absence of the resident’s consent or an objectively reasonable basis to believe that there is an emergency.

2 Olaya called 9-1-1 and three Vineland police officers were dispatched to the address for a “welfare check.” The officers observed that Vargas’s mailbox was full, his Jaguar was covered in dust, and the car’s tires were deflated. No one answered when the officers knocked on Vargas’s door. The officers contacted dispatch and confirmed that no “calls for service” – such as a call for an ambulance or the police – had come from or been directed to Vargas’s apartment. The officers ultimately entered Vargas’s apartment because they said they “had reasons to fear for his safety.” They found no one home and no signs of foul play. In the living room they saw a six-to-eight-inch jar containing what appeared to be marijuana. Olaya opened kitchen cabinets and drawers and found what “appeared to be two canning jars full of marijuana.” A warrant was then secured to search the apartment.

Vargas was indicted for various crimes involving money laundering, possession with intent to distribute marijuana, unlawful possession of firearms, and other offenses. Vargas moved to suppress the evidence on the ground that the police entered and searched his apartment in violation of the warrant requirement. The trial court agreed and suppressed all evidence seized. The court specifically rejected the State’s argument that the community-caretaking doctrine justified the warrantless search, finding that there was no objectively reasonable basis to believe that Vargas’s life or well-being, or the community’s safety was in jeopardy. The trial court determined that there were no “exigent circumstances” to justify the warrantless search of Vargas’s home.

In an unpublished opinion, the Appellate Division reversed, holding that the warrantless search conformed to the community-caretaking doctrine, which it found had been extended to home searches, and that the search was based on “a legitimate concern for [Vargas’s] welfare.” The Supreme Court granted defendant’s motion for leave to appeal. 209 N.J. 99 (2012).

HELD: The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency.

1. “The right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures” is an essential guarantee of both the Fourth Amendment and the State Constitution. The warrant requirement protects an individual in his home from official intrusion whether the purpose of the search is to further a criminal investigation or the government’s enforcement of an administrative regulation. Because a warrantless search of a home is presumptively invalid, the State bears the burden of establishing that such a search falls within one of the few “‘well-delineated exceptions’ to the warrant requirement.” State v. Frankel, 179 N.J. 586, 598 (1978). (pp. 9-15)

2. Courts consider Cady v. Dombrowski to be the origin of the community-caretaking doctrine as an exception to the warrant requirement. 413 U.S. 433, 441 (1973). Although the Supreme Court in Cady recognized law enforcement’s “community caretaking functions” in the context of an automobile search, it never suggested that community-caretaking responsibilities constituted a wholly new exception to the warrant requirement that would justify the warrantless search of a home. Indeed, the Cady Court distinguished between automobile and home searches. The United States Supreme Court has not referenced “community caretaking functions” as an exception to the warrant requirement outside of an automobile search. The United States Supreme Court has never spoken of a community-caretaking exception to the warrant requirement that would allow the warrantless entry of a home absent some exigency. (pp. 15-20)

3. At first, the New Jersey Supreme Court narrowly construed Cady. In one case, the Court concluded that although the police were acting in a community-caretaking role in Cady, the validity of the warrantless search there was saved by exigent circumstances. In another, the Court specifically found that the community-caretaking doctrine could not be invoked to justify the warrantless entry into a private residence. Since then, the Court has applied the community-caretaking doctrine outside of the automobile-impoundment context. But when it has done so to justify a warrantless entry or search, the factual scenarios involved exigent circumstances – circumstances requiring immediate police action. Without the presence of consent or some species of exigent circumstances, the community-caretaking doctrine is not a basis for the warrantless entry into and search of a home. (pp. 21-26)

4. The United States Courts of Appeals have split on whether the community-caretaking doctrine can justify a warrantless search of a home, but no circuit court suggests that the warrantless entry of a home is permissible in the absence of some form of exigency. The present case comes before the Supreme Court because New Jersey case law has blurred the distinction between the community-caretaking and emergency-aid doctrines. In performing community-caretaking tasks, police officers must comply with the dictates of the Fourth Amendment and Article I, Paragraph 7 of the State Constitution. However, in carrying out their community-caretaking responsibilities, police officers may not have time to secure “a warrant when emergent circumstances arise and an immediate search is required to preserve life or property.”State v. Edmonds, 211 N.J. 117, 141 (2012). In such circumstances, a warrant is not required to conduct a search. (p. 26-31)

5. Under this State’s jurisprudence – outside of the car-impoundment context – warrantless searches justified in the name of the community-caretaking doctrine have involved some form of exigent or emergent circumstances. In this case, the trial court applied the correct legal standard and sufficient credible evidence in the record supports its decision. The police did not have an objectively reasonable basis to believe that an emergency threatening life or limb justified the warrantless entry into Vargas’s apartment. The Appellate Division erred by concluding that the community-caretaking doctrine justified the warrantless search of Vargas’s home, even in the absence of a “compelling need for immediate action.” The seizure of evidence from Vargas’s home violated the Fourth Amendment and Article I, Paragraph 7 of the State’s Constitution and must be suppressed. (pp. 31-37)

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

Police seeing defendant smoking joint in open door justified the warrantless entry into defendant’s apartment and the seizure of the marijuana cigarette.

State v. Walker  (A-49-11) 

 Decided April 10, 2013

RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court considers the warrantless entry into defendant Rashad Walker’s apartment and whether police officers, who saw defendant smoking a marijuana cigarette during a brief interaction with him, had probable cause to arrest the defendant and seize evidence observed in plain view inside his apartment.

On March 29, 2008, acting on a tip from a reliable confidential informant that an African-American male was selling controlled dangerous substances (CDS) from an apartment in a Newark public housing project, Detective James Cosgrove and fellow undercover officers went to defendant’s apartment. The officers intended to buy CDS from defendant in order to corroborate the tip. Officer James Rios, who served as the buyer, knocked at the apartment door. An African-American man, later identified as defendant, answered it. He was smoking a hand-rolled cigarette. Cosgrove immediately recognized the burning smell of marijuana. When defendant saw that one of the officers had a police badge around his neck, he threw the cigarette into his apartment, retreated, and attempted to slam the door shut. Rios stopped the door from closing, followed defendant into the apartment, and arrested him. According to Cosgrove, he and three officers entered the apartment to prevent defendant from fleeing, destroying evidence, retrieving a weapon, or in some other way impeding his arrest for possession of marijuana. In plain view in the living room, the officers saw a plastic bag containing marijuana, envelopes of heroin stamped “Horsepower,” a plastic bag containing cocaine, a marijuana cigarette, a dark-colored plate with cocaine residue on it, a razor blade, and a digital scale.

Defendant sought to suppress evidence. The trial court denied the motion, concluding that probable cause to arrest defendant arose at the moment defendant opened the door smoking a marijuana cigarette, a disorderly persons offense. Defendant then entered a guilty plea to two counts of third-degree possession of CDS with intent to distribute and one count of third-degree possession of CDS with intent to distribute within 500 feet of public housing. The judge imposed three six-year terms, subject to a three-year period of parole ineligibility, to be served concurrently. Defendant appealed the denial of his motion to suppress and his sentence. The Appellate Division reversed the denial of defendant’s motion to suppress, holding that, as a matter of law, the circumstances did not provide a sufficient basis for the officers’ entry into defendant’s home. The Appellate Division vacated defendant’s conviction and remanded the matter to the Law Division.

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

HELD: Under the New Jersey and federal constitutions, probable cause and exigent circumstances justified the warrantless entry into defendant’s apartment and the seizure of the marijuana cigarette and all the CDS found there.

1. The warrant requirement is strictly applied to physical entry into a home because the primary goal of theFourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution is to protect individuals from unreasonable home intrusions. Accordingly, a warrantless arrest in an individual’s home is

“ ‘presumptively unreasonable.’ ” State v. Hutchins, 116 N.J. 457, 463 (1989) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)). Nonetheless, the Court has “adopted the principle that ‘exigent circumstances’ in conjunction with probable cause may excuse police from compliance with the warrant requirement.” State v. Bolte, 115 N.J. 579, 585-86 (1989). The Court must determine whether information provided by the confidential source, standing alone, is sufficient to establish probable cause. If not, the Court must determine whether the independent observations made by the police officers upon their arrival at defendant’s apartment, together with the informant’s information, give rise to probable cause. The mere fact that the informant was reliable in the past cannot itself establish probable cause. In this case, the informant’s tip lacked the requisite basis of knowledge to provide

probable cause to believe defendant possessed CDS with intent to distribute. Nevertheless, the officers observed defendant smoking a marijuana cigarette in violation of N.J.S.A. 2C:35-10(a)(4) in their presence. At that point, the officers had probable cause to arrest defendant. But despite the existence of probable cause to arrest defendant, a showing of exigent circumstances was required in order to comply with the Fourth Amendment. In making the exigent circumstances determination, courts consider many factors, including the gravity of the underlying offense for which the arrest is being made and the reasonable belief that evidence might be lost or destroyed. Therefore, in order to justify the officers’ warrantless home arrest here, the State must establish: (1) the existence of exigent circumstances, and (2) that those exigent circumstances were not police-created. (pp. 7-17)

2. Although the information contained in the tip was uncorroborated, by the time the officers knocked at the door of defendant’s apartment, subsequent events, created by defendant’s own actions, established probable cause and exigent circumstances which justified an entry into defendant’s apartment. Thus, the warrantless seizure of the marijuana cigarette and all the CDS found in defendant’s apartment was proper and permissible under the New Jersey and federal constitutions. Although the underlying offense here, possession of marijuana, is a disorderly persons offense, the circumstances indicate that the officers’ warrantless entry into defendant’s home was objectively reasonable. A limited entry was necessary to arrest defendant for the disorderly persons offense and to retrieve the marijuana cigarette. After entering, the officers saw in the living room CDS and other contraband in plain view. These items were subject to seizure as well. (pp. 17-22)

The judgment of the Appellate Division is REVERSED, defendant’s conviction is REINSTATED, and the matter is REMANDED to the Appellate Division for consideration of the sentencing argument raised by defendant.

the sixteen-month delay between the remand of the driving-while-intoxicated charge to the municipal court and the notice of trial deprived defendant Michael Cahill of his right to a speedy trial and the charge must be dismissed.

State v. Michael Cahill (A-47-11) (068727)

 Decided April 1, 2013

The Court considers whether defendant Michael Cahill’s right to a speedy trial was violated, thereby requiring the dismissal the motor vehicle charge of driving while intoxicated (DWI).

Sixteen months later, on March 17, 2010, Cahill received a letter from the municipal court stating that the motor vehicle tickets were listed for trial in April. Cahill’s attorney promptly filed a motion to dismiss the charges claiming that the delay denied Cahill his right to a speedy trial. Cahill argued that the delay, whether calculated from the date of arrest (twenty-nine months) or the date of sentence on the indictable offense (sixteen months), was egregious. Although Cahill did not claim that his ability to defend the charges was prejudiced, he explained that the anticipated loss of his driver’s license caused him to limit his employment searches to short-term positions or positions in locations that did not require him to drive to work, and that he had surrendered a job offer that would have required him to drive. He also asserted that he eventually altered his search to seek a permanent position because he believed the prosecutor had abandoned the charges. Once he received the trial notice, he returned to seeking short-term jobs with lower wages. The State responded that the delay was not uncommon for DWI cases, and the municipal prosecutor argued that he had no record of a demand from Cahill to set a trial date and that Cahill had retained his driving privileges. The municipal judge denied the motion, finding the delay lengthy but not as lengthy as in other cases. Although the judge considered the delay unexplained and attributed it to the negligence of personnel, he found Cahill’s assertions of prejudice unsupported by evidence and declined to give weight to his claims of anxiety. Cahill entered a conditional plea to the charge of DWI. His driver’s license was suspended for one year and he was ordered to attend the Intoxicated Driver Resource Program.

Cahill filed an appeal in the Law Division. The Law Division judge reversed the decision and vacated the guilty plea and DWI sentence based on the four-factor test identified by the United States Supreme Court inBarker v. Wingo, 407 U.S. 514 (1972). The court measured the delay from the sentencing date on the indictable offense to the date Cahill received the notice of trial in the municipal court (sixteen months) and found it excessive based, in part, on a 1984 Directive by Chief Justice Wilentz that established sixty days as the recommended maximum period for the disposition of a DWI charge. The court held that prejudice can be found from employment interruptions, anxiety, financial drain, and other circumstances, and it accepted Cahill’s claim that the delay caused him anxiety and financial harm. Finally, the court found that it would be counterproductive to expose Cahill to additional sanctions because he had satisfied the requirements of the sentence imposed in 2008. The Appellate Division affirmed, holding that the Law Division judge properly analyzed and applied the Barker factors. The Supreme Court granted the State’s petition for certification. 208 N.J. 601 (2011).

HELD: Applying the four-factor analysis set forth by the United States Supreme Court in Barker v. Wingo, the sixteen-month delay between the remand of the driving-while-intoxicated charge to the municipal court and the notice of trial deprived defendant Michael Cahill of his right to a speedy trial and the charge must be dismissed.

1. In 1967, the United States Supreme Court held that the right to a speedy trial, guaranteed by the United States Constitution, was a fundamental right applied to the states by the Due Process Clause of the Fourteenth Amendment. In 1972, in Barker, the United States Supreme Court established a four-factor balancing test to evaluate claims of speedy trial violations. It directed courts to consider the length of the delay, reason for the delay, assertion of the right by a defendant, and prejudice to the defendant. The Court declined to identify a deadline after which a charge would be subject to dismissal. It also did not require that a defendant demand a speedy trial or waive the right. Instead, the Court directed a case-by-case application of the four factors. With regard to the first factor, the Court held that a delay may be presumptively prejudicial and thereby trigger consideration of the other factors. The length of the delay that may be considered presumptively prejudicial depends on the circumstances of the case, including the nature of the charged offense. Once a defendant asserts a violation of the right to a speedy trial, the government is required to identify the reason for the delay. In assessing prejudice, the interests being protected are the prevention of oppressive incarceration, minimization of anxiety attributable to the unresolved charge, and limitation of the possibility of impairment of the defense. All factors are related, requiring a balancing. (pp. 11-16)

2. The right to a speedy trial extends to quasi-criminal matters pending in the municipal courts, including DWI charges. In addition to the Barker analysis, this Court has adopted various rules and directives governing prompt disposition, but it has declined to set a deadline after which the charges must be dismissed. Even the sixty-day period announced in 1984, and relied on by the Law Division judge in this case, was described as a goal rather than a bright-line rule. The Court reaffirms its adherence to the four-factor Barker analysis, recognizing that the facts of an individual case are the best indicators of whether a right to speedy trial has been violated. (pp. 16-24)

3. Cahill was charged with an indictable offense arising out of the October 27, 2007 incident. Because prosecution of the DWI charge prior to resolution of the indictable offense could have resulted in double jeopardy and the dismissal of the more serious charge, the State moved promptly. Cahill pled guilty to the indictable offense on September 19, 2008, and the court imposed sentence on November 14, 2008. The eleven-and-one-half-month gap between the initial charge and disposition of the indictable offense was reasonable. However, sixteen months elapsed between remand of the DWI charge to the municipal court and the time Cahill received notice of the first trial date, which is long enough to trigger consideration of the remaining Barker factors. The DWI charge was a straightforward quasi-criminal offense with uncomplicated legal issues and no witness-availability problems and the State offered no explanation for the delay—two factors that weigh against the State. Cahill did not take any action to trigger a trial after the remand, but a defendant does not have an obligation to bring himself to trial and Cahill promptly filed a motion after receipt of the trial notice. Although failure to assert the speedy trial right is a factor that must be considered, it does not counterbalance the lengthy and unexplained delay in this case. Finally, Cahill limited his employment options in anticipation of prosecution, and any person would experience anxiety from the existence of a pending and long-unresolved charge, particularly one that would have a dramatic effect on daily activities and the ability to earn a living. After balancing the factors, the Court concludes that the extensive and unexplained delay, coupled with the generalized anxiety and personal prejudice occasioned by the protracted resolution of this matter, violated Cahill’s right to a speedy trial. (pp. 24-29)

4. Administrative Directive #04-11, adopted in 2011, requires that the Superior Court dispose of all parts of a case before it, including municipal court matters, unless there is a compelling reason otherwise. Although there will be instances that require motor vehicle charges to be resolved separately, the Court declines to adopt a try-or-miss rule. It also cautions that a judge applying the Barker analysis must take into account the effects of the State v. Chun order addressing the scientific reliability of the Alcotest. (pp. 29-31)

5. On balance, the factors fall in favor of Cahill’s claim that, in this case, the delay deprived him of his constitutionally-guaranteed right to a speedy trial. (pp. 31-33)

The judgment of the Appellate Division is AFFIRMED.

The investigation of a home based on dog sniff was an illegal “search” within the meaning of the Fourth Amendment.

The investigation of a home based on dog sniff was an illegal “search” within the meaning of the Fourth Amendment.

FLORIDA v. JARDINES

certiorari to the supreme court of florida

---

No. 11–564. Argued October 31, 2012—Decided March 26, 2013

---

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

Held: The investigation of Jardines’ home based on dog sniff was an illegal “search” within the meaning of the Fourth Amendment. Pp. 3–10.

(a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3. Pp. 3–4.

(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreason-able governmental intrusion.” Silverman v. United States, 365 U. S. 505. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12. Pp. 4–5.

(c) The officers’ entry was not explicitly or implicitly invited. Offi-cers need not “shield their eyes” when passing by a home “on public thoroughfares,” California v. Ciraolo, 476 U. S. 207, but “no man can set his foot upon his neighbour’s close without his leave,” Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.

(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347. Pp. 8–10.

73 So. 3d 34, affirmed.

Scalia, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Sotomayor, and Kagan, JJ., joined. Kagan, J., filed a concurring opinion, in which Ginsburg and Sotomayor, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Kennedy and Breyer, JJ., joined.

State v. Kevin M. Campfield (A-43-11;

State v. Kevin M. Campfield (A-43-11; 068666) 

Defendant’s admissions in his plea colloquy satisfied the standard set by Rule 3:9-2 and established an adequate factual foundation for his guilty plea to the crime of reckless manslaughter in violation of N.J.S.A. 2C:11-4(b). 1-10-13 

State v. Don C. Shaw (A-48-11; 068741)

State v. Don C. Shaw (A-48-11; 068741)

The police did not have a reasonable , articulable

suspicion of criminal activity to justify the

investigatory detention, which was based on nothing

more than a non-particularized racial description of

the person sought. The parole warrant was not an

intervening circumstance that sufficiently purged the

taint from the unlawful detention. 12-13-12 

FRANK ALFANO, JR., Plaintiff-Appellant, v. MARGATE CITY, DAVID WOLFSON, CHIEF OF POLICE and THOMAS HILTNER, MUNICIPAL CLERK OF MARGATE, DOCKET NO. A-3797-11T4

« Citation
Dat

FRANK ALFANO, JR.,

Plaintiff-Appellant,

v.

MARGATE CITY, DAVID WOLFSON,

CHIEF OF POLICE and THOMAS

HILTNER, MUNICIPAL CLERK OF

MARGATE,

DOCKET NO. A-3797-11T4

September 25, 2012

Argued September 12, 2012 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, Docket No. L-141-12.

Donald M. Doherty, Jr., argued the cause for appellant.

John Scott Abbott argued the cause for respondents.

PER CURIAM

Plaintiff Frank Alfano, Jr. made a request under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA), for police reports generated in connection with an incident involving a bicyclist falling from the Margate Bridge. Defendant Margate City denied the request and plaintiff instituted an action to secure the production of the records sought. After oral argument on the return date of an order to show cause, the trial judge dismissed the complaint. We reverse and remand for further proceedings consistent with this opinion.

I.

The relevant facts are not in dispute. On November 18, 2011, a newspaper reported that a bicyclist had "tumbled over the railing on the Margate Bridge." The bicyclist fell onto the roof of a building and was injured.

On November 21, 2011, plaintiff filed an OPRA request for all police and fire department reports generated by Margate City concerning this incident. The Margate Fire Department complied with this request and provided plaintiff with a copy of a November 18, 2011 report. The report did not identify the bicyclist, but it did indicate that the Department had responded to a report that "a male had jumped off the bridge." The report further stated that, after the "male had jumped on the roof of a building under the bridge," he was "subdued by police and handcuffed."

The Margate Police Department denied plaintiff's request for a report it had prepared concerning this incident. Upon the advice of the county prosecutor's office, it advised plaintiff that the report he sought was exempt from disclosure because it was a "criminal investigatory record" not accessible under OPRA. Plaintiff thereafter filed a complaint and order to show cause against Margate City, the Chief of Police and the City's custodian of records, alleging violations under OPRA.

After oral argument on the order to show cause, the trial judge entered an order supported by a written opinion dismissing plaintiff's complaint with prejudice. The judge reviewed the police department's report in camera. He stated that

[a] review of the records sought reveals that this investigation involves a suicide attempt. The male attempted to jump off the Margate Bridge into the water, but instead landed on the roof of a small building by a piling. The report also reveals the man's name, certain comments he made, together with names of family members, friends and witnesses.

Because the Margate Police had "concluded its investigation with no charges being filed" against any party, the judge found that the report did not constitute a criminal investigatory record that is exempt from disclosure under OPRA.

However, the judge went on to find that the report could not be disclosed because to do so would violate the reasonable expectation of privacy of the bicyclist and the individuals interviewed by the police. The judge explained that

[w]hile the law has traditionally viewed suicide and attempted suicide as a crime, any enlightened person recognizes that such a traumatic event affects more people than the principal. The Court believes that when furnishing information to an investigating police officer, anyone close to the principal, and the principal as well, did so with a reasonable expectation of privacy that the information provided would be kept confidential.

In balancing plaintiff's interest in obtaining the report and the right to privacy of the affected individuals, the judge primarily focused on

the potential harm from nonconsensual disclosure. This matter involves a suicide attempt; the man involved and his family and friends were interviewed for the police report shortly thereafter. The potential impact of a suicide attempt on this gentleman and his family is huge: disclosure of same, especially in such a small community, could have severe adverse effects on the man and his family.

Based upon these considerations, the judge found that plaintiff was not entitled to the police report because disclosure would violate the privacy expectations of the individuals referred to in the report.

In so ruling, the judge rejected plaintiff's offer, proffered for the first time during oral argument, to accept a redacted copy of the report with the names of all of the individuals and "the salacious details" of the incident redacted. While not addressed in his written opinion, at oral argument, the judge advised plaintiff's counsel that "I could give you a very heavily redacted copy here, but I don't know what value it'd be to you at all."

On appeal, plaintiff argues that the trial judge erred in dismissing his OPRA claim by refusing to provide him with a redacted copy of the police report with all of the parties' names and identifying information redacted. He requests that we reverse the order and remand the matter to the trial court to redact the report and to address his request for counsel fees.

II.

The trial judge's determinations with respect to the applicability of OPRA are legal conclusions subject to de novo review on appeal.O'Shea v. Twp. of West Milford, 410 N.J. Super. 371, 379 (App. Div. 2009).

The purpose of OPRA "'is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process.'" Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 535 (2005)(quoting Asbury Park Press v. Ocean County Prosecutor's Office, 374 N.J. Super. 312, 329 (Law Div. 2004)). In furtherance of that purpose, the Legislature has declared that "government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access . . . shall be construed in favor of the public's right of access." N.J.S.A. 47:1A-1.

OPRA defines "[g]overnment record" broadly as

any paper, . . . document, . . . data [] or image processed document, information stored or maintained electronically . . . or any copy thereof, that has been made, maintained or kept on file in the course of his or her official business by any officer, . . . agency . . . of the State or of any political subdivision thereof.

[N.J.S.A. 47:1A-1.1.]

That same statute, however, contains exemptions from the definition of government record. One of these exemptions is for a "criminal investigatory record," which is defined as "a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding." Ibid.

We have reviewed the disputed police report and we agree with the trial judge that it is not exempt from disclosure as a "criminal investigatory record." There is nothing in the record to support a finding that the police were actively investigating a crime or attempted crime when the report was prepared. No criminal charges were ever filed after the report was prepared. The report, therefore, is similar to an incident report that is regularly maintained on file, and provided to the public, by police departments.

We also agree with the trial judge that the bicyclist who was the subject of the report, and the individuals who spoke to the police, had a reasonable expectation of privacy concerning the subject matter of the report. Indeed, plaintiff conceded as much by seeking a redacted copy of the report with all personal identifying information deleted.

Under OPRA, "a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy." N.J.S.A. 47:1A-1. Our Supreme Court has recognized that, when privacy interests are implicated, in order to balance the competing interests of OPRA - the public's right to access and a public agency's duty to safeguard from public access a person's private information - the following seven factors should be applied:

(1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosures; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.

[Burnett v. Cnty. of Bergen, 198 N.J. 408, 427-28 (2009) (citing Doe v. Poritz, 142 N.J. 1, 88 (1995)).]

The trial judge correctly applied these factors in concluding that disclosure of the bicyclist's identity could have severe consequences for him and his family because of the "traumatic event" that was the subject of the report. The disclosure of the names of bicyclist's family members would also serve to reveal his identity. Thus, we believe that the judge correctly held that there was "no overarching need for a citizen to obtain this individual and his family's names."

Where we part company with the trial judge, however, is with his decision to bar access to the entire report rather than provide plaintiff with a redacted copy that would have deleted all personal identifying information. While plaintiff originally sought the entire report, he eventually agreed to accept a redacted version with all names and information that might identify the bicyclist deleted.

We disagree with the judge's conclusion that plaintiff could not be given a redacted report. While finding that the report raised privacy concerns, the judge nevertheless advised plaintiff, on the record and in his written opinion, that the report concerned a suicide attempt and the judge went on to describe some of the information in the report. Thus, the judge implicitly recognized, and we hold, that there was information in the report that could be publicly disclosed without adversely affecting the privacy rights of any person.

In the face of the statutory requirements that "government records shall be readily accessible [,]" N.J.S.A. 47:1A-1, and that "any limitations on the right of access . . . shall be construed in favor of the public's right of access[,]" ibid., plaintiff should have been provided with a copy of the report with the names of the individuals, together with any personal information that could be used to identify them, redacted. Accordingly, we reverse the order dismissing plaintiff's complaint and remand for the trial court to redact the report to remove this identifying information. On remand, the court shall also address plaintiff's request for counsel fees. We do not retain jurisdiction.

Reversed and remanded.

STATE OF NEW JERSEY, Plaintiff-Appellant, v. JOSHUA R. EASTMAN, DOCKET NO. A-3436-11T1

« Citation
Data

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOSHUA R. EASTMAN, 

DOCKET NO. A-3436-11T1 October 17, 2012

Submitted September 19, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 11-04-001114.

Richard T. Burke, Warren County Prosecutor, attorney for appellant (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

Eric M. Mark, attorney for respondent.

PER CURIAM

By leave granted, the State appeals from an August 11, 2011 Law Division order suppressing evidence, illegal drugs, seized during a warrantless search of defendant's motor vehicle following a one-vehicle accident. The State argues that under the circumstances presented, the search was reasonable. We disagree, and affirm.

I.

According to the State's proofs, on the morning of October 9, 2010, defendant Joshua Eastman had a one-vehicle accident while operating his pickup truck in White Township, Warren County. The truck rolled on its roof and into a telephone pole, exposing live electrical wires across the roadway.

New Jersey State Trooper Michael Ferrara responded to the scene. After securing the area from traffic, Trooper Ferrara located defendant, who was speaking with emergency personnel from the first-aid squad. When asked for his driving credentials, defendant said the documents were in his truck, which was inaccessible. When asked what happened, defendant explained he swerved to avoid a deer and must have over-corrected.

Upon the trooper observing that defendant was shaky, and had constricted pupils with track marks on his arm, defendant was administered field sobriety tests. Based upon the test results, Trooper Ferrara concluded defendant had operated his vehicle under the influence of drugs and placed him under arrest. Another trooper transported defendant to the Washington Barracks while Trooper Ferrara remained at the scene awaiting the arrival of the utility crew to cut the power to the downed wires.

About a half-hour later, the vehicle became accessible. When Trooper Ferrara approached defendant’s truck he found a wallet on the ground. He opened it and found defendant’s driver’s license, but no insurance card or registration. Because he needed these other documents to properly complete his accident report, Trooper Ferrara searched defendant’s glove compartment where he found not only defendant’s credentials but also what appeared to be illegal drugs in plain view. Laboratory analysis later confirmed the substance to be cocaine. Following his indictment for one count of possession of a controlled dangerous substance, defendant moved to suppress the evidence claiming the search was illegal.

II.

Under the New Jersey and United States Constitutions, warrantless searches and seizures are presumptively invalid. State v. Pineiro, 181 N.J. 13, 19 (2004). In the absence of a warrant, the State bears the burden of demonstrating that the search falls within one of the few defined exceptions to the warrant requirement. State v. Maryland, 167 N.J. 471, 482 (2001).

The constitutional protections prohibiting unreasonable searches and seizures "impose a standard of reasonableness on the exercise of discretion by government officials to protect persons against arbitrary invasions." State v. Maristany, 133 N.J. 299, 304 (1993). "Indeed, the touchstone of the Fourth Amendment is reasonableness." State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed.2d 695 (1984).

Although there is a lessened expectation of privacy attendant to the interior of an automobile, in the absence of one of the recognized exceptions to the constitutional requirement of probable cause and a warrant, the evidence seized must be suppressed.State v. Patino, 83 N.J. at 1, 7 (1980).

In State v. Boykins, 50 N.J. 73, 77 (1967) our Supreme Court stated, "[a] traffic violation as such will justify a search for things related to it. So, for example, if the operator is unable to produce proof of registration, the officer may search the car for evidence of ownership, or if the officer has reason to believe the driver is under the influence of liquor or drugs, he may search the car for alcohol or narcotics[.]" (citations omitted). However, in Patino, supra, 83 N.J. at 12, the Court made clear that a search for evidence of ownership must be "confined to the glove compartment or other area where a registration might normally be kept in a vehicle." (quoting State v. Barrett, 170 N.J. Super. 211, 215 (Law Div. 1979)).

In State v. Jones, 195 N.J. Super. 119 (App. Div. 1984), where we addressed circumstances very similar to the facts presented here, the defendant was the operator of an automobile which overturned, resting on its roof. Police officers were able to extricate the defendant from the automobile by prying open the driver's door. Id. at 121. While the defendant was standing outside of the automobile which was still resting on its roof, an officer asked the defendant to produce his credentials. Ibid. The defendant produced only his driver's license, indicating that the registration and insurance card were inside the automobile. Ibid. After a tow truck operator restored the automobile to its normal position, the officer entered the automobile to search for evidence of ownership and the insurance card. Ibid. At that point, the officer observed illegal drugs in an unzippered leather overnight bag on the backseat. Id. at 122. We identified "the crucial issue in the case, therefore, [to be] whether the police officer had a right to enter the car to search for the registration and insurance card before affording defendant a reasonable opportunity to obtain them from the vehicle himself." Ibid.We ruled the officer did not, interpreting "Boykin and Patino as requiring a showing that defendant was either unable or unwilling to produce the registration and insurance card" to render the search legal. Id. at 123.

We provided further guidance regarding motor vehicle searches in State v. Lark, 319 N.J. Super 618, 627 (App. Div. 1999), aff’d,163 N.J. 294 (2000):

New Jersey law prescribes exactly what an officer should do when, during a traffic stop, a driver fails to present his license and then lies about his identity. The officer may either detain the driver for further questioning until he satisfies himself as to the driver's true identity, see State v. Dickey, 152 N.J. 468, 476-78 (1998), or arrest the driver for operating a vehicle without a license, see N.J.S.A. 39:3-29, 39:5-25; see also State v. Campbell, 53 N.J. 230, 237 (1969). The officer may not, however, absent probable cause to believe that a further offense has been committed, enter the vehicle to look for identification.

Similarly, in State v. Carty, 170 N.J. 632, 635 (2002), our Supreme Court held "that, in order for a consent to search a motor vehicle and its occupants to be valid, law enforcement personnel must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle."

III.

The State claims that Trooper Ferrara properly opened the glove compartment of defendant's truck, to search for defendant’s registration and insurance card. The State argues it was appropriate that defendant was taken back to the barracks for a breathalyzer test and/or urine screen, which needed to be administered "within a reasonable time," State v. Tischio, 107 N.J. 504, 506 (1987), and the truck needed to be righted from its upside-down position and live wires cleared away before anyone could enter the truck. Hence, the State argues, it was reasonable not to give defendant a chance to retrieve the credentials himself. Once the trooper opened the glove compartment, he saw what appeared to be drugs and a spoon in plain view.

Defendant argues that the trooper had no legitimate reason to search the glove compartment for credentials, because he already had defendant's driver's license from his wallet and could see the truck's license plate number. The trooper also had plenty of time to verify, through his mobile data terminal, whatever he needed to find out about the truck during the hour-and a-half he was waiting for the utility crew to clear the power lines.

When defendant's vehicle became accessible, Trooper Ferrara entered the vehicle and searched the glove compartment without providing defendant the opportunity to obtain the documents. At that point, defendant was in police custody at the barracks approximately twenty minutes away and could have been escorted back to the scene in order to retrieve his documents.¹ The record gives no indication that exigent circumstances existed, necessitating immediate action. Further, Trooper Ferrara did not otherwise have an independent basis for probable cause or a reasonable articulable suspicion to search defendant's vehicle.

Similar to the circumstances in State v. Jones, supra, 195 N.J. Super. 119, Officer Ferrara asked defendant for his driving credentials, and defendant responded truthfully that the documents were in the vehicle, but he could not present them because the vehicle was inaccessible.

In her thorough ten-page opinion, Judge Ann R. Bartlett explained why the search of defendant’s glove compartment was unreasonable:

In the instant matter, prior to arresting [defendant], the [t]rooper could have used his mobile data terminal to obtain information of the vehicle’s registration. He also should have contacted police headquarters and waited for confirmation of [defendant’s] identity and vehicle registration, which theCarty court noted was the appropriate course of action for the trooper in that case. There was ample time to make such an inquiry, given the fact the [t]rooper was waiting at the scene for the arrival of [the utility truck]. The [t]rooper could have questioned (defendant) either prior to his arrest or subsequently at the police station as to the whereabouts of his driver’s license, registration certificate, and insurance card. . . . There is no indication that (defendant) would have been unwilling or unable to produce the necessary documents, if the [t]rooper had given him the opportunity to do so.

Furthermore, as the more recent cases of Carty and Lark make it clear . . . an officer needs probable cause in order to conduct a warrantless search of a vehicle for identification. Trooper Ferrara did not have probable cause or even articulable suspicion that criminal activity was afoot. He had already arrested defendant for driving while under the influence, thus defendant had no way of accessing the vehicle or destroying any evidence therein. There was no indication that defendant may have been hiding controlled substances or alcohol in the vehicle. There was no suspicion that the vehicle was stolen. There was no suggestion that defendant had provided the [t]rooper with false information regarding his identity or ownership of the vehicle. Therefore, the warrantless search of the vehicle, specifically the glove compartment, was unreasonable. All evidence seized therein must be suppressed.

Considering all of these factors, we have no occasion to disturb Judge Bartlett's findings, which are amply supported by the record. State v. Elders, 192 N.J. 224, 243 (2007) ("An appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record."). Nor do we have occasion to disturb her conclusion that the State failed to sustain its burden of demonstrating that the search falls within an exception to the constitutional requirement that police obtain a warrant before conducting a search.

Accordingly, we affirm the order on appeal and remand for further proceedings consistent with this opinion.

Affirmed and remanded.

1 "Practical convenience in aid of law enforcement administration is laudable, but it is not an objectively reasonable basis to justify 'nibbling away' at our constitutional rights." State v. Lark, supra, 319 N.J. Super. at 631.