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Monday, October 29, 2012

No automatic right for DWI defendant to inspect inside of police station State v Carrero State v Baluski

No automatic right for DWI defendant to inspect inside of police station State v Carrero
State v Baluski  
A-3232-11T3/ A-4319-11T3 (CONSOLIDATED) 
The court reviewed discovery orders separately issued in these two DWI cases authorizing defense counsel and/or defense experts to inspect and photograph rooms within the police stations where their respective clients provided breath samples on the Alcotest device in order to verify that the tests were properly administered.

In Carrero, such access was granted to help ascertain whether devices emitting radio frequency interference (RFI) had been located in the station within 100 feet of the testing area. In Baluski, such access was granted to help ascertain whether the interior layout of the station physically prevented defendant from being observed for the required twenty minutes before testing.
The court reversed the discovery orders because neither defendant has shown a reasonable justification to conduct the requested inspection.

The court concluded that Carrero's request is insufficient in light of the Supreme Court's binding legal and evidentiary determination in State v. Chun, 194 N.J. 54, 89, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), that the Alcotest is designed in a manner that is " "well shielded from the impact of any potential RFI," and also in light of the State's countervailing security interests disfavoring routine civilian access to the interior of a police station.
The court concluded that Baluski's request is likewise insufficient because he has presented no affirmative basis to believe that an officer failed to observe him for the twenty pre-testing minutes required by Chun, supra, 194 N.J. at 79, and also in light of the State's countervailing security interests.

J.D. VS. M.A.D. A-2229-11T4

 J.D. VS. M.A.D.
We review a wife's appeal of that portion of a domestic
violence final restraining order entered against her husband,
granting him exclusive possession of their marital home and
temporary custody of their two children. Because that order
denied the victim of domestic violence temporary custody of her
children, contrary to the statutory presumption contained in
N.J.S.A. 2C:25-29b(11), and restrained her from her home without
statutory authorization, we reverse.

State of New Jersey v. Stanley Cliff Smith, a/k/a Jerry Johnson (A-68-10;

 State of New Jersey v. Stanley Cliff Smith, a/k/a
Jerry Johnson (A-68-10; 066806)
The question of suppression of the telephone records
and the evidence developed from those records involves
a two-step analysis, involving both the inevitable
discovery doctrine and the independent source rule.
The independent source here is the murder weapon once
that was recovered, the police would, through their
normal investigatory steps, have inevitably been led
to defendant. The Appellate Division concluded
correctly that the trial court should not have granted
the motion to suppress. In addition, the Court finds
no prosecutorial misconduct warranting a new trial.

State v. Joseph Schubert, Jr. (A-15-11; 068149)

State v. Joseph Schubert, Jr. (A-15-11; 068149)
The trial court’s action in amending defendant’s
judgment of conviction to add community supervision
for life after had had fully completed his sentence
violated the constitutional prohibition against double
jeopardy.  10-22-12 

Sunday, October 28, 2012

Right to Counsel Not Established by Desire to Speak with Mother. State v. Diaz-Bridges 208 NJ 544 (2012)

25.   Right to Counsel Not Established by Desire to Speak with Mother.  State v. Diaz-Bridges 208 NJ 544 (2012)
     Because neither defendant’s statements about his desire to speak with his mother nor any of his other statements were assertions of his constitutionally-protected right to silence, the suppression of any portion of his confession was in error.
1. To determine whether a defendant invoked the right to remain silent, the Court employs a totality of the circumstances approach that focuses on the reasonable interpretation of defendant’s words and behaviors. If the suspect’s invocation of the right to remain silent is clear and unambiguous, it must be scrupulously honored. If, however, the invocation is equivocal or ambiguous, leaving the investigating officer reasonably unsure whether the suspect was asserting that right, the Court has not required that the interrogation cease, but has instead permitted officers to clarify the ambiguous words or acts. Because both the words used and the suspect’s behaviors form part of the inquiry into whether the officer should have reasonably believed that the right was being asserted, the inquiry demands a fact-sensitive analysis. When the trial court’s factual findings are based only on its viewing of a recorded interrogation that is equally available to the appellate court, the appellate court may consider the recording itself and deference to the trial court’s interpretation is not required.

2. Although the mere request by an adult to speak with a parent does not equate to an invocation of the right to remain silent, the totality of the circumstances approach implicates considerations other than the suspect’s words, including changes in demeanor and emotional responses to questions about a crime. There is no basis on which to conclude, merely because a suspect responds to a question by weeping or moaning, or with other changes in behavior, that he or she intends to invoke the right to silence. Although those behaviors form part of the larger mosaic of the circumstances to be considered, none of them taken alone is a sufficient indication of a decision to invoke the right to silence that the immediate cessation of the interrogation must follow.  

3. Considering the totality of the circumstances, defendant did not invoke his right to silence. Defendant willingly agreed to speak with the police on multiple occasions. Although when confronted with inconsistencies in his various stories, defendant’s demeanor changed and he began to weep, one cannot reasonably equate that response with the invocation of any right. Nor is his request to speak with his mother of constitutional significance. Nothing in the words that defendant used suggested that he was asking for the questioning to stop or intended to invoke his right to silence. When defendant did clarify the reasons for the request, he told the detectives that he wanted to be the first to tell his mother what he had done. He repeatedly told them that he was willing to continue speaking with them. As a result, his requests to speak with his mother cannot be interpreted to have been a desire to secure her advice about the waiver of his rights or an assertion of silence pending the grant of permission to speak with her.
4. Contrary to the trial court’s findings, the record does not support a finding that defendant was overborne by exhaustion or psychological stress, unfairly pressured, or told that he was required to answer the interrogators questions. Although the appellate panel found that defendant’s statement at six hours and five minutes sufficed to invoke the right to silence, there is nothing in those words that differed from his earlier assertions. Although the panel relied on defendant’s statement that he wanted to go home, that assertion was made when he was alone in the interrogation room and there is no indication that the detectives were aware of that statement.  
5. Defendant’s requests to speak with his mother sprang from the very understandable desire to tell her what he had done before she heard it from the police and to hear her words of comfort. Those requests, based on all of the circumstances, did not at any time constitute defendant’s invocation of his right to silence.

Police can’t search apartment after DV 911 call if no danger. State v. Edmonds 211 NJ 117 (2012)

22 Police can’t search apartment after DV 911 call if no danger.
State v. Edmonds 211 NJ 117 (2012)
          In responding to a 9-1-1 report of possible domestic violence, once the police officers found that there was inadequate evidence to corroborate the 9-1-1 report and determined that the parties’ safety was not an issue, there was no objectively reasonable basis to search the residence under either the community- caretaking or emergency-aid exceptions to the warrant requirement and the evidence obtained through the  warrantless search must be suppressed.
1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution guarantee the right of the people to be secure against unreasonable searches and seizures, and state that no warrants shall issue except upon probable cause. Under New Jersey case law, warrantless searches, particularly of a home, are presumptively invalid and the State must establish that such a search was justified by an exception to the warrant requirement, such as the emergency-aid doctrine or the community-caretaking doctrine. 

2. The emergency-aid doctrine permits officials to enter a dwelling without a warrant to protect or preserve life, or to prevent serious injury. The three-part test for determining whether a warrantless search is justified by the emergency-aid doctrine was set forth in State v. Frankel. The test inquired whether 1) the official had an objectively reasonable basis to believe that an emergency required him to provide immediate assistance to protect or preserve life or prevent serious injury; 2) the official’s primary motivation for entry into the home was to render assistance, not to find and seize evidence; and 3) there was a reasonable nexus between the emergency and the area to be searched. Because the United States Supreme Court has held that the subjective motivation of a police officer is irrelevant and the appropriate question is whether, viewing the circumstances objectively, the actions of the officer were justified, the Court aligns New Jersey’s jurisprudence with federal law and eliminates the second part of the test, leaving only the two objective inquiries. The Court cautions that the emergency-aid doctrine, particularly when applied to the entry of a home, must be limited to the reasons and objectives that prompted the need for immediate action. 

3. Here, officers responded to a 9-1-1 report of possible domestic violence involving a gun at Richardson’s home. Neither the 9-1-1 caller’s identity nor the information he provided were corroborated, and the United States Supreme Court has cautioned that there is no automatic firearm exception to the established reliability analysis of an anonymous tip. Reviewing the facts of the case, the Court finds that police had a duty to look behind the denials by Richardson while her son remained potentially in jeopardy in the apartment, and it does not question the officers’ decision to enter the home to assure the boy’s safety. The Court assumes that the detention and frisk of Edmonds also were proper. However, the Court finds that once there was no longer an objective basis to believe that an emergency was at hand, the privacy interests of the home were entitled to the highest degree of respect. At that point, the police needed to obtain a search warrant to proceed any further. The State did not overcome the presumption that the warrantless search of the residence was unreasonable. 

4. In determining whether the community-caretaking exception to the warrant requirement justified the search of Richardson’s home, the Court acknowledges that police officers provide a wide range of social services outside of their traditional law enforcement and criminal investigatory roles, including protecting the vulnerable from harm and preserving property. In performing these tasks, there is not time to acquire a warrant when emergent circumstances arise and an immediate search is required to preserve life or property. In Bogan, the Court found justified by the community-caretaking exception an officer’s decision to enter an apartment in which an alleged sexual assault of a minor had occurred for the purpose of speaking on the telephone with the parent of a child who answered the door. However, Bogan did not involve a search for evidence or a weapon in a home. Here, the officers investigated and failed to corroborate the domestic violence report, thereby fulfilling their community-caretaking function. If the officers wished to search the apartment for a gun, they had to apply for a warrant supported by probable cause. The findings of the trial court that the police conducted a home search that exceeded the permissible boundaries of the community-caretaking doctrine are supported by sufficient credible evidence in the record.

Police use of GPS device on car violates 4th Amendment United States v Jones 131 S. Ct. 3064 (2012)

         The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.  GPS not permitted without a warrant. 
       (a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.  
(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165; Soldal v. Cook County, 506 U. S. 56. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position.  
c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below

Police Could Search Car Involved in Robbery Without a Warrant. State v. Minitee 210 NJ 307 (2012)

Police Could Search Car Involved in Robbery Without a Warrant.  State v. Minitee 210 NJ 307 (2012) 

       Under the circumstances of this case, the trial court correctly denied the defendant’s motion to suppress because the warrantless search of the SUV that was involved in the robbery fit within the scope of the automobile exception to the search warrant requirement.
Under the circumstances of this case, the trial court correctly denied the defendants’ motion to suppress because the warrantless search of the SUV that was involved in the robbery fit within the scope of the automobile exception to the search warrant requirement.

1. The United States Constitution and the New Jersey Constitution guarantee an individual’s right to be secure against unreasonable searches or seizures. A search conducted without a warrant is presumed to be invalid. There are exceptions to the warrant requirement, and the State bears the burden of establishing by a preponderance of the credible evidence that one of the exceptions applies. Only two exceptions are pertinent to this matter—the search incident to arrest exception and the automobile exception. With regard to search incident to arrest, when police place an individual under arrest, they may search his person and the area within his immediate grasp. In the automobile context, New Jersey restricts the scope of the search to the area from which an individual may seize a weapon or destroy evidence. The search in this case cannot be sustained as one incident to Minitee’s arrest. It can only withstand challenge if its circumstances bring it within the scope of the automobile exception.  

2. The New Jersey Constitution provides citizens with greater protections than its federal counterpart. Under New Jersey law, three factors are considered before applying the automobile exception to the warrant requirement: 1) whether the stop was unplanned and unforeseen--the police must have no advance knowledge of the events to unfold so that they cannot create the exigency; 2) whether police had probable cause to believe the automobile contained evidence of criminality; and 3) whether exigent circumstances made it impractical to obtain a warrant.  

3. The Appellate Division based its conclusion that exigent circumstances were lacking in this case on State v. Pena-Flores, 198 N.J. 6 (2009), which discussed facts that can contribute to the presence of exigent circumstances, such as the time of day, location of the stop, unfolding events establishing probable cause, whether it would be safe to leave the car unguarded, and others. However, the discussion in Pena-Flores was not intended to provide an exhaustive list and was focused on the facts of that case. In this case, other facts demonstrate that police were confronted with exigent circumstances. These include an armed robbery, at least two perpetrators on the run who were possibly armed, a search for them that spanned several municipalities, and an attempt to find a discarded weapon before a bystander was injured or it was taken and hidden for future criminal activity. Additionally, the site where the SUV came to rest was poorly lit and not amenable to a thorough search, and the officers had no assurance that the perpetrators on the run were not in the vicinity and able to fire at them. Because the facts of Pena-Flores are distinguishable from this matter, its legal principles are not dispositive of this case.  

4. State v. Martin, 87 N.J. 561 (1981), is instructive. In Martin, police located a car involved in a robbery and could see in the car a glove that matched the description of a glove worn by one of the robbers. The police had the car towed to the station and searched it without a warrant. The Court upheld the search, explaining that the suspected robbers were at large, lighting where the car was discovered was dim, exigency was heightened by the fact that police were actively involved in an ongoing investigation shortly after the robbery and near to where it occurred, and there was an urgent need to ascertain whether the car contained evidence of the armed robbery before the suspects could leave the area or destroy or dispose of other evidence.  

5. In this case, it is not dispositive that the vehicle had been at police headquarters for some time before it was searched. The difficulties the officers faced were exacerbated by the multiple sites that had to be examined for clues, the critical need to locate the handgun, and the fact that events were unfolding close to midnight in the dead of winter. The officers’ actions were reasonable under the circumstances.  

The judgment of the Appellate Division was REVERSED, and the defendants’ convictions were REINSTATED.

Police Cannot Search Home Based on Noise Complaint. State v. Kaltner 210 NJ 114 (2012)

State v. Kaltner 210 NJ 114 (2012) 

The Court considers whether the trial court correctly suppressed drug evidence found in a bedroom during a warrantless search of a residence by police officers who were responding to noise complaints.

The defense disputed the officers’ version of the events, arguing that the party was small, and that the officers searched the entire house and forcibly entered the bedrooms, including Kaltner’s, by kicking down locked bedroom doors. The judge found credible Officer Camacho’s testimony about the size and scope of the party and the volume of noise. The judge also found that the unidentified adult male who answered the door invited the officers at least into the common area of the home. However, the judge suppressed the drug evidence after concluding that the officers unlawfully extended their search beyond entry into the first floor main living area. The judge explained that any number of methods could have been employed by the officers to locate a resident of the premises that would not have required invading the private areas of the home.

The Appellate Division affirmed. 420 N.J. Super. 524 (App. Div. 2011). The panel rejected the State’s argument that by hosting a large party defendant had no expectation of privacy in the home or, in the alternative, that the officers acted reasonably in their community caretaking function to abate the noise nuisance. The panel explained that Kaltner had a reasonable expectation of privacy despite the party, which was not open to the public, therefore a search warrant grounded in probable cause was needed unless an exception to the warrant requirement applied. The panel agreed with the motion judge that the police officers’ initial entry into the premises in response to the noise complaint was lawful. The question, however, was whether, after their legitimate entry, the community caretaking exception to the warrant requirement justified the officers’ conduct in fanning out in search of those in control of the premises in an attempt to abate the noise nuisance.

The panel explained that the community caretaking exception to the warrant requirement requires a case-by-case, fact-sensitive analysis. The relevant question focuses on the objective reasonableness of the police action under the circumstances, and requires that the court balance the nature of the intrusion necessary to handle the perceived threat to the community caretaking concern, the seriousness of the underlying harm to be averted, and the relative importance of the community caretaking concern. The panel concluded that the police action in this case was not constitutionally permitted. Although the officers’ entry into the dwelling was initially justified, their subsequent action in fanning out and conducting, in essence, a full-blown search of the home was not reasonably related in scope to the circumstances that justified the entry in the first place, nor was it carried out in a manner consistent with the factors supporting the entry’s initial legitimacy. As explained by the motion judge, the objective of noise abatement could have been achieved well short of the officers’ full-scale search. For example, given the number of officers present and the fact that the offending noise emanated from the crowd itself, the officers could easily have dispersed the partiers.

After balancing the competing interests, including the important privacy interest in one’s home, the breadth and extent of the invasion of the entire premises, the limited nature of the community caretaking concern, and the relatively low threat posed in light of the available less-drastic options, the panel concluded that Officer Camacho was not lawfully in the hallway outside Kaltner’s bedroom when he viewed the evidence, and the plain-view doctrine did not excuse his entry into the bedroom and seizure of the drugs.

HELD: The decision of the Appellate Division is affirmed substantially for the reasons expressed in Judge Parrillo’s opinion. Because the police officers’ warrantless search of the home after they were called to address a noise complaint was not objectively reasonable, the evidence obtained during the search was properly suppressed.
The judgment of the Appellate Division is AFFIRMED.