DWI STATE v PATRICIA DRISCOLL DOCKET NO. A-5842-08T4

DWI STATE v PATRICIA DRISCOLL

DOCKET NO. A-5842-08T4

February 24, 2011

Before Judges Payne and Koblitz.

Latham & Watkins, LLP, attorneys for appellant (Scott G. Kobil and Matthew N. Gibbon, on the briefs).Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Assistant Essex County Prosecutor, of counsel and on the brief).

Defendant Patricia Driscoll appeals her second conviction of driving while intoxicated, N.J.S.A. 39:4-50.   She was sentenced to thirty days of community service, forty-eight hours of Intoxicated Driver Resource Center (IDRC) classes, and her driving privileges were revoked for two years.   Appropriate fees, fines and penalties were assessed.   On appeal, defendant argues that the Law Division erred in finding her guilty on the basis that she could not prove her defense beyond a reasonable doubt.¹  After reviewing the argument in light of the applicable law, we are constrained to agree and reverse.

At trial in the municipal court, Detective Charles Zampino of the Fairfield Police Department testified to the following facts.   At 12:24 a.m. on June 2, 2007, he observed defendant driving at a very slow rate of speed on Route 46.   Defendant then exited Route 46, and in doing so, she drove over the solid line and onto the shoulder of the roadway.   The car then made a slow, wide left turn, and the car's front tire hit the curb.   Zampino said the car then drove through a red light, stopping suddenly to make a right turn.   Zampino stopped the car and spoke to defendant.   She informed him that she came from a club where she had been dancing with friends and was now lost.

Defendant appeared disoriented, her pupils were constricted, her speech was slow and slurred, and she kept licking her lips and sticking out her tongue.   Zampino conducted road-side sobriety tests, noting that defendant swayed when walking.   Zampino found no nystagmus (involuntary eye movements thought to be brought on by alcohol intoxication ² ) after administering the horizontal gaze nystagmus test (HGN).  Defendant told him that she suffered from Lyme disease and could not perform the “walk and turn” test.   She could not stand on one foot while counting as instructed.   She was unable to recite the alphabet beginning at the letter “K.” After the “finger count” test was demonstrated by Zampino, defendant also failed two attempts at that field sobriety test.   Defendant was arrested and taken to police headquarters.

Fairfield Police Officer Christopher Nicholas testified that defendant had a zero reading on the breathalyzer.   He testified that he administered the Miranda warnings.  Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L. Ed.2d 694, 706-07 (1966).   Defendant then indicated she had slept only two and one-half hours the previous night, had Lyme disease, and was under the care of a doctor who had prescribed Paxil and Fioricet with codeine.   Defendant indicated she had most recently taken one Fioricet with codeine pill on the morning of June 1.

Nicholas testified that defendant was cooperative, polite and calm, but her coordination was poor, her face flushed and her speech slurred.   She had watery eyes and droopy eyelids.   However, he testified that her eyes were able to focus on stimuli and follow quickly.   Nicholas testified that he again administered field sobriety tests, which defendant was unable to complete successfully.   Nicholas said that he measured defendant's pupils as constricted in darkness and in room light, and they showed little to no reaction to a flashlight.   Defendant's blood pressure and temperature were at the low-normal range.   He also found no nystagmus after again administering the HGN. Nicholas, a certified drug recognition expert, testified that the combined results of all of the tests he administered indicated that defendant “was impaired and was unable to operate a motor vehicle safely due to the fact that she was under the influence of a narcotic.”

Defendant had in her possession a small pill bottle with six blue-gray tablets.   Her urine test revealed the presence of codeine and butalbital with no quantitative analysis.   She stated that she was under the care of Dr. Nabil Yagzi, who prescribed the medication she took to treat headaches.   She said her prescription for Fioricet with codeine, the blue-gray tablets, called for one pill every four hours as needed.

Defendant testified to the following facts.   She was “fast dancing” with her friends at a club that night.   She felt fine when leaving the club, but had little memory of what followed.   She recalled being disoriented.   She was diagnosed with Lyme disease in 1990 and never made a full recovery.   Her symptoms include headaches, arthritis and joint pain, memory loss, disorientation, flu-like symptoms, difficulty sleeping, and trouble staying awake.

Dr. Yagzi, defendant's treating doctor and an expert in neurology, was unavailable to testify in municipal court as he was attending a funeral outside of the country.   He was allowed to testify at the trial de novo in the Law Division.   R. 3:23-8(a).   Dr. Yagzi testified to the following facts.   Defendant suffered from chronic intractable headaches, which upon occasion caused her to become disoriented and lose her balance.   Beginning in 1998, he had prescribed Fioricet with codeine (also containing caffeine, acetaminophen and butalbital) every four to six hours as needed.   A few years before he added Paxil, to be taken once a day at bedtime.   Paxil may enhance the effects of both the codeine and butalbital contained in Fioricet with codeine.

Although the Physicians' Desk Reference ³ indicates that Fioricet with codeine may impair a patient's mental and/or physical abilities required for driving, Dr. Yagzi concluded that it would not affect defendant's driving if taken as prescribed because her brain had adapted to the medication regimen through long-term use.   He said the codeine would be detectable in urine for up to forty-eight hours and the butalbital for up to seven days.

Dr. Yagzi believed all of defendant's symptoms at the time of the motor vehicle stop on June 2 were due to Lyme disease, fatigue and potential presyncope (which he said was a condition of near-fainting including symptoms of dizziness, disorientation, confusion, loss of balance and mild cognitive dysfunction).   The blood pressure and temperature results were normal for defendant.   Although defendant was successfully treated for Lyme disease, she still suffered from poor balance, lack of coordination and clumsiness, which worsened when she was fatigued or suffering from a headache.

Although initially deciding to let Dr. Yagzi testify in the proceedings in the Law Division so the court could “rule whether, in fact, he produce[d] a reasonable doubt or not with regard to the allegations alleged against defendant,” the court stated on June 9, 2009, after hearing Dr. Yagzi's testimony, that the defense “has the burden of proof with regard to raising the defense in this matter.”

The court gave an oral opinion on the record on June 16, 2009, finding defendant guilty of driving under the influence.   In this oral opinion the court discussed Dr. Yagzi's testimony, stating,

On balance I don't find the doctor's testimony credible.   While there were certain symptoms that were exhibited by the defendant at the time of the traffic stop, this expert could not render an opinion beyond a reasonable doubt that ․ the symptoms were caused by a medical condition and not by the ingestion of a controlled dangerous substance.

․

The observations of the defendant are common in patients with fatigue, headaches, as well as those with alcohol or drug intoxication.   However, the symptoms exhibited may have been the result of use or ingestion of a controlled dangerous substance as confirmed by the lab reports, which are entered into evidence.   Therefore, as a reasonable doubt exists as [to] the [etiology] of the observed symptoms, the defendant cannot sustain the burden of proving beyond a reasonable doubt the defense offered in this case.

[Emphasis added.]

Defendant raises the following arguments on appeal:

THE LAW DIVISION COMMITTED PLAIN ERROR BY IMPOSING ON DEFENDANT THE BURDEN TO PROVE HER INNOCENCE BEYOND A REASONABLE DOUBT, AND BECAUSE THE LAW DIVISION CONCLUDED THAT REASONABLE DOUBT EXISTED, DEFENDANT'S CONVICTION FOR DRIVING WHILE INTOXICATED SHOULD BE OVERTURNED

A.  Standard of Review

B. The Law Division applied an erroneous burden of proof when it imposed upon Defendant the burden of proving her case beyond a reasonable doubt.

C. By incorrectly imposing the burden of proof on Defendant, the Law Division's decision constitutes plain error.

D. Defendant's conviction for driving while intoxicated should be vacated and Defendant should be acquitted on this charge because the State failed to meet its burden of proof beyond a reasonable doubt.

1. Reasonable doubt exists from the record

2.  Because reasonable doubt exists, Defendant must be acquitted

The State argues that because the court indicated at one point that it did not find Dr. Yagzi credible, it did not intentionally shift the burden of proof but was merely somewhat confusing in its verbiage.   Thus, the State argues that, at most, we should remand the matter to the Law Division “so that the court may clarify its findings.”   We agree with the State that the trial court intended to find defendant guilty and did so.   As the State argues, on the evidence presented, the court could have found defendant guilty beyond a reasonable doubt, using the standard of proof that our law requires.   See, e.g., State v. Snyder, 337 N.J.Super. 59, 61-62 (App.Div.2001).   The State presented sufficient evidence to sustain a guilty verdict had the fact-finder been convinced beyond a reasonable doubt of her guilt.

On the other hand, defendant presented evidence that she suffered from Lyme disease, headaches and fatigue, which could explain her poor driving and poor performance on field sobriety tests.   She had a prescription for a medication that explained the presence of drugs in her urine.   This evidence could have easily raised a reasonable doubt in the fact-finder's mind.   The fact-finder found a reasonable doubt yet convicted defendant nonetheless.   If we remand to the fact-finder for clarification, we would be inviting the court to make a finding inconsistent with its stated finding of reasonable doubt.   Findings are not formulaic phrases lacking serious import.   When the trial court finds a reasonable doubt, we accord great weight to that finding.   We do not accept that a finding of reasonable doubt is merely a poor word choice or result of some confusion in the court's mind.

Because the court incorrectly transferred the burden of proof to defendant at the end of the testimony on June 9, 2009, without objection by the defense, defendant frames her argument in terms of “plain error.”   We do not agree that a plain error analysis pursuant to Rule 2:10-2 is appropriate where the trial court shifts the burden of proof in its oral decision.   At this point the trial is over, and defense counsel is not required to interrupt the court to register an objection.   Moreover, even in a “plain error” analysis, finding defendant guilty because defendant has raised a reasonable doubt but failed to prove her defense beyond a reasonable doubt is “clearly capable of producing an unjust result.”   R. 2:10-2.   Based on the trial court's findings, defendant is not guilty of driving under the influence.

Reversed.

FOOTNOTES

1. FN1. She was also convicted in municipal court of careless driving, N.J.S.A. 39:4-97, and failure to observe traffic signals, N.J.S.A. 39:4-81.   The court merged the failure to obey traffic signals conviction into the conviction for careless driving.   Defendant does not appeal this conviction.

2. FN2. See State v. Doriguzzi, 334 N.J.Super. 530, 536-38 (App.Div.2000) (explaining that HGN tests are not generally accepted by the scientific community).

3. FN3. Physicians' Desk Reference is a reference book that lists potential side effects of prescription medication.   See Feldman v. Lederle Labs, 97 N.J. 429, 436 (1984).

PER CURIAM

Commercial DWI Refusal and General Refusal distinct statutues STATE v NUNNALLY A-6031-09T1

STATE v NUNNALLY A-6031-09T1

In this appeal we addressed the statute governing refusal by a commercial vehicle driver to submit to a breath test (CDL refusal), N.J.S.A. 39:3-10.24, and the general statute penalizing refusal to submit to a breath test (general refusal), N.J.S.A. 39:4-50.4a. We held that a charge of CDL refusal or general refusal requires, as a predicate, an arrest under the corresponding DUI statute, N.J.S.A. 39:3-10.13 or N.J.S.A. 39:4- 50. Here, where defendant was arrested under the CDL statute, N.J.S.A. 39:3-10.13, and then refused to submit to a breath test, he could not be prosecuted for general refusal, N.J.S.A. 39:4-50.4a. We also held that, because citing the wrong refusal statute is not a technical defect, R. 7:2-5, and because CDL refusal is not a lesser included offense of general refusal, R. 7:14-2, the State was precluded from amending the complaint to charge defendant with CDL refusal after the ninety-day statute of limitations expired. For future guidance, we noted that a commercial vehicle driver whose conduct violates both the CDL and general DUI statutes may be arrested and charged under either or both statutes.5-04-11

DWI reversed , pause a green light not sufficient to stop car STATE v BRACKIN, DOCKET NO. A-5994-09T2

DWI reversed , pause a green light not sufficient to stop car

STATE v BRACKIN, DOCKET NO. A-5994-09T2

Defendant-Appellant. _________________________________________________

Submitted February 3, 2011 - Decided May 4, 2011 Before Judges Wefing, Payne and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 09-097.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Franzblau Dratch, attorneys for appellant (Brian M. Dratch, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for defendant (Matheu D. Nunn, Assistant Prosecutor, on the brief).

PER CURIAM Defendant, Sean Brackin, appeals from an order of the Law

Division, following a trial de novo on the municipal court record, finding him guilty of driving while intoxicated (DWI). N.J.S.A. 39:4-50. On appeal, he makes the following arguments:

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5994-09T2

POINT I

OFFICER TOBIN LACKED THE REQUISITE REASONABLE AND ARTICULABLE SUSPICION TO STOP BRACKIN'S VEHICLE WHICH REQUIRES A DISMISSAL OF THE SUMMONSES ISSUED TO BRACKIN.

POINT II

THE TRIAL JUDGE'S RELIANCE ON STATE v. MAHON AN UNPUBLISHED OPINION, WITHOUT PRIOR NOTICE OF SUCH RELIANCE, DEPRIVED BRACKIN OF HIS CONSTITUTIONAL RIGHTS OF NOTICE AND AN OPPORTUNITY TO BE HEARD, IN ANY EVENT THAT OPINION IS CLEARLY DISTINGUISHABLE FROM THE FACTS HEREIN.

Prior to trial in the municipal court in this matter, defendant moved to suppress the evidence of his intoxication and other offenses, arguing that the police had lacked a reasonable suspicion of wrongdoing sufficient to justify the stop of his vehicle. At a hearing on defendant's suppression motion, testimony on behalf of the State was given by Denville Police Officer Scott Tobin. He testified that, on October 9, 2009, at approximately 11:00 p.m., he was stopped at a traffic light on Franklin Road and Route 10, facing south toward Route 10. While there, the Officer observed a vehicle, later determined to be operated by defendant, on Route 10 west, stopped at the light, which was green. When asked how long defendant remained stopped at the light, Tobin responded:

Approximately I believe maybe 10 seconds or so. It wasn't . . . you know, that long of time, but again long enough

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that I believe that when someone has a green light, you know they're going to go through.

Defendant then proceeded on the green,1 but was stopped by Tobin, who thought "[e]ither something was wrong with him or his vehicle that someone would sit . . . at a traffic light." No vehicle was behind defendant's car while he was stopped at the light, and defendant committed no motor vehicle offenses after commencing to proceed through the light.

At the conclusion of Tobin's testimony, counsel for defendant argued that the stop was unjustified. In support of that position, counsel relied on State v. Cryan, 320 N.J. Super. 325 (App. Div. 1999), in which we held that the fact that a vehicle, at 4:25 a.m., remained stopped at a light for five seconds after it turned green, then proceeded slowly to turn left, did not justify a police stop of the vehicle under the police's community caretaking function. Additionally, counsel argued that, to the extent that Tobin claimed defendant's conduct was delaying traffic, he had cited to the wrong statute, N.J.S.A. 39:4-56, which is applicable only to delays caused by the condition, construction or loading of a vehicle, not the

1

Tobin's report of the incident stated: "The vehicle was stationary at the light for some time even though the driver had a green light. A short time later, the vehicle started to accelerate through the intersection and proceed on Route 10 west bound."

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A-5994-09T2

conduct of its operator. The State argued that the Officer had merely cited to the wrong statute, and that the proper one was N.J.S.A. 39:4-67, which governed obstruction of the passage of other vehicles. Further, the State sought to distinguish Cryan on the basis that it concerned a five-second infraction, whereas the present case concerned a ten-second one.

The judge denied defendant's motion, although the basis for that denial was not clearly set forth. Thereafter, defendant entered a conditional plea of guilty to a second DWI offense, admitting to a blood alcohol content reading of 0.2 as the result of consuming vodka and cranberry juice. The remaining charges against defendant of reckless driving and obstructing the passage of other vehicles were conditionally dismissed.

On appeal to the Law Division, following a review of the record and oral argument on the law, the judge found that reasonable suspicion sufficient to justify the stop had been demonstrated as the result of defendant's delay in proceeding on a green light. In reaching his conclusion, the judge relied on an unpublished opinion2 affirming a determination that reasonable suspicion was raised by defendant's conduct in remaining stopped after a light turned green for more than sixty seconds and by

2

State v. Mahon, No. A-0288-07 (App. Div. May 12, 2008), certif. denied, 196 N.J. 465 (2008).

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the fact that the defendant looked directly at the police officer before proceeding slowly through the intersection. In that decision, Cryan was distinguished on the basis that the delay in proceeding was much shorter and the driver did not look directly at the police. Despite the fact that the evidence in the present case more closely resembled that of Cryan than the unreported decision upon which the judge relied, he found the stop to have been justified. After finding defendant guilty, the judge imposed fines and surcharges, a two-year loss of license and registration privileges and forty-eight hours of instruction at the Intoxicated Driver's Resource Center. A stay of sentence pending appeal was denied.

On appeal, defendant again argues that, as the result of our opinion in Cryan, charges against him should have been dismissed. Although defendant's blood alcohol content was very high, and his conviction for driving while intoxicated was otherwise justified — a matter that we hope has been fully considered by defendant in determining the future course of his conduct — we agree that a pause of the length that Officer Tobin testified to observing is not of sufficient length to have raised community caretaking concerns, particularly in circumstances in which defendant's driving after commencing to proceed through the light was unexceptionable.

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We reject the argument that Officer Tobin's identification of the wrong statute when citing defendant for conduct that obstructed traffic provides an alternative ground for relief. Unlike State v. Puzio, 379 N.J. Super. 378 (App. Div. 2005), upon which defendant relies, in the present case, the Officer did not hold a mistaken view of the law at the time he stopped defendant. Compare id. at 381-84. Rather, he understood the law, but misstated the statutory reference. Nonetheless, Officer Tobin could not have had a reasonable belief that a traffic law had been violated, id. at 383, thereby justifying the stop, because as he testified, no cars followed defendant's, and thus there was indisputably no traffic to obstruct. Thus, we adhere to our conclusion that a reasonable, articulable suspicion that a motor vehicle violation had been committed was not established.

In light of our resolution of defendant's first argument point, we find it unnecessary to address his second argument.

Reversed. Defendant's conviction is vacated.

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A-5994-09T2

STATE v CHRISTIAN BLANCO DOCKET NO. A-4299-07T4

STATE v CHRISTIAN BLANCO DOCKET NO. A-4299-07T4

Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-05-0678; 04-04-0466;[1] 06-10-1521.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

PER CURIAM

Following denial of his motion to suppress evidence seized as a result of a warrantless search of defendant's automobile, defendant Christian Blanco pled guilty to third degree possession of a controlled dangerous substance (marijuana) with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(11). At sentencing, the judge imposed a three-year prison term.[2] On appeal, defendant argues that his motion to suppress should have been granted. We affirm in part and reverse in part.

At approximately 4:30 p.m. on July 23, 2006, defendant was driving a rental car eastbound on Leonardine Avenue in South River. Having set up a radar checkpoint at the intersection of Leonardine and Sheinfeine Street, Patrolman Alphonso Saucedo was observing passing vehicles. As defendant's car passed the officer's observation post, the officer noticed defendant look at his car, "and then he did a double take." In doing so, the officer saw defendant turn his body to look at him. At this time, Saucedo noticed defendant was not wearing a seatbelt.

Saucedo stopped defendant's motor vehicle on a portion of Leonardine, where there was a slight bend in the road, and no shoulder. Although Leonardine is a busy thoroughfare, July 23 was a Sunday, so the traffic was not as heavy as it normally is on a weekday. In fact, a line of vehicles never formed to maneuver around the stopped cars, although the stop closed one lane of the road.

After notifying the dispatcher of the stop, Saucedo approached defendant's car and noticed defendant "leaning over towards . . . the passenger seat." As defendant righted himself, Saucedo approached the vehicle, advised defendant of the reason for the stop, and asked him for his license, registration, and insurance card. He also inquired why defendant was moving around so much; defendant replied he was looking for his paperwork. Saucedo noticed paperwork strewn all over the passenger seat of defendant's car.

After receiving defendant's credentials, Saucedo advised him not to move around any more and told him he would return shortly. Saucedo entered the police car to check defendant's credentials. Patrolman Joseph Castellano, the supervisor that day, arrived on the scene as a matter of protocol. Saucedo informed Castellano that defendant was "making movements towards the passenger seat," and asked Castellano to watch defendant as he wrote the ticket.

Castellano stationed himself at the rear passenger side bumper of the defendant's car, where he had an unobstructed view of defendant. Shortly thereafter, he noticed defendant leaning over and yelled at him to stop. Defendant immediately sat up. Saucedo looked up as he was writing the summons and also noticed defendant's actions. Castellano started to walk along the passenger side of the vehicle; Saucedo put down his summons book and approached the driver-side window. Saucedo asked defendant why he was moving around, and "he stated that he was just fixing papers and picked up papers like that . . . he got like upset [a] little bit." When defendant picked up the papers, Saucedo observed approximately three inches of a clear plastic bag. The bag contained "greenish brown vegetation," and was "partially tucked between the passenger [seat] and the middle console area."

Saucedo opened the driver's door, directed defendant to step out of the vehicle and stand by the rear of the car. Castellano then moved from his position on the passenger side towards defendant. Saucedo placed one knee on the driver's seat and reached into the car to retrieve the bag. As he did so, Saucedo smelled the odor of marijuana, but assumed it emanated from the bag he had just retrieved. After showing the bag to defendant, Saucedo placed defendant under arrest, escorted him to his patrol car, conducted a pat down, and secured defendant inside the back of the car.

Saucedo called for a tow after securing defendant because he did not want to leave the car in the bend of the road. Moreover, because the car was rented, there was no owner available to remove the car. Initially, the car was to be towed to a garage, not the police station.

In anticipation of the arrival of the tow truck, Castellano leaned into the car and removed the keys from the ignition. As he pulled the key from the ignition, he smelled raw vegetation. Castellano "took the keys, put them in [his] top pocket and then [he] put more of [his] body in between the driver's side seat and the passenger seat to smell where the odor was coming from." He decided that he needed to search the car further.

Castellano looked around the front seat, but did not see anything; therefore, he focused his attention on the back seat. Castellano entered the back seat, where the odor was the strongest, and laid on the floor. Not finding anything, he attempted to pull down the armrest in the back seat. Because it seemed stuck, he pulled hard and "half of the seat folded down."

Castellano observed a large plastic bag with "a large amount of greenish brown vegetation which looked to be marijuana . . . ." Castellano removed that bag from behind the rear seat. Once he removed the first bag, Castellano was able to see a partially open bag inside the compartment. Using his flashlight, he "saw more greenish brown vegetation." Castellano retrieved that bag as well. Due to the large amount of marijuana found, Castellano contacted the detective bureau, which advised him to have the car towed to police headquarters.

The motion judge found both officers credible and held the search of the interior of the car was reasonable and valid. He found the seizure of the small bag of marijuana was justified by the plain view doctrine because the officer observed it as defendant shuffled and lifted papers. Directing his attention to the large bags of marijuana, the judge found police had probable cause to believe there were additional drugs in the car due to defendant's actions and the smell. The judge found the police actions reasonable in light of probable cause and exigent circumstances. The judge stated, "[t]here is exigent circumstances with a car. It was a rented car. It wasn't even the defendant's car." Therefore, the judge held the stop was reasonable and valid under State v. Flowers, 328 N.J. Super. 205 (App. Div. 2000).

On appeal, defendant raises the following arguments:

POINT I

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS VEHICLE SEARCH.

A. THERE WAS NO EXIGENCY JUSTIFYING OFFICER CASTELLANO'S FULL SEARCH OF DEFENDANT'S VEHICLE AFTER THE DEFENDANT HAD BEEN REMOVED FROM HIS CAR, ARRESTED, HANDCUFFED, AND SECURED IN THE POLICE VEHICLE.

B. THE STATE FAILED TO PROVE BY CREDIBLE EVIDENCE THAT THE WARRANTLESS SEIZURE OF THE SMALL BAG OF MARIJUANA BY OFFICER SAUCEDO WAS LAWFUL.

Defendant argues there were no exigent circumstances to justify the search of the back seat and the area behind the back seat of the car. Defendant further contends the State failed to prove by credible evidence that Saucedo's warrantless seizure of the small bag of marijuana was lawful.

The State insists Saucedo properly seized the small bag of marijuana pursuant to the plain view exception to the warrant requirement. Moreover, the State argues the search of the rear of the car was proper under the automobile exception to the warrant requirement because there were exigent circumstances.

We hold that Saucedo properly seized the small bag of marijuana on the front seat. However, having arrested defendant, secured him in a police car, and called for a tow truck, the police were not confronted with exigent circumstances to justify the warrantless search of the back seat of the car.

The New Jersey Constitution provides the right "of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." N.J. Const. art. I ¶7. The test of reasonableness "is satisfied where the police obtain, upon a showing of probable cause, a search warrant from a neutral magistrate." State v. Bruzzese, 94 N.J. 210, 218 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984).

There are a number of judicially recognized exceptions to the warrant requirement. Ibid. Nonetheless, a warrantless search "that does not fall within one of the enumerated exceptions is presumptively unconstitutional." Ibid. "[T]he proper standard for determining the constitutionality of a warrantless search-and-seizure is whether the police officer's conduct was objectively reasonable and in conformity with recognized exceptions to the warrant requirement." Id. at 239.

The automobile exception "permits warrantless searches of readily movable vehicles if law enforcement officers have probable cause to believe the vehicle contains evidence of a crime." State v. Cooke, 163 N.J. 657, 664 (2000). Exigent circumstances, in addition to probable cause, must exist to permit a warrantless search of an automobile. Id. at 661. "[T]he term 'exigent circumstances' is, by design, inexact. It is incapable of precise definition because, by its nature, the term takes on form and shape depending on the facts of any given case." Id. at 676.

This exception "does not stand or fall on the fact that a moving car was stopped and then searched." State v. Colvin, 123 N.J. 428, 433 (1991). However, the stop and search cannot be pre-planned. State v. Alston, 88 N.J. 211, 233-34 (1981). "Police safety and the preservation of evidence [are] the preeminent determinants of exigency." State v. Dunlap, 185 N.J. 543, 551 (2006). The existence of exigent circumstances does not "dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement." Alston, supra, 88 N.J. at 234.

The plain view exception to the warrant requirement requires three things:

First, the police officer must be lawfully in the viewing area. Second, the officer has to discover the evidence "inadvertently," meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. Third, it has to be "immediately apparent" to the police that the items in plain view were evidence of a crime, contraband, or otherwise subject to seizure.

[Bruzzese, supra, 94 N.J. at 236.]

Because a trial court's decision on a motion to suppress "represents that court's 'interpretation of the law and the legal consequences that flow from established facts,' its conclusion is 'not entitled to any special deference.'" State v. Hupka, 203 N.J. 222, 231 (2010) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995)). We must, however, "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007).

Citing Dunlap, supra, defendant argues any exigent circumstances vanished once he was secured in the police car. The State contends there were exigent circumstances because it was a roadside stop at a bend in the road of a busy thoroughfare. Furthermore, obtaining a search warrant would have been impracticable under the circumstances because defendant was under arrest and had to be transported to headquarters for processing.

In Cooke, the police effected a warrantless search of a locked car parked in an area known for drug-trafficking. 163 N.J. at 662-63. In analyzing whether there were exigent circumstances present to justify the search, the Court stated:

[T]he potential for removal or destruction of evidence existed because [the informant], known to the police because of prior arrests, and at least two other persons observed by [an officer], knew that defendant had engaged in drug transactions. Specifically, [the informant] was present when defendant had been arrested or detained by the police. By fair inference, [the informant] thereby knew that the Escort might be unattended.

[Id. at 673.]

The Court found that the trial court mistakenly relied on the fact that the police possessed the set of keys to the car. "Simply because the police were in possession of one set of keys does not logically preclude the possibility that one or more third parties had another set of keys to gain access to the Escort." Ibid.

Moreover, the Court noted the events occurred rapidly. Ibid. Finally, the Court stated that the officer who had been conducting surveillance on the car "was alone and observing the vehicle from a concealed surveillance point . . . [and] could not leave his post and 'give up' his surveillance point to guard the car." Id. at 674. Thus, it was impracticable and unduly burdensome to require the police to post a guard and apply for a warrant. Ibid.

The Court also noted that no one factor, standing alone, would be sufficient for a finding of exigent circumstances, "[r]ather, it is the combination of factors in this case that justify the warrantless search." Id. at 675. However, the Court concluded that exigent circumstances "would not have existed in the present case if the officer had not observed or reasonably believed that third parties were capable of destroying or removing the evidence contained in the car." Id. at 676.

In Dunlap, police arrested a woman for narcotics and weapons, but she told them that the drugs and gun belonged to the defendant, and agreed to help them. 185 N.J. at 545. She told the officers that "if [the] defendant came to her house, he probably was going to have heroin on him; that she had seen him with guns in the past; and that one of the vehicles driven by [the] defendant, a green Hyundai, was owned by someone with a 'Hispanic name.'" Ibid. The police urged her to call the defendant, and they "obtained telephonic authorization for a consensual telephone interception . . . ." Ibid.

When the defendant arrived at the woman's house, there were approximately eight to ten officers on the scene, two of whom tackled the defendant as he walked towards the door. Ibid. The officers took his keys, opened the door of the Hyundai, smelled burnt marijuana, and "proceeded to search the entire passenger compartment and the glove box and opened a bundle wrapped in magazine paper in the air conditioning vent near the steering wheel." Ibid. The woman told the police there was a "trap" to the left of the driver's seat, and although the police were unable to open it, the woman was able to open it, and they found a loaded gun and 873 packets of heroin. Id. at 546.

This court analyzed the facts of the case in accordance with Cooke, supra, and noted that the Hyundai was

not parked in an open area known for drug trafficking but was, rather, parked on the street in a residential neighborhood. Nor is there any evidence that third persons--including the car's registered owner--had any knowledge of defendant's destination or, more importantly, that he had been arrested. . . . In short, there was no basis here upon which to conclude that a third person might come and destroy or remove evidence in the car.

[Id. at 550.]

Moreover, this court found it relevant that there were approximately ten officers present, and thus, "the State did not establish that an insufficient number would have been left to guard the car." Ibid. Finally, this court noted: "[I]t is not without significance that the investigators here had time to call the prosecutor's office at about 10:00 pm and obtain verbal authorization for the consensual recording of [the] defendant's conversation with [the woman]." Ibid.

Thus, this court reversed the trial court's denial of the motion to suppress, id. at 547, and the Supreme Court "determined that the decision of the Appellate Division is fully supported in every respect by the record and is legally unexceptionable." Id. at 550-51. The Court added: "Here, the unique facts, particularly the presence of ten officers, fully justified the Appellate Division's conclusion that exigency was absent. Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus." Id. at 551.

Recently, the Supreme Court in State v. Pena-Flores, 198 N.J. 6, 28 (2009), reiterated the test for the automobile exception. The Court stated: "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." Ibid.

The Court also reiterated that exigency must be determined on a case-by-case basis. Ibid. The Court stated that there is no "magic formula" to determine when there are exigent circumstances. Id. at 29. Rather, "it is merely the compendium of facts that make it impracticable to secure a warrant." Ibid. To help in this determination, it set out, "by way of example but not limitation," id. at 29 n.6, a list of considerations including:

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.

[Id. at 29.]

In Pena-Flores, the Court considered the automobile exception in the context of two factual scenarios. In the first set of facts, the defendants had been removed from the car but had not been arrested. Id. at 30. Only two officers were on the scene. Ibid. The Court held exigent circumstances justified the warrantless search of the car. Id. at 31. In the second scenario, police stopped the car driven by the defendant on a city street in the early afternoon, arrested and secured him in the police car, and no one had ready access to the vehicle. Id. at 32. Under these circumstances, the Court found exigent circumstances did not exist. Ibid.

Here, the motor vehicle stop was unexpected. Castellano had probable cause to believe there was contraband in the car. See State v. Nishina, 175 N.J. 502, 515-16 (2003) (the smell of marijuana itself constitutes probable cause). On the other hand, the stop took place on a Sunday afternoon when the traffic was light. A line of cars never formed as the officers effectuated the stop, arrested defendant, and searched the car. Furthermore, the officers called for a tow truck to remove the car as soon as defendant was arrested. The record is also bereft of any evidence that third parties knew of or had the occasion to remove or destroy the drugs in the car.

This case is the factual scenario anticipated by Cooke, and is analogous to the second scenario in Pena-Flores. Pena-Flores, supra, 198 N.J. at 31-33. Indeed, the facts of Pena-Flores are substantially similar to this case, except here the officers had already initiated measures to impound the car. The record contains not even a suggestion that one of the officers could not have remained with the car as the other sought a warrant. Under the circumstances of this case, the warrantless search of the back seat and the area behind the back seat was not reasonable. We, therefore, reverse that portion of the order denying defendant's motion to suppress the marijuana seized behind the back seat.

On the other hand, the first small bag of marijuana was properly seized. Having observed defendant driving without a seatbelt, Officer Saucedo had probable cause to stop the vehicle. Once defendant lifted papers from the passenger seat, the small bag containing marijuana was readily observable to Saucedo. The motion judge properly found the small bag of marijuana on the front seat was in plain view. As such, he properly denied the motion to suppress as to this initially observed and seized bag.

Affirmed in part; reversed in part.

---

[1] Indictment Nos. 03-05-0678 and 04-04-0466 appear on the Notice of Appeal. Because defendant has not briefed any issues as to these indictments, we deem them waived. W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App. Div. 2008).

[2] The October 19, 2007 Judgment of Conviction recommended that defendant be considered for the Intensive Supervision Program. According to the Department of Corrections inmate locater website, https://www6.state.nj.us/DOC_Inmate/inmatefinder?i=I (last visited Feb. 24, 2011), defendant was released from custody on April 22, 2008.

state v GEORGE TSOULLIS, JR., A-5679-09T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

GEORGE TSOULLIS, JR.,

SUPERIOR COURT

APPELLATE DIVISION

DOCKET NO. A-5679-09T2

__________________________________________

	March 7, 2011

- Decided

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Municipal Appeal No. 001-06-10.

Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, on the briefs).

John J. Bruno, Jr., argued the cause for respondent (Bruno & Ferraro, attorneys; Mr. Bruno, of counsel and on the brief; Salvatore R. Vargo, on the brief).

PER CURIAM

On Sunday, May 30, 2009, at about 3 a.m., defendant George Tsoullis, Jr., was stopped at a DWI checkpoint. Defendant admitted to the police that he had consumed four or five beers, and he was unable to satisfactorily complete the roadside sobriety tests. He was charged with driving while intoxicated.

At municipal court, defendant moved to dismiss the charge due to the State's failure to provide the court-ordered downloaded Alcotest data as required by State v. Chun, 194 N.J. 54, 90 (2008). The municipal court denied defendant’s application for a dismissal of the charge but did suppress defendant’s Alcotest reading due to the discovery violation. Defendant entered a conditional plea of guilty, pursuant to Rule 7:6-2(c), admitting that he drove while impaired by alcohol under the subjective prong of N.J.S.A. 39:4-50. The charge of failure to exhibit a driver’s license, N.J.S.A. 39:3-29, was dismissed by the State.

The municipal court sentenced defendant as a second offender, pursuant to N.J.S.A. 39:4-50(a)(2), to $757 in fines, $33 in court costs, a $50 Victims of Crime Compensation Board assessment, a $200 DWI surcharge, a $75 Safe Neighborhood assessment, a two-year driver’s license suspension, forty-eight hours in the Intoxicated Driver Resource Center Program and thirty days of community service.

Defendant preserved his right to argue to the Law Division that the DWI charge should have been dismissed as a result of the discovery violation. Upon de novo review of defendant’s conditional plea of guilty, the Law Division judge found that the discovery violation raised a reasonable doubt as to defendant’s guilt and found defendant not guilty.

Defendant argues that principles of double jeopardy preclude our review of the not guilty finding in the Law Division. The State argues that only the possible remedy of dismissal for the discovery violation was before the Law Division. Such a dismissal would be appealable by the State. R. 2:3-1. Because a guilty plea had been entered, the State argues that the Law Division judge had no authority to find the defendant not guilty. The State argues that we should reverse the Law Division’s unauthorized not guilty finding and find that the municipal court’s suppression of the Alcotest result was a sufficient remedy for the discovery violation. After review of the record in light of applicable law, we reverse and remand for reinstatement of the guilty plea and sentence imposed by the municipal court.

The State argues on appeal,

POINT I

BECAUSE THE ISSUE OF DEFENDANT'S GUILT OF THE CHARGE WAS NOT BEFORE THE TRIAL COURT ON THE DE NOVO APPEAL, THE COURT ERRED AS A MATTER OF LAW IN FINDING THAT THE STATE FAILED TO PROVE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT.

In his decision, the Law Division judge properly distinguished this matter from State v. Holup, 253 N.J. Super. 320 (App. Div. 1992), where we opined that dismissal would be appropriate where the State failed to provide any discovery after a court-ordered deadline. Here, the defense complied with the procedures delineated in Holup to obtain discovery. Defendant sent a letter to the municipal prosecutor and the police seeking discovery of the Alcotest data twenty-six days after his arrest. Almost five months later, he had not received the data, and he sought relief from the municipal court judge who required that this discovery be provided within ten days. The data was not produced within the period set by the court, although the State timely provided all other discovery, thereby complying in part with its discovery obligations. The municipal judge therefore only barred the introduction of the Alcotest results. Defendant thereafter entered a conditional plea of guilty to the subjective prong of the DWI statute.

Defendant did not at any point move to vacate his plea but argued on appeal in the Law Division that the charges against him should have been dismissed in their entirety because of the discovery violation. The Law Division judge, however, did not adopt that course of reasoning but instead held that the data could have been exculpatory and therefore the State’s failure to provide it constituted a constitutional violation under Brady v. Maryland, 373 U.S. 73, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The judge framed the issue by saying, “the question here is has the failure to provide this discovery raised an issue of reasonable doubt.” He proceeded to find defendant not guilty, stating,

I find that there was not [sufficient evidence] to convict even on the subjective prong . . . when we don’t know what the readings would have been, or what the data would have provided and that is what I find creates a reasonable doubt.

Thus, the Law Division judge found defendant not guilty because he found the evidence that was not provided by the State could have exculpated defendant, and he believed that he had authority to review the guilty finding even though it was the result of a guilty plea.

We have held that a judgment of acquittal under these circumstances may be overturned on appeal. State v. Sohl, 363 N.J. Super. 573, 580-81 (App. Div. 2003). As we stated in Sohl, “[a]n appeal from a conviction entered in municipal court upon a conditional guilty plea is an appeal of the municipal judge’s denial of the defendant’s motion in limine.” Id. at 581 (citing State v. Golotta, 354 N.J. Super. 477, 483 (App. Div. 2002) rev'd on other grounds, 178 N.J. 205 (2003)). We held in Stohl that because the defendant did not retract his municipal guilty plea, the Law Division judge “was unable to enter a finding of not guilty as defendant’s plea of guilty remained entered upon the record in municipal court.” Stohl, supra, 363 N.J. Super. at 581. Defendant’s guilty plea also remained as he was appealing only the denial of his motion to dismiss for failure to provide complete discovery.

Although he did not have the authority to find defendant not guilty, the Law Division judge could have granted defendant’s motion to dismiss the charge if the judge found a Brady violation warranting such a drastic remedy. See State v. Nelson, 330 N.J. Super. 206 (App. Div. 2000) (where we reversed a conviction based on a Brady violation because the prosecution failed to disclose a prior conviction of one of its witnesses). It is unnecessary to remand the case to the judge to determine whether or not he found such a Brady violation because it is clear from the record that he found the State's failure to provide the Alcotest data constituted a failure to provide exculpatory evidence.

We disagree with the judge’s finding of a Brady violation. Defendant points to no evidence that would indicate that the Alcotest data, which might reveal the accuracy of the reading,[1] would have supported a finding that he was not driving while under the influence of alcohol. Generally, if the State is unable to prove the reliability of a scientific test, that test is excluded by the court. See State v. Torres, 183 N.J. 554, 568-70 (2005) (explaining that the party seeking to introduce scientific evidence must establish that the evidence "relates to a relevant subject that is beyond the understanding of the average person of ordinary experience, education, and knowledge[,]" and the technique used to obtain the evidence has a sufficiently scientific basis) (internal quotation marks and citations omitted); see also State v. Marcus, 294 N.J. Super. 267, 275 (App. Div. 1996) (when addressing the admissibility of DNA evidence we stated that "[i]n addition to showing its general acceptance in the scientific community, a party offering scientific evidence must show that the technique, methodology or procedure was correctly used to produce that evidence"), certif. denied, 157 N.J. 543 (1998); State v. Dishon, 297 N.J. Super. 254, 278-80 (App. Div.), certif. denied, 149 N.J. 144 (1977).

A lack of foundational evidence of reliability does not demonstrate that the scientific test in fact would have proved the opposite of the fact the State seeks to prove by its admission. Although the record does not provide the Alcotest reading, presumably if it had supported a not guilty verdict, defendant would have sought to admit it. Brady violations cannot be based on the unsupported assertion that evidence, if produced, would have been exculpatory. Brady violations require demonstration of the existence of "material exculpatory evidence," and that simply does not exist here. State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009) (where we found that a trial court in a DWI prosecution was not required to assume that a videotape of the defendant's traffic stop and arrest, which the State had erased, was "material exculpatory evidence.") (quoting State v. Marshall, 123 N.J. 1, 109 (1991) (citation and internal quotation marks omitted), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).

Reversed and remanded for the Law Division to reinstate defendant’s guilty plea and sentence.

---

[1] This data consists of "the test subject's identifying information, date, time, and test results for each stage of the procedure." Chun, supra, 194 N.J. at 82. It also "includes a variety of other information relevant to the test, including the serial number of the device used in the test, dates of and file numbers for calibration and linearity checks, and solution control lot and bottle numbers." Ibid.

Denial of Suppression motion reversed where judge did not conduct a hearing STATE v JONATHAN MCEACHIN, DOCKET NO. A-3880-09T1

Denial of Suppression motion reversed where judge did not conduct a hearing

STATE v

JONATHAN MCEACHIN,

DOCKET NO. A-3880-09T1

_________________________________

Submitted March 30, 2011 - Decided

Before Judges Sapp-Peterson and Fasciale.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

08-12-1596.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Stephen A. Caruso,

Assistant Deputy Public Defender, on the

brief).

Camelia M. Valdes, Passaic County

Prosecutor, attorney for respondent

(Christopher W. Hsieh, Senior Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

After the motion judge failed to conduct an evidentiary

hearing on defendant's motion to suppress, defendant pled guilty

to second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5b. The judge sentenced defendant to three years in

April 19, 2011

2 A-3880-09T1

prison with a one year term of parole ineligibility. Defendant

appeals from that conviction, argues that the material facts

were disputed, and contends that the judge erred by not taking

testimony. We agree and reverse.

Because the judge denied defendant's request for an

evidentiary hearing, the judge considered the briefs filed by

the parties, a police report, and oral argument by the

attorneys. We discern the following facts from those sources.

The State contended that three undercover detectives were

dispatched to an area in response to complaints of people

"hanging out and selling narcotics." When they arrived in an

unmarked police car, one detective observed defendant hold a

"shiny, silver item" and show it to another man. The detective

could not identify the object. The detectives pulled over,

exited the car, approached both men, and identified themselves

as police officers. At that point, one detective identified the

object as a gun and observed defendant attempt to conceal it.

The detective handcuffed defendant and arrested him.

The police report verified that the three detectives were

in the area because of complaints concerning drug sales. The

report states that one detective observed defendant showing a

"shiny silver item" to the other man, and that the detective did

3 A-3880-09T1

not know what the object was until he exited the car, approached

defendant, and announced he was a policeman.

Defense counsel hotly contested the facts in his brief in

support of the motion and during oral argument before the motion

judge. In his counter-statement of facts defense counsel

explained that:

This case is about a pretextual stop

and search that was the product of racial

profiling and perceive[ed] gang affiliation,

not a reasonable and articulable suspicion

of plain view observation. . . . [T]he

detectives claim to have observed [the other

man] and [defendant], both dark[-]skinned

African-Americans and cousins to one

another, standing face to face, next to a

tree. The police allege to have observed

[defendant] holding a shiny item which they

have unreasonably assumed was a gun.

Significantly, none of the three

officers had their guns drawn when they

approached [the men], nor did they call for

back-up prior to approaching them.

. . . .

Without waiving any of his

constitutional rights, [defendant] admits to

possession of the firearm which was

concealed in his pants at all relevant

times. He had the firearm for self-defense

because his younger brother . . . had been

shot and killed one month prior . . . .

(emphasis added).

Defense counsel also stated in his counter-statement of

facts that defendant was wearing a short sleeve shirt which

4 A-3880-09T1

exposed numerous tattoos on his arms, and suggested that

"[t]attoos on young Black and Latino men are commonly associated

with gang affiliation."

At oral argument before the judge, defense counsel

emphasized that the material facts were in dispute. He repeated

his argument that the case is about "a pretextual stop and

search that was the product of racial profiling and perceived

gang affiliation," and stated that "all three of these officers

were white and that the two individuals . . . were African-

American."

In denying the request for an evidentiary suppression

hearing the judge stated:

[Defense counsel] argues that an

evidentiary hearing is required because how

do we know that this -- A, whether they saw

a shiny object at all and if the -- if the

shiny object wasn't perhaps something else

because certainly if it was just, I don't

know, a reflection off of a wristwatch or

something like that[, then] that certainly

would not be a basis for approaching this

defendant and seizing the -- the handgun.

. . . .

Credibility [of the detective] is in

dispute, but I have received no sworn

affidavit to the contrary.

On appeal, defendant raises the following point:

POINT I

THE TRIAL JUDGE ERRED BY DENYING THE

DEFENDANT'S REQUEST TO HOLD AN EVIDENTIARY

5 A-3880-09T1

HEARING AND PRESENT TESTIMONY AT THE

SUPPRESSION HEARING, IN VIOLATION OF

DEFENDANT'S CONSTITUTIONAL RIGHTS. U.S.

CONST. AMEND. IV, XIV; N.J. CONST. (1947)

ART. I, PAR. 7

"Consistent with the Fourth Amendment to the United States

Constitution and Article I, paragraph 7 of the New Jersey

Constitution, police officers must obtain a warrant . . . before

searching a person's property, unless the search 'falls within

one of the recognized exceptions to the warrant requirement.'"

State v. DeLuca, 168 N.J. 626, 631 (2001) (quoting State v.

Cooke, 163 N.J. 657, 664 (2000)); see also State v. Robinson,

200 N.J. 1, 3 (2009) ("[t]he warrant requirement embodied in

both" the State and Federal Constitutions "limits the power of

the sovereign to enter our homes and seize our persons or our

effects"). A warrantless search is presumed invalid. State v.

Pineiro, 181 N.J. 13, 19 (2004). The burden is placed on the

State to prove that the search "'falls within one of the few

well-delineated exceptions to the warrant requirement.'" Ibid.

(quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

Rule 3:5-7(b) and (c) govern the obligation to file briefs

concerning motions to suppress, and addresses when a hearing is

required. The rule provides in pertinent part:

(b) . . . If the search was made without a

warrant, the State shall, within 15 days of

the filing of the motion, file a brief,

including a statement of the facts as it

6 A-3880-09T1

alleges them to be, and the movant shall

file a brief and counter statement of facts

no later than three days before the hearing.

(c) . . . If material facts are disputed,

testimony thereon shall be taken in open

court.

(emphasis added).

The rule makes clear that an evidentiary hearing is only

required when material facts are in dispute. State v. Kadonsky,

288 N.J. Super. 41, 45-46 (App. Div.), certif. denied, 144 N.J.

589 (1996). The judge acknowledged that the credibility of the

officer was in dispute and mentioned that he had "no sworn

affidavit to the contrary." There is no such requirement,

however, that to demonstrate a material disputed fact, one must

produce an affidavit. All that is required is a counterstatement

of facts contained within a brief. R. 3:5-7(b); State

v. Torres, 154 N.J. Super. 169, 173 (App. Div. 1977).

Here, defense counsel's brief states that "according to

both defendant and his cousin . . . , neither of whom has a

criminal record which could be used to impeach their

credibility," the gun was not in plain view. The judge stated

that the shiny object could be something else, such as a

"reflection off of a wristwatch or something like that," and

"that certainly would not be a basis for approaching this

defendant and seizing the -- the handgun." We conclude,

7 A-3880-09T1

therefore, that a suppression hearing is required because the

material facts are disputed.

Reversed and remanded for further proceedings. We do not

retain jurisdiction.