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Ken is a NJ trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He has been selected to write the new ABA book: DUI and Drug Possession Defense".

Tuesday, May 22, 2018

Suppression granted where no furtive movements and merely being fixated no grounds for search STATE v ISMAEL MOJICA,

Suppression granted where no furtive movements and merely being fixated no grounds for search
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ISMAEL MOJICA,

     Defendant-Appellant.
_______________________________

              Submitted February 28, 2018 – Decided March 22, 2018

              Before Judges Fuentes and Suter.NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2411-16T3
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 16- 02-0579. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent (Lauren Bonfiglio, Deputy Attorney General, of counsel and on the brief). PER CURIAM Defendant Ismael Mojica appeals from the October 25, 2016 Judgment of Conviction, following his guilty plea under Indictment 16-02-0579 to unlawful possession of a weapon (handgun). He alleges the trial court erred by denying his earlier motion to suppress evidence of a handgun. We conclude the suppression motion should have been granted. We reverse the order denying suppression and defendant's conviction under Indictment 16-02-0579. In 2016, defendant was indicted for second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (Count One); and fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (Count Two). Following denial of his motion to suppress the handgun, defendant pled guilty to Count One. Count Two was dismissed.1 Defendant was sentenced to a five-year term of imprisonment with a forty-two month period of parole ineligibility. We gather the following facts from the record developed at the suppression motion. On October 15, 2015 at about eight p.m., Detective Adolpho Furtado of the Newark Police Department received an anonymous "Crime Stopper" hotline tip that a man near a liquor store at the intersection of Hartford and Norfolk in Newark was in possession 1 On the same day, defendant also pled guilty to charges in three unrelated indictments, 15-10-2280, 15-12-2972 and 16-04-1136. He was sentenced to three-year terms on each indictment to run concurrently with the unlawful weapons offense. Another indictment, 16-02-0528, was dismissed. Our decision here on the unlawful weapons offense does not affect his plea on the other unrelated indictments. 2 A-2411-16T3 of a handgun. The person was described as a black male, "wearing gray sweat pants with a white and grey hoodie." Crime Stopper hotline tips are not recorded. Detective Furtado relayed the tip to a sergeant who was on patrol in the area. According to the testimony of Detective Turon Hinnant, also of the Newark Police Department, Detective Villette was conducting surveillance on the location. There were between five and eight males standing in front of a building at Norfolk Street. A number of officers in vehicles approached the individuals who were outside. Those individuals were told to "put their hands out and lay down on the ground." Hinnant testified that Villette observed a person, who fit the general description, leaving the liquor store, walk over to and enter a white Buick that was parked outside the Norfolk Street property. Along with another detective, Detective Hinnant approached the driver's side window of the white car parked near the building and observed defendant "looking over his right shoulder towards the sidewalk where the other detectives were engaging with the five to eight males." He testified that while defendant was "fixated on what they were doing, [defendant] put an object into his right coat pocket." Hinnant demonstrated this by making a motion toward his waistband area. Hinnant "believed [defendant] was trying to conceal a weapon." He opened the car 3 A-2411-16T3 door, to defendant's surprise, and grabbed "towards the right pocket." Hinnant felt a metal object that he believed was a gun. He held onto the object, and asked defendant to step out of the car. Once outside, Hinnant reached inside defendant's pocket and found a handgun that was loaded with hollow point bullets. Defendant was arrested. He was wearing a "[b]lack coat, white shirt, grey sweat pants." Defendant testified that he stopped at a grocery store, not a liquor store, where he purchased "snacks and soda." He parked on the street. When he got back into his car, he was speaking with a friend who was a passenger. Then "[c]ars surrounded the area" and he was not able to move out. He testified an officer approached the car and told him to "step out." Defendant opened the door and did so. He denied that the officer reached in the car. The officers searched him. The trial judge denied defendant's motion to suppress, finding the facts were not in dispute. Although the parties agreed an anonymous tip alone could not support a warrantless search, the court found the State had "overcome the hurdle in providing additional information as it relates to the tip, including the hour of the day, a location, the clothing, the car, and the activity." The court found defendant's "action" of "making contact with a pocket" gave the officer "pause for his protection at that 4 A-2411-16T3 point" and "justifie[d] the officer at least searching that area . . . . for his protection." On appeal, defendant raises the issue that LAW ENFORCEMENT CONDUCTED A SEIZURE AND SEARCH OF MR. MOJICA WITHOUT REASONABLE SUSPICION THAT HE WAS ARMED AND, THEREFORE, THE FRUITS OF THE SUBSEQUENT SEARCH MUST BE SUPPRESSED. U.S. CONST. AMENDS IV AND XIV; N.J. CONST. ART. I, PAR. 7. Our review of the denial of a suppression motion is limited. State v. Handy, 206 N.J. 39, 44 (2011). "When reviewing a trial court's decision to grant or deny a suppression motion, [we] 'must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record.'" State v. Dunbar, 229 N.J. 521, 538 (2017) (quoting State v. Hubbard, 222 N.J. 249, 262 (2015)). "We will set aside a trial court's findings of fact only when such findings 'are clearly mistaken.'" Ibid. (quoting Hubbard, 222 N.J. at 262). "We accord no deference, however, to a trial court's interpretation of law, which we review de novo." Ibid. (quoting State v. Hathaway, 222 N.J. 453, 467 (2015)). Our legal analysis will be guided by the motion judge's factual findings. However, whether the police had a reasonable, articulable basis to detain and search defendant is a legal question, not a factual one, to which we owe no deference. 5 A-2411-16T3 Both the Federal and State constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. An investigatory stop, sometimes referred to as a Terry2 stop, implicates constitutional requirements and must be based on "specific and articulable facts which, taken together with rational inferences from those facts" provide a "reasonable suspicion of criminal activity." State v. Elders, 192 N.J. 224, 247 (2007) (quoting State v. Rodriquez, 172 N.J. 117, 126 (2002)). "Because an investigative detention is a temporary seizure that restricts a person's movement, it must be based on an officer's 'reasonable and particularized suspicion . . . that an individual has just engaged in, or was about to engage in, criminal activity.'" State v. Rosario, 229 N.J. 263, 272 (2017) (quoting State v. Stovall, 170 N.J. 346, 356 (2002)). The officer's "articulable reasons" or "particularized suspicion" is based on the officer's assessment of the totality of the circumstances. State v. Davis, 104 N.J. 490, 504 (1986). Here, the stop was based, in part, on information relayed to the police by an anonymous tip. "In determining the reliability of a tip, a court must consider an informant's 'veracity,' 'reliability,' and 'basis of knowledge.'" Stovall, 170 N.J. at 2 Terry v. Ohio, 392 U.S. 1 (1968). 6 A-2411-16T3 362 (quoting Alabama v. White, 496 U.S. 325, 328-29 (1990)). To determine the informant's "basis of knowledge", "the nature and details revealed in the tip may imply" that the knowledge of the criminal activity comes from a "trustworthy source." Stovall, 170 N.J. at 362. "In determining whether reasonable suspicion exists, a court must consider 'the totality of the circumstances- the whole picture.'" Id. at 361 (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). The reliability of the tip is part of the totality of the circumstances analysis. Id. at 361-62. Generally, an anonymous tip is not sufficient alone to justify a stop because it lacks, veracity, reliability and a basis of knowledge. State v. Matthews, 398 N.J. Super. 551, 559 (App. Div. 2008). The State contends the Crime Stopper's tip was verified because a person matching the description was found at the location indicated. Those facts verified a portion of the information, but did not verify the assertion of illegality. For that, the State contends that it was nighttime, defendant was "fixated" on the police activity and defendant made a furtive gesture by moving something to his pocket. These combination of factors do not provide a reasonable articulable basis for the stop and seizure. In Florida v. J.L., 529 U.S. 266 (2000), the police received an anonymous tip that a person at a specific location and dressed in a plaid shirt had a 7 A-2411-16T3 gun. The police saw a person matching the description at the location, but did not "see a firearm, and J.L. made no threatening or otherwise unusual movements." Id. at 268. The police told J.L. to put up his hands and frisked him, finding a gun. The Supreme Court found there were not reasonable grounds to stop and frisk J.L. because the anonymous tip, without more, was not "reliable in its assertion of illegality." Id. at 272. Our courts have held that an anonymous tip without more "is rarely sufficient to establish a reasonable articulable suspicion of criminal activity." Rodriquez, 172 N.J. at 127 (citing Alabama, 496 U.S. at 329.). "To justify action based on an anonymous tip, the police in the typical case must verify that the tip is reliable by some independent corroborative effort." Id. at 127 (citing Alabama, 496 U.S. at 329-30). In Rodriguez, the Court found "that the officers lacked a sufficient basis to detain defendant" where the stop was "based solely on information furnished by an anonymous informant who provided no explanation or basis of knowledge for that information." Id. at 132-33. In State v. Privott, 203 N.J. 16, 28-30 (2010), the Court upheld an investigatory stop and frisk based on an anonymous tip combined with the officer's knowledge about the defendant from a prior narcotics arrest. This included the officer's awareness that "defendant was associated with violent gangs that were 8 A-2411-16T3 responsible for recent shootings in the area," defendant appeared to be nervous, tried to walk away and then "made a movement of his hand to his waistband." Id. at 28-29. By contrast, in State v. Richards, 351 N.J. Super. 289, 308 (App. Div. 2002), the arrest was made in an area that was not a high crime or high drug area, the defendant made no furtive movements, did not act nervously, was using a pay phone, was not known to the police and when stopped, simply stood "quiet in the face of police presence." Id. at 306. In this light, we held that the circumstances "did not establish a reasonable suspicion that defendant was armed and dangerous justifying the Terry stop." Id. at 308. See also Matthews, 398 N.J. Super. at 559 (invaliding search based solely on unidentified anonymous tip). Here, there was nothing unusual about leaving a store at eight o'clock at night, observing police activity occurring right outside one's car, and then reaching into one's pocket while seated in the car. The officers did not testify that they knew defendant, or that this was a high crime area. Defendant had not committed a motor vehicle violation. He did not attempt to flee. The police did not testify that he was acting nervously or suspiciously. He was at best "fixated" on the nearby police activity and then made a singular movement of his hand to his pocket. "[A]n officer's safety concerns based on [these ostensibly] asserted 'furtive' 9 A-2411-16T3 movements by defendant cannot provide reasonable and articulable suspicion to support a detention in the first instance." Rosario, 229 N.J. at 277. On this record, the totality of the circumstances lacked an objectively reasonable articulable basis for the investigatory stop of defendant and seizure of the weapon. We are constrained to reverse the order denying suppression of the evidence of the handgun under Indictment 16-02-0579. We remand the case for further proceeding under that indictment. Our decision does not affect defendant's guilty pleas or sentencing under indictments 15-10-2280, 15-12-2972 or 16-04-1136. Reversed and remanded. 10 A-2411-16T3

Saturday, May 12, 2018

State v. Hagans (A-37-16)


 State v. Hagans (A-37-16) (078014) 
Argued January 16, 2018 -- Decided April 23, 2018 
     Because the trial court’s determination that the driver ultimately knowingly and voluntarily gave consent to search is supported by sufficient credible evidence, the trial court properly denied defendant’s motion to suppress the evidence seized during the search.
TIMPONE, J., writing for the Court. 
In this case, the Court considers the validity of a driver’s consent to search her automobile after she initially denied a police officer’s request to search it. 
In March 2012, New Jersey State Trooper John Faust pulled over a 2002 Mercury Sable with a damaged taillight on Interstate 295 in Burlington County. The driver, Shonsheray Chandler, had changed lanes without signaling. There were passengers in Chandler’s car: her six-year-old daughter, who was in the back seat, and defendant Malcolm Hagans, sitting in the front passenger seat. Faust approached the passenger side of the vehicle and smelled the odor of burnt marijuana in the vehicle. Faust asked defendant to step out of the vehicle, arrested him, handcuffed him, called for back up, and administered Miranda warnings. Faust then asked Chandler to step out of the vehicle, administered Miranda warnings, and questioned her about the presence of marijuana in the vehicle. Faust handcuffed Chandler and placed her in the backseat of his police vehicle. Chandler denied knowing defendant had marijuana on him and denied that she had been smoking marijuana in the car. 
Faust requested Chandler consent to a search of her vehicle. Before reading the consent form to her, Faust told Chandler that “it would be a lot easier if you would just make things easy.” Faust read the consent form aloud. He advised Chandler of her right to refuse consent and that if she refused, barring any other reason to detain her, she could leave. He also explained if she consented, she had a right to be present during the search and could withdraw her consent at any time. Faust asked whether she would give consent, and Chandler responded “no.” 
Faust then discussed his next steps. “I know, but at this time . . . we are going to apply for a search warrant, okay, and that is kinda going to prolong the inevitable. I would just like it to be easier.” Chandler replied, “Go ahead.” Faust then inquired, “What’s that ma’am?,” to which Chandler repeated “Go ahead.” Faust asked, “Are you sure?” Chandler answered, “Yeah.” Faust countered, “So you’re saying yes?” Chandler responded, “Yes.” To confirm Chandler’s decision, Faust re-read her the consent-to-search form in its entirety. Faust then again asked Chandler if she consented to the search of her vehicle; she responded “yes.” Faust repeated for the Mobile Video Recorder (MVR) in the police vehicle that Chandler had initially denied consent but changed her mind and consented because she “did not want to wait any longer.” The search produced a bag of marijuana and a loaded .22 caliber pistol. 
Defendant admitted to ownership of the marijuana and the pistol. He was charged with unlawful possession of a weapon, fourth-degree child abuse, and a disorderly persons offense for possession of marijuana. At a suppression hearing, the trial court found that Faust had probable cause to pull the vehicle over and for a search. Although the court found that several of the factors set forth in State v. King, 44 N.J. 346, 352-53 (1965), militated against a finding of Chandler’s voluntary consent, it determined the totality of the circumstances indicated that the consent to search was valid and not coerced. The Appellate Division affirmed based on the totality of the evidence.
The Court granted certification, limited to the issue of whether Chandler’s “consent to search the motor vehicle was freely and voluntarily given.” 229 N.J. 161 (2017). 
HELD: Because the trial court’s determination that the driver ultimately knowingly and voluntarily gave consent to search is supported by sufficient credible evidence, the trial court properly denied defendant’s motion to suppress the evidence seized during the search. 

1.   In reviewing the grant or denial of a motion to suppress, an appellate court will uphold the trial court’s factual findings underlying that decision so long as those findings are supported by sufficient credible evidence in the record. Video-recorded evidence is reviewed under the same standard. State v. S.S., 229 N.J. 360, 381 (2017). The panel’s decision here predated the Court’s opinion in S.S. and included findings based on the panel’s own de novo review of the MVR. The Court adheres to the principle enunciated in S.S. 

2. Consent to search is a long-recognized exception to the warrant requirement. Consent searches of motor vehicles that are pulled over by police are valid only if: (1) there is a reasonable and articulable basis beyond the initial valid motor vehicle stop to continue the detention after completion of the valid traffic stop; and (2) the consent is given knowingly and voluntarily. 
3. In State v. King, the Court delineated factors for use in considering the voluntariness of consent. 44 N.J. at 352-53. Factors potentially indicating coerced consent include: “(1) that consent was made by an individual already arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; [and] (5) that consent was given while the defendant was handcuffed.” Ibid. Factors potentially indicating voluntariness of consent include: “(1) that consent was given where the accused had reason to believe that the police would find no contraband; (2) that the defendant admitted his guilt before consent; [and] (3) that the defendant affirmatively assisted the police officers.” Id. at 353. The Court emphasized that those factors were not commandments, but “guideposts to aid a trial judge in arriving at his conclusion.” Ibid. Voluntariness depends on “the totality of the particular circumstances of the case” with each case “necessarily depend[ing] upon its own facts.” Ibid. 

4. After determining the automobile stop was valid, the trial court acknowledged and evaluated the King factors but found that Chandler consented to the search voluntarily even though a majority of those factors cut against a finding of voluntariness. Notably, the court stressed the officer’s lack of insistence, the short period between the initial refusal and the consent, the officer’s non-aggressive request for clarification, and Chandler’s repeated affirmations that she did, in fact, give her consent to search. In the trial court’s view, the video evidence was more compelling than the results suggested by a mechanical application of the King factors to the facts of the case. Over fifty years ago, when King was decided, MVRs did not exist. Because of rapid developments in technology, MVRs are increasingly mounted in police vehicles, having become another important tool with the capacity to aid in the search for the truth. The MVR aided the trial court here because it permitted visual and audial evaluation of the police and driver’s interaction on the issue of consent. Specifically, the MVR footage helped the trial court determine that Chandler voluntarily consented to the search of her vehicle. Sufficient credible evidence supports that determination. 

5. Defendant contends that Faust’s statement—“We are going to apply for a search warrant, okay, and that is just kinda going to prolong the inevitable”—coerced Chandler’s consent. Although the use of the term “inevitable” was somewhat anticipatory as to what might follow, the manner in which it was used here was not coercive. As a best practice, police officers should tell a suspect only the measures they intend to take—apply for a search warrant—and should not offer a prediction about whether a warrant will issue. Here, Faust had probable cause to support the issuance of a search warrant given the odor of burnt marijuana. Faust’s statement was a candid assessment of the likelihood that a judge would grant his application for a search warrant. 
6. Sufficient credible evidence supports the trial court’s determination that Chandler’s consent was voluntary under the totality of the circumstances, despite the presence of several of the potentially coercive King factors. Here, technological advancements permitted the trial court to better evaluate the manner in which Faust obtained consent. Such possibilities—which are increasingly common today—are precisely why the King Court factors are guideposts rather than rigid absolute authority. 

The judgment of the Appellate Division is AFFIRMED

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.

Warrantless blood draw permitted in fatal accident based on exigency State v. Shayna Zalcberg

Warrantless blood draw permitted in fatal accident based on exigency
State v. Shayna Zalcberg(A-41-16) (078308)  Argued November 6, 2017 -- Decided March 27, 2018  FERNANDEZ-VINA, J., writing for the Court.            
         In this case, the Court considers whether police officers violated the Fourth Amendmentof the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution when they took a sample of defendant’s blood without a warrant during an investigation of alleged driving while intoxicated.            
         On the night of July 27, 2011, the Freehold Township Police Department received a report of a motor vehicle accident and dispatched officers to the scene. On their arrival, the officers determined that the accident was serious and called emergency medical and fire personnel for assistance. The police secured the roadway so that no other vehicles could approach the crash in order to render the situation less dangerous for the first responders. Because the accident scene was on a major thoroughfare and the crash coincided with the first night of the heavily trafficked Monmouth County Fair, several officers were deployed to block off access to the road and to direct traffic. They continued to do so throughout the entirety of the accident investigation. All three occupants of defendant’s vehicle were transported via helicopter to Jersey Shore Medical Center for treatment.            
         Two of the emergency medical personnel expressed their concern to a police officer that defendant had smelled of alcohol. Further, after the top of defendant’s vehicle had been removed, officers observed a miniature bottle of an alcoholic beverage in the vehicle’s console. The officers concluded that there was probable cause to believe that defendant had been driving while under the influence of alcohol. Because defendant was incapacitated as a result of her injuries and therefore unable to undergo field sobriety tests, the officers decided that it would be prudent to obtain a sample of defendant’s blood.        
           At the time of the accident, it was common practice in the Freehold Township Police Department to take blood samples in serious motor vehicle accidents. Warrants were then available telephonically under New Jersey Court Rule 3:5-3(b), but none of the police officers present believed that a search warrant was required to obtain a blood sample and none of them had been trained in obtaining one. Thus, there was no discussion about obtaining a search warrant for the sample of defendant’s blood. An officer was dispatched to acquire the sample.          
The officer arrived at the hospital shortly thereafter and inquired into defendant’s location. The officer was instructed that he would have to wait but was not given an estimate as to how long. About an hour later, the officer was granted access to defendant and requested that a nurse obtain a sample of her blood. The nurse extracted the blood sample and delivered it to the officer.            
         A grand jury charged defendant with second-degree vehicular homicide, two counts of third-degree assault by auto, and fourth-degree assault by auto. Defendant filed a pre-trial motion to suppress the results of the warrantless blood test. The trial court granted defendant’s motion to suppress in a written opinion. After finding that the officers had probable cause to obtain a blood sample, the judge held that the State failed to establish that an exigency existed sufficient to constitute a recognized exception to the warrant requirement. The judge determined, based upon the totality of the circumstances, that the only exigency the State could establish was the natural metabolization of alcohol in defendant’s blood, which was alone insufficient to justify a warrantless blood draw under Missouri v. McNeely,  569 U.S. 141(2013), and State v. Adkins,  221 N.J. 300, 303 (2015). An Appellate Division panel affirmed, substantially for the reasons expressed in the trial judge’s written decision. The Court granted the State’s motion for leave to appeal.  229 N.J. 249(2017).  HELD: The totality of the circumstances in this case evince an objective exigency, relaxing the need for a warrant and rendering the officer’s warrantless blood draw constitutional.                                                             

         1. A warrantless search is constitutionally invalid unless one of the few well-delineated exceptions to the warrant requirement applies. The exigent-circumstances exception is frequently cited in connection with warrantless blood draws. In Schmerber v. California,  384 U.S. 757(1966), the United States Supreme Court established that a compelled taking of a blood sample for the purpose of alcohol-content analysis constitutes a search within the Fourth Amendment’s framework. Approximately fifty years later, in McNeely, the Supreme Court clarified that while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances. 569 U.S. at 156
          2. Prior to McNeely, New Jersey, like many states,   provided de facto, if not de jure, support for law enforcement to believe that alcohol dissipation in and of itself supported a finding of exigency for a warrantless search of bodily fluids in suspected driving-under-the-influence cases. Adkins,  221 N.J. at 303. Based on that pre-McNeely understanding, the defendant in Adkins, suspected of drunk driving, was subjected to a warrantless blood test following a single-car accident. Id. at 302. On appeal, the Court pronounced that McNealy’s directive that courts must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s natural dissipation of alcohol would receive   pipeline retroactivity.  Id. at 312, 317. The Court directed that reviewing courts must focus on the objective exigency of the circumstances that the officer faced in the situationand stated that the potential dissipation of [blood-alcohol] evidence may be given substantial weight as a factor to be considered in the totality of the circumstancesId. at 303 (emphases added). 
         3. In State v. Jones, the Appellate Division determined that a warrantless blood draw was constitutional under the totality of the circumstances.  441 N.J. Super. 317, 321 (App. Div. 2015). Jones involved a defendant who caused a three-vehicle accident at a heavily traveled intersection during rush hour. Several police officers, EMS personnel, and firefighters arrived to manage the scene and tend to the occupants of the three vehicles. The defendant was unconscious in her car; it took half an hour to remove her from her vehicle, at which time emergency personnel smelled alcohol on her breath. One officer proceeded to the hospital to follow up on the defendant’s injuries. When the defendant regained consciousness at the hospital, she displayed signs of intoxication, such as slurred speech and inability to answer questions. Moreover, the defendant admitted to the officer that she had consumed alcohol earlier. Approximately one hour and fifteen minutes after the accident occurred, a nurse drew a sample of the defendant’s blood at the officer’s request. The officer did not seek a warrant before ordering the test because he was not required tounder standard procedure and had not received training on telephonic warrants. 
         4. Here, defendant’s accident was a serious one that occurred on a busy state highway on the night of a nearby event that drew unusually high traffic. Any delay in seeking to obtain defendant’s blood sample after the establishment of probable cause is attributed to the complexity of the situation and the reasonable allocation of limited police resources not a lack of emergent circumstances. The officers’ lack of awareness of any formal procedure through which they could obtain a telephonic warrant, coupled with their belief that they did not need such a warrant, suggests that there was no reasonable availability of a warrant. Accidents do not, per se, create objective exigency, but the circumstances that accompany them may factor into a court’s exigency analysis. The facts of this case, in totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established telephonic warrant system, and the myriad duties with which the police officers present were tasked.  Substantial weight is also afforded to the potential dissipation ofthe alcohol in defendant’s blood. Adkins,  221 N.J. at 303. The warrantless blood draw did not violate defendant’s constitutional rights in this case. 
         The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.           
          JUSTICES ALBIN AND TIMPONE, DISSENTING, are of the view that the majority has not applied the principles set forth in McNeely and stress that warrantless searches are presumptively invalid. Justices Albin and Timpone add that a deferential standard of review should guide the Court in reviewing a suppression order. An officer’s ignorance of the law does not justify the violation of a person’s federal constitutional rights, according to Justices Albin and Timpone.        

Friday, May 11, 2018

2c:35-5 Manufacturing, Distributing or Dispensing.

2c:35-5 Manufacturing, Distributing or Dispensing.  a.  Except as authorized by P.L.1970, c.226 (C.24:21-1 et seq.), it shall be unlawful for any person knowingly or purposely:

   (1)  To manufacture, distribute or dispense, or to possess or have under his control with intent to manufacture, distribute or dispense, a controlled dangerous substance or controlled substance analog; or

   (2)  To create, distribute, or possess or have under his control with intent to distribute, a counterfeit controlled dangerous substance.

   b.   Any person who violates subsection a. with respect to:

   (1)  Heroin, or its analog, or coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, or analogs, except that the substances shall not include decocainized coca leaves or extractions which do not contain cocaine or ecogine,  or 3,4-methylenedioxymethamphetamine or 3,4-methylenedioxyamphetamine, in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree.  The defendant shall, except as provided in N.J.S.2C:35-12, be sentenced to a term of imprisonment by the court.  The term of imprisonment shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole.  Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;

   (2)  A substance referred to in paragraph (1) of this subsection, in a quantity of one-half ounce or more but less than five ounces, including any adulterants or dilutants is guilty of a crime of the second degree;

   (3)  A substance referred to in paragraph (1) of this subsection in a quantity less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

   (4)  A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of one ounce or more including any adulterants or dilutants is guilty of a crime of the second degree;

   (5)  A substance classified as a narcotic drug in Schedule I or II other than those specifically covered in this section, or the analog of any such substance, in a quantity of less than one ounce including any adulterants or dilutants is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

   (6)  Lysergic acid diethylamide, or its analog, in a quantity of 100 milligrams or more including any adulterants or dilutants, or phencyclidine, or its analog, in a quantity of 10 grams or more including any adulterants or dilutants, is guilty of a crime of the first degree. Except as provided in N.J.S.2C:35-12, the court shall impose a term of imprisonment which shall include the imposition of a minimum term, fixed at, or between, one-third and one-half of the sentence imposed by the court, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $500,000.00 may be imposed;

   (7)  Lysergic acid diethylamide, or its analog, in a quantity of less than 100 milligrams including any adulterants or dilutants, or where the amount is undetermined, or phencyclidine, or its analog, in a quantity of less than 10 grams including any adulterants or dilutants, or where the amount is undetermined, is guilty of a crime of the second degree;

   (8)  Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of five ounces or more including any adulterants or dilutants is guilty of a crime of the first degree. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;

   (9)  (a)  Methamphetamine, or its analog, or phenyl-2-propanone (P2P), in a quantity of one-half ounce or more but less than five ounces including any adulterants or dilutants is guilty of a crime of the second degree;

   (b)  Methamphetamine, or its analog, or phenyl-2-propanone  (P2P), in a quantity of less than one-half ounce including any adulterants or dilutants is guilty of a crime of the third degree except that notwithstanding the provisions of subsection b. of  N.J.S.2C:43-3, a fine of up to $75,000.00 may be imposed;

   (10)  (a)  Marijuana in a quantity of 25 pounds or more including any adulterants or dilutants, or 50 or more marijuana plants, regardless of weight, or hashish in a quantity of five pounds or more including any adulterants or dilutants, is guilty of a crime of the first degree.  Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, a fine of up to $300,000.00 may be imposed;

   (b)  Marijuana in a quantity of five pounds or more but less than 25 pounds including any adulterants or dilutants, or 10 or more but fewer than 50 marijuana plants, regardless of weight, or hashish in a quantity of one pound or more but less than five pounds, including any adulterants and dilutants, is guilty of a crime of the second degree;

   (11)  Marijuana in a quantity of one ounce or more but less than five pounds including any adulterants or dilutants, or hashish in a quantity of five grams or more but less than one pound including any adulterants or dilutants, is guilty of a crime of the third degree except that, notwithstanding the provisions of subsection b. of  N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed;

   (12)  Marijuana in a quantity of less than one ounce including any adulterants or dilutants, or hashish in a quantity of less than five grams including any adulterants or dilutants, is guilty of a crime of the fourth degree;

   (13)  Any other controlled dangerous substance classified in Schedule I, II, III or IV, or its analog, is guilty of a crime of the third degree, except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed; or

   (14)  Any Schedule V substance, or its analog, is guilty of a crime of the fourth degree except that, notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine of up to $25,000.00 may be imposed.

   c.   Where the degree of the offense for violation of this section depends on the quantity of the substance, the quantity involved shall be determined by the trier of fact.  Where the indictment or accusation so provides, the quantity involved in individual acts of manufacturing, distribution, dispensing or possessing with intent to distribute may be aggregated in determining the grade of the offense, whether distribution or dispensing is to the same person or several persons, provided that each individual act of manufacturing, distribution, dispensing or possession with intent to distribute was committed within the applicable statute of limitations.

   L.1987, c.106, s.1;  amended 1988, c.44, s.2; 1997, c.181, s.3; 1997, c.186, s.3; 2000, c.55; 2000, c.136.


Wednesday, May 09, 2018

Offense 39:3-40 (f) (2) Driving while license suspended due to conviction for DWI

 Offense 39:3-40 (f) (2)
Driving while license suspended due to conviction for:
- N.J.S.A. 39:4-50 (DWI driving while intoxicated), or
- N.J.S.A. 39:4-50.4a (refusal to submit to chemical test), or
- N.J.S.A. 39:5-30a to -30e (habitual offender)
1st Offense
- $1000 fine, and
-driver's license suspension of not less than 12 months, nor more than 30 months, and
-imprisonment of not less than 10 days, nor more than 90 days, and
-revocation of all registration certificates for the period driver's license is suspended (see N.J.S.A. 39:3-40.1)

Monday, April 16, 2018

39:4-126 Failure to signal before starting, turning or stopping

39:4-126 Failure to signal before
starting, turning or stopping
  Penalties set forth at 39:4-203 Fine or imprisonment not
exceeding 15 days, or both
fines $50 $200 plus court costs and possible non renewal by insurance company

2 NJ MVC Points 39:4-126 Failure to give proper signal
2

Plus 2 car insurance points
Failure to give proper signal, Signaling before starting, turning or stopping No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in section 39:4-123, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway, or start or back a vehicle unless and until such movement can be made with safety. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.
A signal of intention to turn right or left when required shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.
No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear.
The signal herein required shall be given either by means of the hand and arm in the manner herein specified, or by an approved mechanical or electrical signal device, except that when a vehicle is so constructed or loaded as to prevent the hand and arm signal from being visible, both to front and rear, the signal shall be given by a device of a type which has been approved by the division.
When the signal is given by means of the hand and arm, the driver shall indicate his intention to stop or turn by extending the hand and arm from and beyond the left side of the vehicle in the following manner and such signals shall indicate as follows:
(a) Left turn.--Hand and arm extended horizontally.
(b) Right turn.--Hand and arm extended upward.
(c) Stop or decrease speed.--Hand and arm extended downward.
Amended by L.1951, c. 23, p. 92, s. 67; L.1956, c. 107, p. 485, s. 2.
For information on points, fines, jail and suspension for this violation, go to KennethVercammen.com/traffic_minimum_penalties.htm

Sunday, April 15, 2018

State v. Shayna Zalcberg (A-41-16) (078308) Decided March 27, 2018

State v. Shayna Zalcberg (A-41-16) (078308)

 Decided March 27, 2018

FERNANDEZ-VINA, J., writing for the Court.

         In this case, the Court considers whether police officers violated the Fourth Amendment of the United
States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution when they took a sample of
defendant’s blood without a warrant during an investigation of alleged driving while intoxicated.

          On the night of July 27, 2011, the Freehold Township Police Department received a report of a motor
vehicle accident and dispatched officers to the scene. On their arrival, the officers determined that the accident was
serious and called emergency medical and fire personnel for assistance. The police secured the roadway so that no
other vehicles could approach the crash in order to render the situation less dangerous for the first responders.
Because the accident scene was on a major thoroughfare and the crash coincided with the first night of the heavily
trafficked Monmouth County Fair, several officers were deployed to block off access to the road and to direct
traffic. They continued to do so throughout the entirety of the accident investigation. All three occupants of
defendant’s vehicle were transported via helicopter to Jersey Shore Medical Center for treatment.

          Two of the emergency medical personnel expressed their concern to a police officer that defendant had
smelled of alcohol. Further, after the top of defendant’s vehicle had been removed, officers observed a miniature
bottle of an alcoholic beverage in the vehicle’s console. The officers concluded that there was probable cause to
believe that defendant had been driving while under the influence of alcohol. Because defendant was incapacitated
as a result of her injuries and therefore unable to undergo field sobriety tests, the officers decided that it would be
prudent to obtain a sample of defendant’s blood.

        At the time of the accident, it was common practice in the Freehold Township Police Department to take
blood samples in serious motor vehicle accidents. Warrants were then available telephonically under New Jersey
Court Rule 3:5-3(b), but none of the police officers present believed that a search warrant was required to obtain a
blood sample and none of them had been trained in obtaining one. Thus, there was no discussion about obtaining a
search warrant for the sample of defendant’s blood. An officer was dispatched to acquire the sample.

         The officer arrived at the hospital shortly thereafter and inquired into defendant’s location. The officer was
instructed that he would have to wait but was not given an estimate as to how long. About an hour later, the officer
was granted access to defendant and requested that a nurse obtain a sample of her blood. The nurse extracted the
blood sample and delivered it to the officer.

          A grand jury charged defendant with second-degree vehicular homicide, two counts of third-degree assault
by auto, and fourth-degree assault by auto. Defendant filed a pre-trial motion to suppress the results of the
warrantless blood test. The trial court granted defendant’s motion to suppress in a written opinion. After finding
that the officers had probable cause to obtain a blood sample, the judge held that the State failed to establish that an
exigency existed sufficient to constitute a recognized exception to the warrant requirement. The judge determined,
based upon the totality of the circumstances, that the only exigency the State could establish was the natural
metabolization of alcohol in defendant’s blood, which was alone insufficient to justify a warrantless blood draw
under Missouri v. McNeely, 
569 U.S. 141 (2013), and State v. Adkins, 
221 N.J. 300, 303 (2015). An Appellate
Division panel affirmed, substantially for the reasons expressed in the trial judge’s written decision. The Court
granted the State’s motion for leave to appeal. 
229 N.J. 249 (2017).

HELD: The totality of the circumstances in this case evince an objective exigency, relaxing the need for a warrant and
rendering the officer’s warrantless blood draw constitutional.

                                                           1
 1. A warrantless search is constitutionally invalid unless one of the few well-delineated exceptions to the warrant
requirement applies. The exigent-circumstances exception is frequently cited in connection with warrantless blood
draws. In Schmerber v. California, 
384 U.S. 757 (1966), the United States Supreme Court established that a compelled
taking of a blood sample for the purpose of alcohol-content analysis constitutes a search within the Fourth
Amendment’s framework. Approximately fifty years later, in McNeely, the Supreme Court clarified that “while the
natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it
does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be
determined case by case based on the totality of the circumstances.” 
569 U.S. at 156. (pp. 12-16)

2. Prior to McNeely, New Jersey, like many states, “provided de facto, if not de jure, support for law enforcement to
believe that alcohol dissipation in and of itself supported a finding of exigency for a warrantless search of bodily
fluids in suspected driving-under-the-influence cases.” Adkins, 
221 N.J. at 303. Based on that pre-McNeely
understanding, the defendant in Adkins, suspected of drunk driving, was subjected to a warrantless blood test
following a single-car accident. Id. at 302. On appeal, the Court pronounced that McNeely’s directive—that “courts
must evaluate the totality of the circumstances in assessing exigency, one factor of which is the human body’s
natural dissipation of alcohol”—would receive “pipeline retroactivity.” Id. at 312, 317. The Court directed that
reviewing courts must “focus on the objective exigency of the circumstances that the officer faced in the situation”
and stated that the “potential dissipation of [blood-alcohol] evidence may be given substantial weight as a factor to
be considered in the totality of the circumstances.” Id. at 303 (emphases added). (pp. 16-18)

3. In State v. Jones, the Appellate Division determined that a warrantless blood draw was constitutional under the
totality of the circumstances. 
441 N.J. Super. 317, 321 (App. Div. 2015). Jones involved a defendant who caused a
three-vehicle accident at a heavily traveled intersection during rush hour. Several police officers, EMS personnel,
and firefighters arrived to manage the scene and tend to the occupants of the three vehicles. The defendant was
unconscious in her car; it took half an hour to remove her from her vehicle, at which time emergency personnel
smelled alcohol on her breath. One officer proceeded to the hospital to follow up on the defendant’s injuries. When
the defendant regained consciousness at the hospital, she displayed signs of intoxication, such as slurred speech and
inability to answer questions. Moreover, the defendant admitted to the officer that she had consumed alcohol
earlier. Approximately one hour and fifteen minutes after the accident occurred, a nurse drew a sample of the
defendant’s blood at the officer’s request. The officer did not seek a warrant before ordering the test because “he
was not required to” under standard procedure and had not received training on telephonic warrants. (pp. 18-21)

4. Here, defendant’s accident was a serious one that occurred on a busy state highway on the night of a nearby event
that drew unusually high traffic. Any delay in seeking to obtain defendant’s blood sample after the establishment of
probable cause is attributed to the complexity of the situation and the reasonable allocation of limited police
resources—not a lack of emergent circumstances. The officers’ lack of awareness of any formal procedure through
which they could obtain a telephonic warrant, coupled with their belief that they did not need such a warrant,
suggests that there was no reasonable availability of a warrant. Accidents do not, per se, create objective exigency,
but the circumstances that accompany them may factor into a court’s exigency analysis. The facts of this case, in
totality, indicate an objective exigency: a fatal accident with multiple serious injuries, the absence of an established
telephonic warrant system, and the myriad duties with which the police officers present were tasked. “Substantial
weight” is also afforded to the “potential dissipation of” the alcohol in defendant’s blood. Adkins, 
221 N.J. at 303.
The warrantless blood draw did not violate defendant’s constitutional rights in this case. (pp. 21-23)

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

          JUSTICES ALBIN AND TIMPONE, DISSENTING, are of the view that the majority has not applied
the principles set forth in McNeely and stress that warrantless searches are presumptively invalid. Justices Albin
and Timpone add that a deferential standard of review should guide the Court in reviewing a suppression order. An
officer’s ignorance of the law does not justify the violation of a person’s federal constitutional rights, according to
Justices Albin and Timpone.

         CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, and SOLOMON join in
JUSTICE FERNANDEZ-VINA’s opinion. JUSTICES ALBIN and TIMPONE filed a separate, dissenting
opinion.