2053 Woodbridge Ave. Edison, NJ 08817

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".

Wednesday, May 26, 2010



(1) In the absence of a warrant or a recognized exception
from the Fourth Amendment's warrant requirement, the police
could not lawfully enter defendant's home to conduct a Terrytype
detention and investigation of defendant.
(2) A police officer's wedging herself in the doorway to
prevent defendant from closing his front door was entry into the
(3) The police failed to show either "hot pursuit" exigent
circumstances or a community caretaking exception from the
warrant requirement.
(4) Although the police entry was unlawful, defendant had
no right to resist physically, and the search of his person
incident to arrest was lawful.
(5) Consent to search defendant's apartment, given by
defendant's wife, was tainted by the unconstitutional police
conduct and was not shown to be voluntary.



Defendant primarily objects to the denial of his motion to
suppress statements he made to New Jersey law enforcement
officers after he was incarcerated for a parole violation in New
York. Accepting the judge's factual findings, we conclude that
the statements, which the judge found were made during a meeting
defendant requested to negotiate a plea, should have been
excluded pursuant to N.J.R.E. 410.



This appeal required us to determine whether evidence found
during the search incident to defendant's arrest should have
been suppressed because the dispatcher who incorrectly informed
the arresting officer that there was an outstanding arrest
warrant acted unreasonably under the circumstances, even though
the conduct of the arresting officer himself was reasonable.
The warrant at issue, which was ten years old at the time, had
the same birth month, but a different birth day and year. The
first name on the warrant was a variant spelling of defendant’s
first name. We concluded that suppression is required and,
consequently, reversed the convictio

State v. Danny Mai (A-98-09) 5-6-10

State v. Danny Mai (A-98-09) 5-6-10

The officers presented sufficient facts in the
totality of the circumstances that would create in a
police officer a heightened awareness of danger that
would warrant an objectively reasonable officer in
securing the scene in a more effective manner by
ordering the passenger to exit the car. Those same
circumstances authorize a police officer to open a
vehicle door as part of ordering a passenger to exit.
Thus, the seizure of the weapon was proper under the
plain view doctrine, and the seizure of the holster
and loaded magazine from the passenger was lawful as
the fruits of a proper search incident to an arrest.

State of New Jersey v. J.G. (A-44-08)

State of New Jersey v. J.G. (A-44-08) 4-7-10

The cleric-penitent privilege applies when, under the
totality of the circumstances, an objectively
reasonable penitent would believe that a communication
was secret, that is, made in confidence to a cleric in
the cleric’s professional character or role as a
spiritual advisor.

Sunday, May 23, 2010

US Supreme Court Cases dealing with criminal law and procedure

US Supreme Court Cases dealing with criminal law and procedure
By Kenneth Vercammen Past Vice Chair ABA Criminal Law Committee General Practice, Solo and Small Firm Division

1. No specific words required for Miranda warnings Florida v. Powell 175 L.Ed 1009 __ S. Ct. ___ (Dec. 7, 2009)

In a state prosecution for possession of a weapon by a convicted felon, a reversal of defendant's conviction on Miranda grounds is reversed where the police satisfied Miranda's requirements by informing defendant that he had "the right to talk to a lawyer before answering any of their questions," and that he had "the right to use any of his rights at any time he wanted during the interview.
Advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time . . . during the interview,” satisfies Miranda.

2 US Supreme Court Rules Lab Report Not Admissible in Criminal Case. Melendez-Diaz v. Mass 129 S.Ct. 2527 (2009)
Defendant's drug conviction is reversed, where the trial court's admission of the prosecution's certificates by laboratory analysts, stating that material seized by police and connected to Defendant was cocaine of a certain quantity, violated petitioner's Sixth Amendment right to confront the witnesses against him.
3 Police May Interrogate Even if Public Defender Assigned. Montejo v. Louisiana 129 S. Ct. 2079 (2009)

Michigan v. Jackson, which forbids police from initiating interrogation of a criminal defendant once he has invoked his right to counsel at an arraignment or similar proceeding, is overturned. Source: New Jersey Law Journal June 1, 2009

4. School Officials Cannot Search Child’s Underwear for Drugs. Safford Unified School. Dist. No. 1. v. Redding 129 S.Ct. 2633 (2009)

In a 42 U.S.C. section 1983 action alleging an unlawful search of a student, the denial of summary judgment based on qualified immunity is affirmed where the search of Plaintiff's underwear violated the Fourth Amendment because the facts did not give school officials reasonable suspicion to search her underwear.

US v. Stevens, No. 08–769
 U.S. Supreme Court, April 20, 2010 The Third Circuit's reversal of defendant's conviction under 18 U.S.C. section 48 for selling videos depicting dog fighting is affirmed where section 48 was substantially overbroad, and therefore invalid under the First Amendment, because section 48 explicitly regulated expression based on content and was thus presumptively invalid

5. Padilla v Kentucky ___ S. Ct. _____ No. 08–651. Argued October 13, 2009 —Decided March 31, 2010
Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to drug-distribution charges in Kentucky. In post conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice The US Supreme Court held Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient

6. Police can Enter Home Under Emergency Aid Exception Michigan v. Fisher 130 S. Ct 546 U.S. Supreme Court December 07, 2009
 No. 09–91

In an assault prosecution, grant of petitioner's motion to suppress evidence that he pointed a rifle at an officer when he entered his house is reversed where the officer did not violate the Fourth Amendment because he was responding to a report of a disturbance and encountered a tumultuous situation in the house, which justified a warrantless search under the emergency aid exception