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".

Tuesday, January 07, 2014

State v. David M. Gibson (A-27-12; 070910)

State v. David M. Gibson (A-27-12; 070910)

 There is insufficient evidence in the record to
support a finding that Officer Comegno had probable
cause to arrest Gibson for defiant trespass;
therefore, the subsequent search at the stationhouse
was unconstitutional and the drug evidence seized
during the search must be suppressed. 1-7-14

Wednesday, January 01, 2014



Addressing the impact of Missouri v. McNeely, ___ U.S.
___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), on pending
cases involving warrantless blood tests, we reversed a
trial court order suppressing blood evidence in a DWI and
assault-by-auto case. Consistent with long-standing
rulings of the New Jersey Supreme Court, the police
obtained the blood sample from defendant without a search
warrant. Thereafter, the United States Supreme Court
unexpectedly changed the legal landscape by issuing a
ruling that construed the Fourth Amendment more broadly
than our Court.

On these facts, under Davis v. United States, ___ U.S.
___, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011), suppression
would not be the appropriate remedy under federal
constitutional law, because the New Jersey police were
acting lawfully under established New Jersey precedent at
the time of the search. Further, had our own Supreme Court
issued the McNeely ruling as a construction of the New
Jersey Constitution, the ruling would not have been applied
retroactively. Under these unusual and very limited
circumstances, we held that suppression of the evidence in
this case was not required. 12/20/13