Monthly Archives: November 2004
Yesterday’s Appellate Division decision in State v. Badessa will change certain police procedures in future New Jersey road block cases. In Badessa, the Atlantic City police established a late night dwi interdiction road block. The defendant, who was initially approaching the road block, made a legal turn on an intersecting street a block or so away and thus would have avoided the police. The police saw this action and stopped his vehicle. The defendant was promptly arrested for drunk driving. At trial he was acquitted of the dwi charge but found guilty of a companion refusal charge.
The Appellate Division ruled that when a dwi check point zone encompasses intersecting streets, the police must provide proper on-scene warnings that include a “no turns” sign. In this way, a driver will have sufficient notice of the dwi check point and that avoidance of it will result in pursuit by a chase vehicle.
Too bad that this defendant did not take a breath test. Although the Court found that the motor vehicle stop in this case was unreasonable, the panel also ruled that the refusal charge had been so attenuated from the taint of the illegal traffic stop that the refusal evidence need not be suppressed.
Download a copy of State v. Badessa
copyright Muni-mail – 2004 – All rights reserved
Earlier this morning, the Appellate Division released its opinion in State v. Carlino. In this case, the police used the fact that the occupant of a residence that the police planned to raid had surveillance equipment inside the home. The Court ruled that this fact can justify the issuance of a “no-knock” search warrant under the totality of the circumstances test. The Court also upheld the use of language in the search warrant that authorized the police to search any and all persons who arrive at or attempt to depart the residence whom the police reasonably suspect to be involved in the investigation.
Carlino’s way of getting involved with this case was arriving at the scene well after the police had broken down the door and not noticing that all the people in the house with the badges around their necks were police officers.
Note in this decision the great lengths that the Appellate Division goes to confer standing upon Carlino. This was not his residence. He was not there when the police served the warrant. He merely showed up with drugs in his fanny pack after the fact. Yet, the Court permitted him to challenge both the propriety of the warrant and the “no-knock” provision.
Download a copy of State v. Carlino
Yesterday, the United States Supreme Court ruled that drunk driving is not a “crime of violence” within the meaning of the Immigration and Nationality Act (INA). Under that statute, non-citizens who commit crimes of violence that are punishable by a term of imprisonment of at least one year are eligible for deportation. The petitioner in this case, a lawful resident alien, was convicted of drunk driving and causing serious bodily injury in Florida. He was imprisoned for a term of years, during which time the INS instituted removal proceedings against him. In a unanimous opinion written by the Chief Justice, the Court held that state-level drunk driving statutes that contain no mens rea component (like New Jersey) or an element of mere negligent conduct do not constitute crimes of violence and thus do not provide a basis for deportation under the INA.
Download copy of Leocal v. Ashcroft
copyright Muni-mail – 2004 All Rights Reserved