Monthly Archives: September 2007

Warrantless Residential Entry by Cops Was Reasonable – State v. Laboo

Friday’s Appellate Division decision in State v. Laboo is an important step in the development of the law related to warrantless residential entries by the police. In Laboo, the Court ruled that a forced entry by the police into an occupied apartment without a warrant was justified as reasonable based upon probable cause, coupled with exigent circumstances. The case involved a police investigation into a series of armed robberies. During one of the robberies, a cell phone was taken. Police obtained a warrant from the Superior Court to track the cell phone signal. Within 30 minutes, the signal led the police to an apartment house and a particular apartment therein.

The police knocked on the apartment door and announced their presence. This caused panic within the apartment, evidenced by shouts from within and sounds of rapid movement. As a result, the police made a forced entry and recovered evidence inside that tied the occupants to the robberies.

The Court held that although the exigency was to some degree created by the police themselves, their actions were reasonable and supported by ample probable cause to believe that evidence related to the crimes could be located within the apartment.

Download a copy of State v. Laboo.

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Judge Dismissed Her Buddy’s Ticket in Chambers: ACJC – In re Elias

In a formal complaint released yesterday, the Advisory Committee on Judicial Conduct (ACJC) has charged that Municipal Court Judge Sybil Elias of the East Orange Municipal Court presided over a traffic case involving a close, personal friend. Prior to the beginning of the session, the friend met with the municipal prosecutor and negotiated a dismissal of her case with court costs. However, the friend then met with Judge Elias in chambers on an ex parte basis and discussed the ticket in the absence of the prosecutor. Following the discussion, the judge dismissed the ticket in chambers and did not assess the court costs, contrary to the agreement with the prosecutor.

The ACJC complaint maintains that Judge Elias should have disqualified herself from hearing her friend’s case, based upon their relationship. Moreover, by dismissing the case privately, in chambers, the judge violated the provisions of Rule 2:15-8(a)(1) and Rule 2:15-8(a)(6) as well as several canons of the Code of Judicial Conduct.

Judge Elias will be required to file an answer to the complaint and will thereafter be entitled to a full evidentiary hearing before the ACJC. The final discipline in these cases must come from the Supreme Court.

Download a copy of Elias Formal Complaint.

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“Giant Inflatable Rat Ordinance” Found to be Valid – State v. DeAngelo

Today’s decision from the Appellate Division in State v. DeAngelo involves an attack on the constitutionality of a municipal ordinance. The ordinance in question was used to prosecute a union representative for displaying a 10 foot blow-up rat at the scene of a labor dispute demonstration. In municipal court, the State successfully prosecuted the defendant under a local sign ordinance. In affirming the municipal court conviction, the Appellate Division considered a wide array of attacks on the ordinance, including 1st Amendment considerations, selective enforcement, federal preemption and vagueness. The opinion provides valuable insight into the range of possible challenges to the validity of municipal ordinances under New Jersey law.

Due to a dissent in this case by Judge Sabatino, the defendant will have an appeal as of right to the New Jersey Supreme Court.

Download a copy of State v. DeAngelo.

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Crawford & Miranda Errors Require Reversal of Child Sexual Assault Conviction – State v. Nyhammer

Two critical trial level errors have resulted in the reversal of a child sexual assault conviction in State v. Nyhammer. The Appellate Division ruled that a videotaped statement of the child victim should not have been admitted in evidence under the so-called “fresh complaint” exception to the hearsay rule, NJRE 803(c)(27). The Court found that the statement was testimonial within the meaning of Crawford v. Washington. The child had not been subject to previous cross exampination and refused to provide either direct evidence or be subject to cross examination at trial.

The Defenant’s confession should also have been suppressed on Miranda grounds according to the Appellate Division. In order to understand the Court’s ruling, some background is necessary.

Whenever a suspect in a criminal case is subject to a custodial interrogation by the police, he must be advised of his so-called Miranda rights.[1] Conversely, no such warning is required when the police questioning takes place in a non-custodial setting.[2] The critical issue as to when a suspect is in custody for Miranda purposes is generally decided on a case-by-case basis based upon the totality of the circumstances.[3] A formal arrest is not the critical factor. Rather, the test for “custody” is whether “the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely.”[4]

Often, over time, the focus of a police interview with a person may transmogrify from a non-threatening, investigative transaction to one involving police accusations of serious criminal conduct by the suspect. As a result of this change in focus in the topic and tone of the interrogation by the police, a non-custodial interrogation may ultimately become custodial in the Miranda sense. This is especially likely if the suspect initially believed that he was not the target of a criminal investigation and is later accused of criminal conduct during the interview. When the nature of the questioning would reasonably believe the suspect that he is not free to leave, he is in custody for Miranda purposes. At this point, the suspect should be advised of his Miranda rights in order to ensure the admissibility of any admissions the defendant may make.

A more difficult question related to suspect interview procedures concerns Miranda warnings that are administered to the suspect prior to the time the interview becomes custodial in the Miranda sense. Do the initial Miranda warnings carry over to effectively advise the suspect of his constitutional rights once the interrogation becomes custodial in nature? That precise issue was discussed in the Nyhammer case.

In Nyhammer, the defendant was summoned by the police to headquarters in order to provide information that he might have as a witness to the sexual assault of a child committed by a person the defendant knew. The police did not reveal to the defendant that in addition to the information he might possess as a witness, he was also suspected by the police of having perpetrated a series of sexual assaults as well.

The defendant voluntarily reported to headquarters for the purpose of making a witness statement. He was initially given his Miranda warnings[1] by the police, waived his right to remain silent and was questioned about what he knew about the sexual assaults committed by another person.

During the course of the interrogation, the police shifted the focus of the interview and confronted that the defendant with evidence that he himself had been subject to sexual abuse and had sexually abused the same child victim. These allegations by the police had a devastating impact on the defendant, causing him to become extremely distraught and brought to tears. The police continued to confront the defendant with this evidence. As a result, the defendant confessed to having sexually assaulted the child victim as alleged by the police. His confession was electronically recorded.

At trial, the judge admitted the defendant’s confession, finding that his initial waiver of the right to remain silent after being advised of his Miranda rights at the start of the interview rendered his subsequent confession knowing and voluntary. The Appellate Division reversed, holding that when the defendant was initially advised of his rights by the police, he believed he was being interviewed merely as a witness. This false perception was encouraged by the police. Accordingly, at the point where the focus of the interview changed from merely investigatory to accusatory, the police should have re-administered the defendant’s Miranda warnings. The failure of the police to do this rendered the confession involuntary.

Download a copy of State v. Nyhammer.

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[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).
[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).
[2] For example, see Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) holding that roadside questioning during a routine motor vehicle stop does not constitute custody for Miranda purposes.
[3] State v. Stott, 171 N.J. 343, 794 A.2d 120 (2002).
[4] State v. Choinacki, 324 N.J.Super. 19, 44, 734 A.2d 324 (App. Div. 1999).

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Muni-mail – No S.L.A.P. or Weekend Jail in 3rd Offense DWI Sentences

The holding by the Appellate Division this morning in State v. Kotsev can be read as standing for the proposition that alternative sentencing options in lieu of jail, such as Sheriff’s Labor Assistance Programs (S.L.A.P.) and weekend jail are not permitted in cases involving 3rd offense drunk drivers. The only permissible alternatives are straight jail and in-patient therapy for a period not to exceed 90 days.

The Court’s opinion affirms a Law Division decision in the trial de novo from municipal court. The Law Division’s written decision can be found at here.

There are a number of important issues left unresolved by the Appellate Division in Kotsev:

1. The Court notes that a decision in the Law Division, State v. Grabowski, 388 N.J. Super. 431 (Law Div. 2006) which permitted weekend jail as an option is contrary to an earlier Appellate Division holding in State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006). The Court in Kotsev, however, does not specifically state that Grabowski is overruled or disapproved.

2. The Court based its holding on the state of the law in 1993 which is the time the offense occurred. Weekend jail terms in drunk driving cases were authorized at that point by statute (N.J.S.A. 2A:8-30.1 now repealed) for sentences in excess of 90 days. This issue is not reviewed in Kotsev.

3. By comparing the similarities between the 1993 dwi statute and the version in effect today, the Court appears to hold that both S.L.A.P. and weekend jail were unavailable in 1993 and are equally unavailable today.

Download a copy of State v. Kotsev.

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Findings from Alcotest Software House Analysis

The manufacturer of the Alcotest 7110 and the defense team in State v. Chun have received reports from their respective software testing houses. The report for the defense from Base One reports numerous critical errors. The manufacturers report from SysTest is much more sanguine. The reports will be the focus of heated litigation in September in a hearing before the Supreme Court’s Special Master, Judge. King.

To read the Base One report, click here

To read the STSTEST report, click here

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Software House Findings in Chun Case

SUMMARY OF THE SOFTWARE HOUSE FINDINGS FOR THE
SOURCE CODE OF THE DRAEGER ALCOTEST 7110 MKIII-C

After two years of attempting to get the computer based source code for the Alcotest 7110 MKIII-C, defense counsel in State v. Chun were successful in obtaining the code, and had it analyzed by Base One Technologies, Inc.
By making itself a party to the litigation after the oral arguments in April, Draeger subjected itself to the Supreme Court’s directive that Draeger ultimately provide the source code to the defendants’ software analysis house, Base One.
Despite Draeger’s protestations that the code was proprietary, Base One found that the code consists mostly of general algorithms arranged in a manner to implement the breath testing sequence. “That is, the code is not really unique or proprietary.”
In a report released August 28, 2007, Base One determined:

As a matter of public safety, the Alcotest should be suspended from use until the software has been reviewed against an acceptable set of software development standards, and recoded and tested if necessary. An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.

Draeger reviewed the code, as well, through its software house, SysTest Labs, which agreed with Base One, that the patchwork code that makes up the 7110 is not written well, nor is it written to any defined coding standard. SysTest said, “The Alcotest NJ3.11 source code appears to have evolved over numerous transitions and versioning, which is responsible for cyclomatic complexity.”

The best thing SysTest said about the machine was, “The translation from German to English of the comments within the major components shows the logical intent of the programmers to produce reliable and valid test results. SysTest was unable to find any evidence of any intention to mis-direct or re-direct the test results or report anything other than valid results.”
SysTest only looked for “mal-ware”, not for functioning of the code.

Base One, however, did an extensive evaluation, finding 19,400 potential errors in the code.
Among its findings are:

1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing: The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style.

The software development life-cycle concept is governed by one of the nationally and internationally recognized development standards to prevent defects from entering the software during the design process, and to find and eliminate more defects as the software is coded, tested, and released to the field. This concept of software development using standards requires extensive and meticulous supporting data, and notations in source files, and a configuration management system. None of this methodology is evident in the Alcotest code. Further, the decision method of how to allocate the architecture and assignment of tasks does not match any of the software standards. This further substantiates that software development standards were not used to verify or test the software, including the ISO 9000 family of standards.

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Federal Drug Administration (FDA), as well as commercial standards used in devices for public safety. This means the Alcotest would not be considered for military applications such as analyzing breath alcohol for fighter pilots. If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards.

2. Readings are Not Averaged Correctly: When the software takes a series of readings, it first averages the first two readings. Then, it averages the third reading with the average just computed. Then the fourth reading is averaged with the new average, and so on. There is no comment or note detailing a reason for this calculation, which would cause the first reading to have more weight than successive readings. Nonetheless, the comments say that the values should be averaged, and they are not.

3. Results Limited to Small, Discrete Values: The A/D converters measuring the IR readings and the fuel cell readings can produce values between 0 and 4095. However, the software divides the final average(s) by 256, meaning the final result can only have 16 values to represent the five-volt range (or less), or, represent the range of alcohol readings possible. This is a loss of precision in the data; of a possible twelve bits of information, only four bits are used. Further, because of an attribute in the IR calculations, the result value is further divided in half. This means that only 8 values are possible for the IR detection, and this is compared against the 16 values of the fuel cell.

4. Catastrophic Error Detection Is Disabled: An interrupt that detects that the microprocessor is trying to execute an illegal instruction is disabled, meaning that the Alcotest software could appear to run correctly while executing wild branches or invalid code for a period of time. Other interrupts ignored are the Computer Operating Property (a watchdog timer), and the Software Interrupt.

5. Implemented Design Lacks Positive Feedback: The software controls electrical lines, which switch devices on and off, such as an air pump, infrared source, etc. The design does not provide a monitoring sensory line (loop back) for the software to detect that the device state actually changed. This means that the software assumes the change in state is always correct, but it cannot verify the action.

6. Diagnostics Adjust/Substitute Data Readings: The diagnostic routines for the Analog to Digital (A/D) Converters will substitute arbitrary, favorable readings for the measured device if the measurement is out of range, either too high or too low. The values will be forced to a high or low limit, respectively. This error condition is suppressed unless it occurs frequently enough.

7. Flow Measurements Adjusted/Substituted: The software takes an airflow measurement at power-up, and presumes this value is the “zero line” or baseline measurement for subsequent calculations. No quality check or reasonableness test is done on this measurement. Subsequent calculations are compared against this baseline measurement, and the difference is the change in airflow. If the airflow is slower than the baseline, this would result in a negative flow measurement, so the software simply adjusts the negative reading to a positive value.
If the measurement of a later baseline is taken, and the measurement is declared in error by the software, the software simply uses the last “good” baseline, and continues to read flow values from a declared erroneous measurement device.

8. Range Limits Are Substituted for Incorrect Average Measurements: In a manner similar to the diagnostics, voltage values are read and averaged into a value. If the resulting average is a value out of range, the averaged value is changed to the low or high limit value. If the value is out of range after averaging, this should indicate a serious problem, such as a failed A/D converter.

9. Code Does Not Detect Data Variations

10. Error Detection Logic: The software design detects measurement errors, but ignores these errors unless they occur a consecutive total number of times. For example, in the airflow measuring logic, if a flow measurement is above the prescribed maximum value, it is called an error, but this error must occur 32 consecutive times for the error to be handled and displayed. This means that the error could occur 31 times, then appear within range once, then appear 31 times, etc., and never be reported. The software uses different criteria values (e.g. 10 instead of 32) for the measurements of the various Alcotest components, but the error detection logic is the same as described.

11. Timing Problems: The design of the code is to run in timed units of 8.192 milliseconds, by means of an interrupt signal to a handler, which then signals the main program control that it can continue to the next segment. The interrupt goes off every 8.192 ms, not 8.192 ms from my latest request for a time delay. The more often the code calls a single 8.192 ms interrupt, the more inaccurate the software timing can be, because the requests from the mainline software instructions are out of phase with the continuously operating timer interrupt routine.

12. Defects In Three Out Of Five Lines Of Code: A universal tool in the open-source community, called Lint, was used to analyze the source code written in C. This program uncovers a range of problems from minor to serious problems that can halt or cripple the program operation. This Lint program has been used for many years. It uncovered that there are 3 error lines for every 5 lines of source code in C.

While Draeger’s counsel claims that the “The Alcotest [7110] is the single best microprocessor-driven evidential breath tester on the market”, Draeger has already replaced the antiquated 7110 with a newer Windows® based version, the 9510. The computer code in the 7110 is written on an Atari®-styled chip, utilizing fifteen to twenty year old technology in 1970s coding style.
There is no doubt that the Supreme Court should declare this machine to be unreliable. If this happens, based on an agreement entered into over 4 years ago between the State and Draeger, the taxpayers of New Jersey can recover the almost $7 million spent on these machines.

We return to court on September 17th to hash this out, unless the Special Master decides the issues without a hearing.

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