Monthly Archives: May 2010

Muni-mail – No Home Entry for “Terry” Detention Permitted

[5/24/10 – 1:01 am] – On Friday morning, the Appellate Division ruled that there is no recognized exception to the warrant requirement that permits police officers to enter a private residence for the purpose of conducting a “Terry”-type investigative detention. In State v. Jefferson, police officers were investigating drug dealing and possible gun- play. Their investigation led them to a private residence where they encountered the defendant inside the residence. Although they remained outside the residence, the police quickly developed sufficient suspicion to detain the defendant for investigative purposes and made a warrantless entry into the defendant’s residence. Simultaneously with the entry, the defendant resisted the police, was arrested and searched, resulting in the recovery of controlled dangerous substances. After securing the defendant, the police re-entered the residence without a warrant and secured additional criminal evidence.

The Appellate Division ruled that although the police had no constitutional justification to enter the defendant’s residence without a warrant, the recovery of the evidence from his person occurred as a result of a search incident to his arrest for resisting. By contrast, the second entry could not be justified under any exception to the warrant requirement and would result in the suppression of the criminal evidence that was recovered.

Download a copy of State v. Jefferson.

Category: Muni-Mail Archive

Muni-Mail – Report: Car Searches Plummet Following Pena-Flores Decision

[5/24/10 1:18 am] The Supreme Court Special Committee on Telephonic and Electronic Search Warrants (The Pena-Flores Committee) has released its report to the New Jersey Supreme Court. This committee was formed to study the numerous administrative and practical issues in implementing the speedy availability of judges to law enforcement for the purposes of considering telephonic search warrant applications following the Supreme Court’s holding in State v. Pena-Flores, 198 NJ 6 (2009). Among the findings of the committee were that an estimated 92,272 automobile searches occurred on an annual basis prior to the holding in Pena-Flores. Following the case, this number has decreased to a projected 47,045 searches on an annualized basis.

Among the many recommendations by the committee were that, initially, Superior Court Judges continue to consider all telephonic search warrant applications, that a police officer’s telephonic search warrant application be considered with 30 to 45 minutes and that if the recommended system does not work based upon the volume of law enforcement applications, a new system, possibility utilizing municipal court judges be immediately considered.

The Supreme Court invites signed comments on the report from the public. Comments may be sent by June 18th to:

Pena-Flores Committee Report c/o
Glenn A. Grant, J.A.D. Acting Administrative Director of the Courts Attention: Comments on Reports
Hughes Justice Complex; P.O. Box 037 Trenton, New Jersey 08625-0037

Comments on the Committee’s report and recommendations also may be submitted by Internet e-mail to the following address: Comments.Mailbox@judiciary. state.nj.us .

Download a copy of the Committee Report.

Category: Muni-Mail Archive

SCOTUS: No Life Without Parole for Juvies – Graham v. Florida

[5/17/10 – 1:23 pm] This morning, the United States Supreme court ruled that a sentence of life without possibility of parole for a juvenile offender who has been convicted of a non-homicide crime violates the Eighth Amendment’s ban on cruel and unusual punishments. In reaching its decision, the Justices did not rely on the law followed in the vast majority of States that permit such a sentence, but rather based its holding on, among other sources, foreign law.

Download a copy of the Court’s holding in Graham v. Florida.

Category: Muni-Mail Archive

Revoked List Enhancement Repealed by Legislature – NJSA 39:3-40(g)

[05/12/10 – 1:31 pm] Effective January 16, 2010, the legislature repealed the provision of N.J.S.A. 39:3-40(g) which required a $3000 fine to be paid to the Motor Vehicle Commission (MVC) when the underlying reason for the defendant’s suspension came about from a failure to pay surcharges on a timely basis. This sentencing enhancement was formerly imposed in addition to all other sentencing penalties and was collected by the MVC. The $3000 was automatically reduced to a judgment against the defendant until paid in full.

Defendants who have been assessed this fine since January 16th of this year should move for sentence reconsideration pursuant to Rule 7:9-4.

Category: Muni-Mail Archive

Cops May Open Door When Ordering MV Passenger to “GET OUT!” – State v. Mai

[06/10 – 11:23 am] On occasion, when a police officer opens the door of an occupied motor vehicle during the course of an investigation, the officer will notice and seize criminal evidence or contraband that was not previously visible. However, differing decisions by two Appellate Division panels left in doubt the legality of unannounced door openings by police officers during a motor vehicle stop.

This morning, in a case captioned State v. Mai, The New Jersey Supreme Court ruled that when a police officer is justified in ordering a motor vehicle passenger to exit the vehicle, the officer may also open the passenger’s door. In New Jersey, police officers may order a passenger to exit a motor vehicle when the officer has 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 get out of the car. The Justices went on to hold that, “In the realm of defining reasonable searches and seizures, no meaningful or relevant difference exists between the grant of authority to order an occupant of a vehicle to exit the vehicle and the authority to open the door as part of issuing that lawful order. Plain logic demands that the principles that govern whether a passenger of a vehicle lawfully can be ordered out of the vehicle must apply with equal force to whether a police officer is entitled, as a corollary and reasonable safety measure, to open the door as part of issuing a proper order to exit.”

Download a copy of State v. Mai.

Category: Muni-Mail Archive

Muni-Mail – Supreme Court Grants Cert in Controversial Refusal Case – State v. Ciancaglini

[05/18/10 – 10:23] By order of May 7, 2010, the New Jersey Supreme Court has granted certification in the case of State v. Ciancaglini, 411 N.J. Super. 280 (App. Div. 2010). The case involved the sentencing range on refusal convictions and specifically held that a prior refusal conviction under NJSA 39:4-50.4a would enhance a future conviction for drunk driving under NJSA 39:4-50(a). The Appellate Division decision differed markedly from prior case law and has created enormous confusion among courts, prosecutors and the defense bar on the proper way to sentence individuals who have current or previous refusal convictions.

The Supreme Court docket number is C-882-09 (Appeal 65,408). No date has been set for oral argument at this point.

Category: Muni-Mail Archive

No SLAP for Driving on Revoked List Due to DWI – State v. White

[4/29/10 – 8:59 pm] The Committee on Opinion has approved the publication of a decision from the Municipal Court of Byram Township (Sussex County). In the opinion captioned State v. White and written by Hon. Richard Bowe, J.M.C., the Court ruled that the county’s Sheriff’s Labor Assistance Program (SLAP) is not available to a defendant who has been sentenced to a term of incarceration for driving on the revoked list (NJSA 39:3-40) when the underlying reason for the suspension was for a drunk driving conviction. Rather, only a jail term is permissible under the revoked-list statute.

The publication of decisions from the municipal court is extremely rare in New Jersey. However, the holding in White marks the second time that an opinion written by Judge Bowe has been approved for publication by the Committee on Opinions. His earlier opinion, State v. O’Connor, 405 N.J. Super. 185 (Mun. Ct. 2008) explored the question of whether municipal courts have jurisdiction to impose penalties for a violation of a statute related to starting outdoor fire.

Download a copy of State v. White.

Category: Muni-Mail Archive