Monthly Archives: June 2010

Frisk does not mean “Lift up your Shirt!” – State v. Privott

[06/30/10 – 8:34 am] Yesterday, the New Jersey Supreme Court ruled that the fact that the police have a legitimate basis to frisk a criminal suspect for weapons does not provide the officers with the right to lift the suspect’s clothing for the purpose of recovering evidence. In State v. Privott, a five-justice majority ruled that,

“In assessing the scope of the search by the officer, the evidence is clear that defendant was cooperative at all times. When stopped, defendant placed his hands against a fence as instructed by the officer. A reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been the traditional pat-down search of defendant’s outer clothing. That did not occur. Rather, the police officer lifted defendant’s
tee-shirt to expose defendant’s stomach, and in doing so, observed a plastic bag with suspected drugs in the waistband of defendant’s pants. That maneuver exceeded the scope of the patdown search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned.”

Download a copy of the case, State v. Privott.

Category: Muni-Mail Archive

Muni-mail – SCOTUS: Warrantless Search of Employee Text Messages Okay

[06/20/10 – 6:03 pm] On Thursday morning, the United States Supreme Court ruled that the “special needs” exception to the warrant requirement will justify a warrantless search of the stored text messages of a local government employee. The Court’s ruling in Ontario v. Quon dealt with a case where a municipal police department conducted an audit of text messaging from its police department-issued texting devices in an effort to determine cost effectiveness. The search revealed that one officer had used his municipal texting device for personal and improper reasons. The Justices found that since the search was motivated by a legitimate work-related purpose, and because it w as not excessive in scope, the search was reasonable under the 4 th Amendment. Moreover, the municipal employer had a legitimate reason for the search, and that the search was not excessively intrusive.

It is interesting to note in the opinion how the Court is struggling to determine the limitations on what society views as a reasonable expectation of privacy in the area of stored electronic communications during this era of rapidly developing personal communication devices. In deciding this case, the Justices simply assumed arguendo that the employee in question had a legitimate expectation of privacy in the communications data generated and stored in his work-issued texting device. Given the wide-ranging diversity of opinion in society on the issue of a legitimate expectation of privacy for this type of stored data and the ever advancing new technologies related to storage of electronic communications, the Court left for another day a comprehensive discussion on what constitutes a reasonable expectation of privacy in this area of 4th Amendment jurisprudence.

Download a copy of the case, Ontario v. Quon.

Category: Muni-Mail Archive

Muni-mail – SCOTUS: No Mandatory Deportation for 2 Simple Drug Possessions

[06/14/10 – 12:24 pm] Under federal immigration law, a immigrant who is lawfully in the United States and who has been convicted of an aggravated felony is subject to deportation with no possibility of waiver or relief in the courts. Further, under federal law, two separate simple possession of drugs offenses can constitute an aggravated felony. However, this morning, the United States Supreme Court ruled that for deportation purposes, a second or subsequent simple drug possession conviction under state law is not an aggravated felony in those cases where the subsequent conviction is not based upon evidence of a prior conviction. As a result, a person who has been convicted in state court of simple possessory offenses may seek a cancellation of deportation or a waiver of being barred from re-entry into the United States.

Download a copy of the case, Carachuri-Rosendo v. Holder.

Category: Muni-Mail Archive

Muni-mail – “POOR People of NJ – PAY OFF YOUR CHARGES NOW!” : MVC

MVC Calls on Customers to Wipe Out Surcharge Debt
Incentives to help get people back on the road/reduce monthly payment burden

(TRENTON) – Noting the negative impact that debt and the inability to legally drive can have on a person’s life, New Jersey Motor Vehicle Commission (MVC) Acting Chief Administrator Raymond P. Martinez today announced the creation of the MVC Surcharge Payment Incentive Program. The program, which will run June 15 through July 30 2010, is designed to help those MVC customers in judgment address their motor vehicle surcharge responsibilities.

“Surcharge debt has become a vicious cycle for too many drivers,” said Martinez. “If you don’t pay off your debt, you can’t get your license back. Without the license, you can’t legally drive to work to make the money necessary to pay off the debt. Our goal is to give these particular customers a chance to either wipe the slate clean or arrange more affordable payments that will allow the restoration of their driving privileges.”

The seven-week incentive program, authorized by legislation enacted earlier this year, will offer many MVC customers, who have outstanding surcharge balances, an opportunity to clear all their debt or make payment arrangements that will help get them back behind the wheel. Eligible drivers include those who have been placed in judgment for failing to make surcharge payments or those in judgment who arranged a payment plan but are finding it difficult to make payments.

Approximately 273,000 drivers, who owe a combined $657 million, are eligible for the incentive program. The average surcharge debt owed by a driver is $2,400. Examples of the incentives to be offered are extended, 48-month payment plans, and interest waivers for drivers paying off principal and cost. Most eligible drivers will be directly notified by mail of this opportunity to address their surcharge issues. Drivers need to contact the specific collection firm noted on the personalized letter they received to discuss available options.

“Surcharge situations vary from driver to driver, but an individual who owes $2,100 can have their interest waived, pay in full and save themselves more than $500,” added Martinez. “With extended payment plans, some drivers could lower their monthly payment by as much as $200. The MVC understands the financial burdens of its customers and will work with them on eliminating their debt.”

Drivers seeking more information about the MVC Surcharge Incentive Program may contact the specific collection firm noted on their Surcharge Payment Incentive Program letter or visit www.njmvc.gov/surcharge. Please note that drivers with outstanding surcharges related to Driving Under the Influence (DUI) convictions are not eligible for the incentive program.

Category: Muni-Mail Archive

Muni-Mail – No Standing to Suppress Abandoned Property – State v. Carvajal

[06/02/10 – 10:10 pm] This morning, the New Jersey Supreme Court re-affirmed a previous ruling to the effect that a person who abandons property will have no standing to bring a motion to suppress criminal evidence that is subsequently seized by the police from the property. In this morning’s case, captioned State v. Carvajal, the Court ruled once the State establishes by a preponderance of the evidence that the property in question has been abandoned by the defendant, the defendant no longer has standing to proceed with a motion to suppress evidence.

This limited exception to the so-called “automatic standing” rule for motions to suppress evidence in New Jersey was established two years ago in an opinion written by Justice Albin captioned State v. Johnson, 193 N.J. 528, 548-549 (2008). Today’s decision, also written by Justice Albin, provides the necessary procedural framework for challenges to standing based upon the abandonment exception.

Download a copy of State v. Carvajal.

Category: Muni-Mail Archive

SCOTUS: “Miranda means ‘KEEP YOUR MOUTH SHUT!” – Berghuis v. Thompkins

[06/01/10 – 8:23 pm] This morning, the United States Supreme Court ruled that a suspect’s act of merely remaining silent for a prolonged period of time during a police custodial interrogation does not necessarily constitute an invocation of the right to remain silent under Miranda. Rather, a suspect’s right both to counsel and to remain silent under Miranda must be communicated to the interviewing police by the suspect unambiguously. In a case captioned Berghuis v. Thompkins, the Justices noted that the defendant had been arrested in connection with a homicide and was questioned by the police. During the interrogation, at no point did the suspect say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered “yes” when asked if he prayed to God to forgive him for the shooting. That statement was used by the prosecution at trial as an admission. Writing for the Court, Justice Kennedy noted that the respondent did not say to the interviewing detectives that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning.

Download a copy of Berghuis v. Thompkins.

Category: Muni-Mail Archive

Muni-mail – Rear-seat Adults Must Now Buckle Up! NJSA 39:3-76.2(f)

[5/31/10 – 10:30 pm] The Legisture has amended the provisions of New Jersey’s seatbelt law under NJSA 39:3-76-2(f) and (g) to require that all occupants of a passenger automobile, including adults who are seated in the rear utilize a seatbelt when the vehicle is being operated. Under the prior law, adults seated in the rear of a passenger automobile were not required to utilize a seatbelt.

As far as enforcement is concerned, a companion new statute, NJSA 39:3-76.2(n) catagorizes seatbelt violations as secondary offenses, meaning that police must detain the vehicle for a different violation before issuing a summons and complaint for this offense.

The text of these new and amended statutes are as follows:

<< NJ ST 39:3-76.2f >>

2. a. Except as provided in P.L.1983, c. 128 (C.39:3-76.2a et al.) for children under eight years of age and weighing less than 80 pounds, all passengers under eight years of age and weighing more than 80 pounds, and all passengers who are at least eight years of age but less than 18 years of age, and each driver and front seat passenger under eight years of age and weighing more than 80 pounds, and all passengers who are at least eight years of age but less than 18 years of age, and each driver and front seat passenger of a passenger automobile operated on a street or highway in this State shall wear a properly adjusted and fastened safety seat belt system as defined by Federal Motor Vehicle Safety Standard Number 209.
b. The driver of a passenger automobile shall secure or cause to be secured in a properly adjusted and fastened safety seat belt system, as defined by Federal Motor Vehicle Safety Standard Number 209, any passenger who is at least eight years of age but less than 18 years of age.
c. All rear seat passengers 18 years of age or older of a passenger automobile operated on a street or highway in this State shall wear a properly adjusted and fastened safety seat belt system as defined by Federal Motor Vehicle Safety Standard Number 209.
For the purposes of the “Passenger Automobile Seat Belt Usage Act,” the term “passenger automobile” shall include vans, pick-up trucks, and utility vehicles.
2. [FN2] Section 3 of P.L.1984, c. 179 (C.39:3-76.2g) is amended to read as follows:

<< NJ ST 39:3-76.2g >>

3. This act shall not apply to a driver or front seat passenger of:
a. A passenger automobile manufactured before July 1, 1966;
b. A passenger automobile in which the driver or passenger possesses a written verification from a licensed physician that the driver or passenger is unable to wear a safety seat belt system for physical or medical reasons;
c. A passenger automobile which is not required to be equipped with a safety seat belt system under federal law;
d. A passenger automobile operated by a rural letter carrier of the United States Postal Service while performing the duties of a rural letter carrier; or
e. A passenger automobile which was originally constructed with fewer safety seat belt systems than are necessary to allow the passenger to be buckled.

<< NJ ST 39:3-76.2n >>

3. [FN3] (New section) Enforcement of the provisions of subsection c. of section 2 of P.L.1984, c. 179 (C.39:3-76.2f) by State or local law enforcement officials shall be accomplished by treating a violation thereof only as a secondary offense when a driver of a passenger automobile has been detained for some other suspected violation of Title 39 of the Revised Statutes or other law. Each rear seat passenger 18 years of age or older of a passenger automobile shall be responsible for any fine imposed pursuant to section 6 of P.L.1984, c. 179 (C.39:3-76.2j) for failure to wear a seat belt pursuant to subsection c. of section 2 of P.L.1984, c. 179 (C.39:3-76.2f).
4. This act shall take effect immediately.

Category: Muni-Mail Archive