Monthly Archives: August 2010

Muni-mail – When Cops Tow Car, Exigency Disappears – State v. Minitee

[08/16/10 – 9:00 pm] This morning, the Appellate Division ruled that when police officials take a motor vehicle into custody as evidence and hold it in their control, the exigent circumstances that initially justify the vehicle’s seizure do not also justify a warrantless search. Rather, in the absence of some other exception to the warrant requirement (such as consent), the police should seek a search warrant from the Superior Court. The case standing for this proposition, captioned State v. Minitee, involved a police seizure of a vehicle used in the commission of a crime. The police impounded the vehicle and removed back to the police station where it was searched without the authority of a warrant. Significant criminal evidence was located within the vehicle. However, the Appellate Division ruled that once the impounded vehicle was safely in police custody, any exigency tending to make it impractical to obtain a search warrant had vanished. Simply put, following the impoundment, the police should have sought a search warrant.

Download a copy of State v. Minitee.

Category: Muni-Mail Archive

Muni-Mail – NO HOOKAHS ALLOWED IN NJ !!

[08/05/10 – 10:29] This morning, the Appellate Division ruled that the State’s Smoke-Free Air Act under N.J.S.A. 26:3D-55 et seq. can be used to ban the use of hookahs in public businesses, even when the device is used to smoke substances that are tobacco-free. In the case, captioned State v. Badr, a local municipality sought to enforce the statute against the owner of a coffee shop where the customers partook of hookah smoke made up of crushed fruit and incense. Following a finding of guilt in both the municipal court and the Law Division, the defendant appealed, primarily based upon constitutional issues. The Appellate Division held that the statute is constitutional and prohibits the smoking of any matter that can be smoked in a hookah.

Download a copy of State v. Badr.

Category: Muni-Mail Archive

Muni-mail – Cop’s off-duty rape does not require job forfeiture – State v. Hupka

[08-03-10 – 10:19] This morning, the New Jersey Supreme Court ruled that a police officer who, while off duty, committed the crime of criminal sexual contact (non-consent, sleeping victim who became pregnant as a result) is not subject to mandatory loss of his public employment. Typically, forfeiture is required when a public employee is convicted of either an offense involving dishonesty or one that touches on his office. For touching on the office cases, the Justices reasoned that forfeiture is not required unless the underlying offense bears some direct relationship to the office involved. Here, this did not apply since the officer was off-duty at the time of the crime and the offense had nothing to do with his job as a police officer.

The Court also mandated that in the future, prosecutors (this would include both municipal and county) should include discussions of forfeiture and disqualification in plea negotiations with public employees. When a defendant is charged with a crime that might be regarded as involving or touching his or her public position, the State should require an allocution that either establishes the connection between the crime and the position to enable the court to sustain a subsequent forfeiture and disqualification order, or, alternatively, should negotiate a voluntary disqualification from a future position.

Download a copy of State v. Hupka.

Category: Muni-Mail Archive

Muni-mail – Supremes Reverse Rule Requiring Juvie Lawyers

[7-30-10 – 11:03 am] The New Jersey Supreme Court has reserved a rule of criminal procedure that was order by the Appellate Division last year. In State in the Interest of A.S., the Justices held that it is not necessary to have an attorney available in every case where a parent called to be present during the criminal interrogation of a juvenile suspect has a conflict. Rather, the Court noted that in cases of a true conflict, another adult family member may adequately serve the purpose of aiding the juvenile suspect during the interview.

Download a copy of State in the Interest of A.S.

Category: Muni-Mail Archive