Monthly Archives: March 2006

Tuning Forks Must be Struck on a Non-Metallic Object – State v. Cutler (UNP)

The UNPUBLISHED Appellate Division decision in State v. Cutler, released earlier today, provides an excellent review of the technical, foundational proofs required to prove a speeding case. Of greater importance, the Court ruled that tuning forks used to check the radar unit must be struck upon a non-metallic surface.

Download a copy of the UNPUBLISHED Appellate Division opinion in State v. Cutler.

Category: Muni-Mail Archive

Municipal Fee for Copies Was Unreasonable – Libertarian Party v. Murphy

Allowable fees for discovery in municipal court cases continues to be a controversial and unsettled area of the law. The fees charged for municipal court discovery around the state vary widely among jurisdictions. Moreover, there is little law on the subject. The schedule of fees for copies of motor vehicle reports is set forth under NJSA 39:4-131 and generally conforms to the fee schedule in the Open Public Records Act (OPRA) when the person seeking a copy of the records appears in person. (75 cents for first 10 pages; 50 cents for the next 10 pages and 25 cents per all other pages. See NJSA 47:1A-5(b). See also NJSA 39:4-131.1) If copies are requested other than in person, an additional fee of up to $5.00 may be added for the first 3 pages and $1.00 per page thereafter to cover the administrative costs of the report.

The law is less clear on how to bill for information that is recorded on media other than paper, such as videotape, DVD, computer diskettes and the like.

Today, in Libertarian Party of Central New Jersey v. Murphy, the Appellate Division ruled that a fee of $55 set by ordinance for the copying of the minutes of the township council on a computer diskette was unreasonable and had obviously been set by the municipality to discourage requests for this information. The Court further held that the fee for copying records on such media must be limited to the actual costs of duplication as required under OPRA.

The publication of this case may provide municipal prosecutors, defense attorneys and police agencies with a measure of legal guidance on how much to charge for various types of discovery, especially discovery stored on electronic media.

Download a copy of Libertarian Party v. Murphy.

Category: Muni-Mail Archive

Objection by Occupant Voids Search Consent by Co-Occupant – Ga. v. Randolph

Today’s decision by the United States Supreme Court in Georgia v. Randolph involves a factual situation where the police received consent to search for drugs in a residence from one of the occupants (wife) and thereafter conducted the search over the strenuous objection of the other occupant (husband) who was present on the scene. A majority of the Justices ruled that such a search, undertaken over the objection of an occupant who is present and who does not consent to the search is unreasonable under the 4th Amendment.

Download a copy of Georgia v. Randolph.

Category: Muni-Mail Archive

“Anticipatory ” Search Warrants Are Valid – United States v. Grubbs

An anticipatory search warrant is used by law enforcement agents from time to time. This type of warrant will authorize a search based upon the happening of a future event or a condition other than the mere passage of time. Today, for the first time, the United States Supreme Court ruled that anticipatory search warrants do not violate the 4th Amendment.

In United States v. Grubbs, federal agents expected that the defendant was going to receive a video tape via the mail that contained child pornography. The agents sought an anticipatory search warrant from a magistrate for the defendant’s home. The under the terms of the search warrant, authority to search and seize was to be triggered by the delivery of the purported pornographic tape the the defendant’s home. Agents witnessed the delivery of the tape to the defendant’s residence. Subsequently, when the warrant was served, the tape was recovered and the defendant was arrested.

The Supreme Court ruled that an anticipatory search warrant must be based upon evidence that there is probable cause to believe that evidence of a crime will be present at the scene of the search at the time in the future when the warrant is served. Beyond this, it is not necessary that the search warrant describe with particularity the triggering conditions for its execution.. The particularity requirement in the 4th Amendment only applies to the places to be searched and persons or things to be seized.

Download a copy of United States v. Grubbs.

Category: Muni-Mail Archive

D/P Marijuana Posession did not justify Strip Search – State v. Harris

In State v. Harris, released today by the Appellate Division, the defendant was arrested on the street for a disorderly persons level possession of marijuana and possession of a weapon (knife). The events leading to the arrest involved a street detention of the defendant and a companion during which time the police suspected that the defendant was hiding evidence in his mouth. The defendant spit out the hidden object, which turned out to be marijuana. A search incident to the arrest on the street yielded the knife.

Once back at the police station, the police suspected that the defendant might have additional contraband hidden on his person. The arresting officer sought and received command authority to conduct a strip search. During the course of the search, the police noticed a plastic bag secreted on the defendant’s body. The police sought to remove the bag against the defendant’s violent resistance. The bag contained distribution levels of CDS.

The Appellate Division sustained the search on the street that yielded the marijuana and knife but ordered the CDS recovered from the strip search suppressed. The Court noted that a person who has been arrested for a disorderly persons offense may only be subject to a strip search under certain limited conditions established by statute. (NJSA 2A:161A-1). To justify a strip search in this defendant’s case, the police would have to demonstrate probable cause to believe that the defendant possessed a weapon, CDS or evidence of a crime AND that a recognized exception to the warrant requirement existed. The Court found that the police did not have probable cause to believe this defendant possessed CDS hidden on his body. The panel reasoned that the mere possession of a small amount of CDS (marijuana) is not an indication generally of other hidden drugs on the body of a person. The Court also rejected the idea that the fact that the defendant had hidden drugs in his mouth would give rise to probable cause that he had hidden drugs on or in other parts of his body.

Download a copy of State v. Harris.

Category: Muni-Mail Archive

Mandatory DNA Justified as “Special Needs” Search – A.A. v. Attorney General

Under New Jersey law, people who have been convicted of a crime or who have been adjudged delinquent on the basis of conduct that would constitute a crime were it committed by an adult, are required to submit a DNA sample for law enforcement purposes. In A.A. v. Attorney General, the Appellate Division ruled that the taking and analysis of these DNA samples constitute a search within the meaning of the 4th Amendment. The Court went on to hold that such searches are reasonable under the “special needs” exception to the warrant requirement.

The Court also ruled that there is no requirement that DNA samples be subject to expungement, as are other criminal records, after a defendant has completed his sentence.

Download a copy of A.A. v. Attorney General.

Category: Muni-Mail Archive

Supreme Court Orders Halt to further Alcotest Expansion

In a letter addressed to the Hon. Michael Patrick King, PJAD (ret.), the designated special master in the State v. Chun Alcotest case, the New Jersey Supreme Court today order that no further expansion of the use of the Alcotest 7110 be undertaken in the State without the prior authorization of the Supreme Court. Writing for the Court, Clerk Stephen Townsend also included an order that provides that the experts in this case will be selected by Judge King and paid for by the Administrative Office of the Courts.

The Court’s order, as embodied in the letter, effectively halts the continuing roll-out of the Alcotest 7110 around the State by the Office of the Attorney General until a final determination as to the instrument’s scientific reliability has been adjudicated.

Download a copy of the letter and order.

Category: Muni-Mail Archive

Off-Duty Officer Must Forfeit Job Following Conviction – State v. Rodriguez

In State v. Rodriguez, an off-duty police officer was involved in a motor vehicle accident that resulted in the death of a pedestrian. Following a jury trial, he was convicted of third degree leaving the scene of a motor vehicle accident as well as the traffic offenses of leaving the scene and reckless driving.

As required by New Jersey law, the trial judge order a forfeiture of public office based upon the conviction for a third degree crime. (NJSA 2C:51-2(a)(1)). However, the judge also entered an order forever barring the defendant from holding any position in any political subdivision of the State of New Jersey. Such a forfeiture is required for offenses “touching upon the office” of a defendant. (NJSA 2C:51-2(d)).

In two previously published cases involving a forfeiture related to off-duty offenses committed by police officers, each of the defendants had used a firearm. This defendant’s case only involved a criminal charge of leaving the scene of an accident.

The Appellate Division affirmed the forfeiture and held that since it is the duty of a police officer to report to accident scenes and attend to injured parties there, the failure of a police officer to do so, even while off-duty, is sufficiently related to his duties that it “touches upon” his office.

Download a copy of State vs. Rodriguez.

Category: Muni-Mail Archive

Indigents Entitled to Atty in Past-Due Child Support Cases – Pasqua v. Council

Today’s landmark New Jersey Supreme Court decision in Pasqua v. Council extends the right of counsel to indigent parents who are brought before the Family Part of the Superior Court on child support enforcement cases under Rule 1:10-3. According to the Justices’ ruling, all parents who are brought before the Family Part on enforcement matters must be advised of the right to an attorney and, if indigent, the right to appointed counsel. Moreover, parents who are arrested on warrants for child support may no longer languish indefinitely in jail, but must be brought before a judge within 72 hours.

In terms of the practical issues associated with providing lawyers to indigents in these types of proceedings, the Court declined to employ the members of the bar on an involuntary basis. Rather, the Justices called upon the Legislature to take the necessary steps to fund such a program.

Download a copy of Pasqua v. Council.

Category: Muni-Mail Archive

Advisement of “Independent Test” not an Element of DWI – State v. Howard

New Jersey law provides that a person arrested for drunk driving who is required to submit a breath sample, be informed by the police that he or she has the right to seek an independent testing of breath, blood or urine by a physician or other person. In today’s Appellate Division decision, State v. Howard, the Court ruled that the State is not required to affirmatively prove that the defendant was advised of the right to independent testing in order to sustain a conviction for DWI under NJSA 39:4-50(a). Rather, a challenge based upon a failure to provide this statutory advisement must be raised in a motion to suppress the breath test results. It is only when such a pre-trial challenge is raised that the State must prove that the proper statutory advisement was given to the defendant.

Download a copy of State v. Howard.

Category: Muni-Mail Archive

Third Offender for DWI Must Serve 180 Jail Term – State v. Luthe

Today’s Appellate Division decision in State v. Luthe makes it clear that the Legislature intended that 3rd and subsequent offenders convicted of drunk driving must serve a 180 jail term, subject to any credits, not to exceed 90 days, allowed by the sentencing judge for time spent in an IDRC-approved residential in-patient facility. Work release is not permitted for such defendants.

Download a copy of State v. Luthe.

Category: Muni-Mail Archive

MVC Affordability & Fairness Task Force Report Released

( TRENTON ) – The Motor Vehicles Affordability and Fairness Task Force has forwarded its final report to the Governor and to members of the Legislature, as mandated by state law.

The Task Force formed in February 2005, and had 12 months to meet its mandate.

Creation of the Task Force was outlined in the law that created the NJ Motor Vehicle Commission (MVC), the Motor Vehicle Security and Customer Service Act of 2003. The 17-member Task Force investigated, analyzed and discussed the social impact of driver license and registration suspensions, as well as: issues of motor vehicle-related safety, insurance and finance. Public hearings were held in Camden, Newark and New Brunswick. E-mail comments were accepted from the public through MVC’s Web site over the course of the past 12 months.

Members of the Task Force included a diverse cross-section of stakeholders, including members of the State Legislature, New Jersey State government, advocacy groups and others, including locally elected officials, representatives from AAA and the Insurance Council of New Jersey.

Download a copy of the Task Force Report.

Category: Muni-Mail Archive