Monthly Archives: January 2009

Alcotest Operator must observe for 20 minutes – State v. Nucifora

While we are all waiting for a clarifying, published decision from the Appellate Division on the 20-minute observation period discussed by the Supreme Court in State v. Chun, 194 N.J. 54 (2008), the Law Division judges have been considering the issue in the context of municipal appeals. One recent such appeal, captioned State v. Nucifora was decided in Camden County back on December 30, 2008. This UNPUBLISHED letter opinion stands for the proposition that it is the operator of the Alcotest who must personally observe the test subject for 20-minutes before administering the test.

Download a copy of the UNPUBLISHED decision in State v. Nucifora.

Category: Muni-Mail Archive

Seizure During MV Stop Continues until Cops Say, “Get Out of Here!” – Arizona v. Johnson

Today’s United States Supreme Court holding in Arizona v. Johnson clarifies the law related to the seizure of persons in a motor vehicle during a traffic stop. In the Johnson case, the investigating police officer developed a reasonable suspicion that the petitioner was armed. In order to further her investigation, she directed him to leave the vehicle and spoke to him to gather intelligence related to gang activity. A pat-down frisk of his person led to the recovery of an illegal firearm.

The petitioner’s position was that the seizure of his person during the traffic stop ended when he was asked to exit the vehicle to speak with the officer. According to the petitioner, his conversation with the officer was based upon a voluntary field inquiry, an encounter that would not normally justify a pat-down search for weapons.

In rejecting this theory, the Supreme Court reasoned as follows:

A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.. An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.

In sum, a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. Nothing occurred in this case that would have conveyed to the petitioner that, prior to the frisk, the traffic stop had ended or that he was otherwise free “to depart without police permission.” The investigating officer surely was not constitutionally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.

Download a copy of Arizona v. Johnson

Category: Muni-Mail Archive

Constructive Possession Opinion Prejudicial – State v. Reeds

This morning’s N.J. Supreme Court opinion in State v. Reeds stands for the proposition that expert opinion testimony related to constructive possession of controlled dangerous substances run the risk of unduly influencing the jury on the issue of guilt.

Download a copy of State v. Reeds.

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Saucier Doctrine May Be Relaxed – Pearson v. Callahan


certiorari to the united states court of appeals for the tenth circuit
No. 07–751. Argued October 14, 2008—Decided January 21, 2009

After the Utah Court of Appeals vacated respondent’s conviction for possession and distribution of drugs, which he sold to an undercover informant he had voluntarily admitted into his house, he brought this 42 U. S. C. §1983 damages action in federal court, alleging that petitioners, the officers who supervised and conducted the warrantless search of the premises that led to his arrest after the sale, had violated the Fourth Amendment . The District Court granted summary judgment in favor of the officers. Noting that other courts had adopted the “consent-once-removed” doctrine—which permits a warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view—the court concluded that the officers were entitled to qualified immunity because they could reasonably have believed that the doctrine authorized their conduct. Following the procedure mandated in Saucier v. Katz, 533 U. S. 194 , the Tenth Circuit held that petitioners were not entitled to qualified immunity. The court disapproved broadening the consent-once-removed doctrine to situations in which the person granted initial consent was not an undercover officer, but merely an informant. It further held that the Fourth Amendment right to be free in one’s home from unreasonable searches and arrests was clearly established at the time of respondent’s arrest, and determined that, under this Court’s clearly established precedents, warrantless entries into a home are per se unreasonable unless they satisfy one of the two established exceptions for consent and exigent circumstances. The court concluded that petitioners could not reasonably have believed that their conduct was lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry of an informant could not reasonably be interpreted to extend to them. In granting certiorari, this Court directed the parties to address whether Saucier should be overruled in light of widespread criticism directed at it.


1. The Saucier procedure should not be regarded as an inflexible requirement. Pp. 5–19.

(a) Saucier mandated, see 533 U. S., at 194, a two-step sequence for resolving government officials’ qualified immunity claims: A court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was “clearly established” at the time of the defendant’s alleged misconduct, id., at 201. Qualified immunity applies unless the official’s conduct violated such a right. Anderson v. Creighton, 483 U. S. 635 . Pp. 5–7.

(b) Stare decisis does not prevent this Court from determining whether the Saucier procedure should be modified or abandoned. Revisiting precedent is particularly appropriate where, as here, a departure would not upset settled expectations, see, e.g., United States v. Gaudin, 515 U. S. 506 ; the precedent consists of a rule that is judge-made and adopted to improve court operations, not a statute promulgated by Congress, see, e.g., State Oil Co. v. Khan, 522 U. S. 3 ; and the precedent has “been questioned by Members of th[is] Court in later decisions, and [has] defied consistent application by the lower courts,” Payne v. Tennessee, 501 U. S. 808 . Respondent’s argument that Saucier should not be reconsidered unless the Court concludes that it was “badly reasoned” or that its rule has proved “unworkable,” see Payne, supra, at 827, is rejected. Those standards are out of place in the present context, where a considerable body of new experience supports a determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained. Pp. 7–10.

(c) Reconsideration of the Saucier procedure demonstrates that, while the sequence set forth therein is often appropriate, it should no longer be regarded as mandatory in all cases. Pp. 10–19.

(i) The Court continues to recognize that the Saucier protocol is often beneficial. In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. And Saucier was correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable for questions that do not frequently arise in cases in which a qualified immunity defense is unavailable. See 533 U. S., at 194. Pp. 10–11.

(ii) Nevertheless, experience in this Court and the lower federal courts has pointed out the rigid Saucier procedure’s shortcomings. For example, it may result in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the case’s outcome, and waste the parties’ resources by forcing them to assume the costs of litigating constitutional questions and endure delays attributable to resolving those questions when the suit otherwise could be disposed of more readily. Moreover, although the procedure’s first prong is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development, as where, e.g., a court of appeals decision is issued in an opinion marked as not precedential. Further, when qualified immunity is asserted at the pleading stage, the answer to whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. And the first step may create a risk of bad decision making, as where the briefing of constitutional questions is woefully inadequate. Application of the Saucier rule also may make it hard for affected parties to obtain appellate review of constitutional decisions having a serious prospective effect on their operations. For example, where a court holds that a defendant has committed a constitutional violation, but then holds that the violation was not clearly established, the defendant, as the winning party, may have his right to appeal the adverse constitutional holding challenged. Because rigid adherence to Saucier departs from the general rule of constitutional avoidance, cf., e.g., Scott v. Harris, 550 U. S. 372 , the Court may appropriately decline to mandate the order of decision that the lower courts must follow, see, e.g., Strickland v. Washington, 466 U. S. 668 . This flexibility properly reflects the Court’s respect for the lower federal courts. Because the two-step Saucier procedure is often, but not always, advantageous, those judges are in the best position to determine the order of decision making that will best facilitate the fair and efficient disposition of each case. Pp. 11–17.

(iii) Misgivings concerning today’s decision are unwarranted. It does not prevent the lower courts from following Saucier; it simply recognizes that they should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, it will not retard the development of constitutional law, result in a proliferation of damages claims against local governments, or spawn new litigation over the standards for deciding whether to reach the particular case’s merits. Pp. 17–19.

2. Petitioners are entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional. When the entry occurred, the consent-once-removed doctrine had been accepted by two State Supreme Courts and three Federal Courts of Appeals, and not one of the latter had issued a contrary decision. Petitioners were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on consent-once-removed entries. See Wilson v. Layne, 526 U. S. 603 . Pp. 19–20.

494 F. 3d 891, reversed.

Alito, J., delivered the opinion for a unanimous Court.

Category: Muni-Mail Archive

Arrest Based on Invalid Warrant Did Not Require Suppression of Evidence – Herring v. United States

In yesterday’s United States Supreme Court opinion in Herring v. United States, the Court ruled that when police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply. The facts of the case were as follows:

Police officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database. Herring was indicted on federal gun and drug possession charges and moved to suppress the evidence on the ground that his initial arrest had been illegal. Assuming that there was a Fourth Amendment violation, the District Court concluded that the exclusionary rule did not apply and denied the motion to suppress. The Eleventh Circuit affirmed, finding that the arresting officers were innocent of any wrongdoing, and that Dale County’s failure to update the records was merely negligent. The court therefore concluded that the benefit of suppression would be marginal or nonexistent and that the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897.

(a) The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213 . The rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. Leon, 468 U. S., at 908–909. For example, it does not apply if police acted “in objectively reasonable reliance” on an invalid warrant. Id., at 922. In applying Leon’s good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding, Arizona v. Evans, 514 U. S. 1 the Court left unresolved the issue confronted here: whether evidence should be suppressed if the police committed the error.

(b) The extent to which the exclusionary rule is justified by its deterrent effect varies with the degree of law enforcement culpability. Indeed, the abuses that gave rise to the rule featured intentional conduct that was patently unconstitutional. An error arising from nonrecurring and attenuated negligence is far removed from the core concerns that led to the rule’s adoption.

(c) To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The pertinent analysis is objective, not an inquiry into the arresting officers’ subjective awareness. (d) The conduct here was not so objectively culpable as to require exclusion. The marginal benefits that might follow from suppressing evidence obtained in these circumstances cannot justify the substantial costs of exclusion.

Download a copy of Herring v. United States.

Category: Muni-Mail Archive

ACJC: Judge Abused Contempt Powers on Prisoner via Video

The Advisory Committee on Judicial Conduct (ACJC) has released to the public a new complaint charging a judge of the municipal court with various violation of the Code of Judicial Conduct stemming from an incident where the judge held a prisoner in contempt. As you will note from the colloquy, the judge became angry with the defendant and imposed an escalating series of jail terms for what the court viewed as a direct contempt. According to the ACJC, the judge ignored all of the required procedural steps and acted in an intemperate manner.

The accused judge will now have an opportunity to file an answer to the complaint and have the matter tried before the full ACJC. All final judicial discipline in New Jersey must come from the Supreme Court.

Download copy of the ACJC complaint in In re Toth is attached to this muni-mail.

Category: Muni-Mail Archive

Municipal Court May Not Assess Penalty to Fire Bugs – State v. O’Connor

The Committee on Opinions has approved the publication of the Municipal Court Judge’s decision in State v. O’Connor. In this matter, the defendants were charged in municipal court with violating the provisions of the New Jersey Administrative Code related to starting or maintaining open fires in a forest without a permit. The Law Division ruled that the municipal court is without jurisdiction to decide these types of cases and asses penalties. Instead, the court’s only function is to collect penalties of less than $5000 that have been administratively assessed by the Department of Environmental Protection.

Although not cited in the opinion, it is important to note that the lack of the municipal court jurisdiction to assess penalties was recently analyzed by the Appellate Division as well in State v. Tri-Way Kars, 402 N.J. Super. 215 (App. Div. 2008). In Kars, the Court held that the municipal court had no statutory, original jurisdiction to assess penalties under the Consumer Fraud Act, and could only collect and enforce penalties that had been previously assessed by the Attorney General as authorized under the Penalty Enforcement Act.

Download a copy of State v. O’Connor

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