Monthly Archives: February 2009

Exigency No Longer Needed for Telephonic Search Warrant

In what will surely be regarded as a landmark decision, the New Jersey Supreme Court by a 4-3 vote announced this morning in State v. Pena-Flores, that it will henceforth drop the requirement for a finding of exigency as a condition for the issuance of a telephonic search warrant. In the future, the Court will not make any distinction between a telephonic search warrant and one that has been granted in the traditional manner through a personal appearance before a neutral and detached judge. The Part III Rules of Court will be amended accordingly.

The Pena-Flores case also provides police and prosecutors with detailed guidance on when exigent circumstances exist during the course of a motor vehicle stop sufficient to support a warrantless search of a motor vehicle under the automobile exception. According to the Court, the purpose behind this exception to the warrant requirement is based upon notions of law enforcement safety and preservation of evidence. Under New Jersey law, this exception must be supported by both probable cause and exigent circumstances. Among the factors to be considered by the courts in judging the reasonableness of police conduct on issues of exigency are the following:

The time of day;
The location of the stop;
The nature of the neighborhood;
The unfolding of the events establishing probable cause;
The ratio of officers to suspects;
The existence of confederates who know the car’s location and could remove it or its contents;
Whether the arrest was observed by passers by who could tamper with the car or evidence;
Whether it would be safe to leave the car unguarded and, if not;
Whether the delay that would be caused by obtaining a warrant would place the officers or evidence at risk.

In short, the Court held that exigent circumstances are present when officers do not have sufficient time to obtain any form of warrant.

Finally, please note that in this case the Court authorized a motor vehicle search for documents by the police in a situation where the driver cannot provide or locate legally correct documents for the vehicle. This practice was previously disapproved by the Court in State v. Lark, 163 N.J. 294 (2000), although the majority opinion does not cite to Lark in the opinion.

Down load a copy of State v. Pena-Flores.

Category: Muni-Mail Archive

Drug OD Revealed that Mun. Ct. Judge Was Intimate with his Bailiff – ACJC

The Advisory Committee on Judicial Conduct (ACJC) released a new complaint this afternoon that charged a municipal court judge in the Jersey City Municipal Court had intimate relations with a subordinate member of his courtroom staff. According to the ACJC, the investigation began when the subordinate, court bailiff Ann Kirolos, took an overdose of medication as a result of severe depression she was suffering after having broken-up with the respondent judge. According to the ACJC, the respondent judge subsequently admitted the misconduct to his assignment judge and acknowledged that during the time of their affair, Ms. Kirolos worked as a bailiff in his court room, under his supervision.

The ACJC complaint alleges that by engaging in an improper, intimate relationship with a member of his subordinate staff, the judge violated several Canons of Judicial conduct as well as Rule 2:15-9(a)(6) (engaging in conduct prejudicial to the administration of justice that brings the judicial office into disrepute.)

The respondent judge will now have an opportunity to file an answer to the complaint. He is also entitled a plenary hearing before the ACJC to contest the allegations in the complaint. All final discipline in matters of judicial misconduct is imposed by the Supreme Court.

Download a copy of the ACJC complaint in In re Wilson J. Campbell.

Category: Muni-Mail Archive

New Rules for Motion to Withdraw a Guilty Plea – State v. Slater

This morning’s Supreme Court decision in State v. Slater provided the Justices with the opportunity to develop a new balancing test that judges in this state should now use when deciding whether to permit a defendant to withdraw a previously entered plea of guilty.

Apart from the standards set forth in the current Rules of Court (Rule 3:9-2 and Rule 7:6-2(b)), judges will now be required to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. Trial courts should consider and balance all of the factors in assessing a motion for withdrawal of a plea. No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief.

It should be noted that although the trial court in Slater rejected the defendant’s motion to vacate his plea as simply a “change of mind”, the Supreme Court found that he had met the burden as established in the new balancing test and authorized the plea to be vacated.

Download a copy of State v. Slater.

Category: Muni-Mail Archive

Totality of Circumstances controls Miranda Waiver Claims – State v. Nyhammer

This morning’s New Jersey Supreme Court opinion in State v. Nyhammer is a critically important decision on two independent legal issues. First, the Court declined to adopt a per se rule for Miranda warnings that would require that defendants being questioned by police be re-advised of their constitutional rights when the focus of the police interview changes from investigatory to accusatory. Instead, an initial Miranda warning is satisfactory and a later challenge to the voluntariness of the defendant’s Miranda waiver will be based upon the traditional “totality of the circumstances” test.

In this case, the Justices also ruled that in order for a defendant to successfully claim a confrontation clause violation based upon the limited testimony of a reluctant, unresponsive witness, the defendant must attempt to conduct a cross-examination of the witness by asking questions directly related to critical issues in the case. Failure to do so, as occurred in this case, constitutes a waiver.

Download a copy of State v. Nyhammer.

Category: Muni-Mail Archive