Articles Posted in Constitutional Law

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The New Jersey Supreme Court decided State v. Rosario on June 6, 2017.  The case is important because, among other things, it discusses and distinguishes between the two most common types of police-citizen encounters, which are field inquiries and investigative detentions.

The facts are uncomplicated.  Police received an anonymous tip that defendant was selling illegal drugs from her home in a residential development, as well as from her vehicle.  One night, an officer patrolling the development noticed a moving silhouette in a parked car, which turned out to be the defendant’s vehicle, and decided to investigate further.  He pulled his patrol car up behind, and perpendicular to, the defendant’s car in such a way that the latter was blocked in.  The officer then activated his rooftop alley light which was aimed at the defendant’s car, but did not activate the siren or emergency lights.  The alley light enabled him to see a woman, who turned out to be the defendant, in the driver’s seat.  He observed her moving around in the driver’s seat and leaning toward the passenger’s seat.  He then exited his cruiser and approached the driver’s side door of the defendant’s car.  The window was partially open, and he asked the defendant for her license and other documents.  She produced the requested material, and the officer recognized her as the subject of the previously received anonymous tip and recalled that he had previously arrested her on narcotics-related charges.  He asked the defendant what she was doing, and she responded that she was smoking a cigarette, but the officer did not see a cigarette or butt.  He then asked her why she was moving around and turning toward the passenger seat when he pulled up, and she responded that she was putting on make-up and turned to put it away in her purse.  The officer then asked her how she could do that in the dark, but she did not respond.  He then asked if there was anything in the vehicle he should know about and, according to the officer, the defendant responded that she had the same thing he arrested her for previously.  According to the officer, the defendant then simply reached over to the passenger seat for an eyeglass case.  She opened it and the officer could see a white powdery substance.  The officer then arrested the defendant.  The trial court denied the defendant’s suppression motion, the Appellate Division affirmed, and the Supreme Court granted certification.

The Supreme Court began by recalling that field inquiries, and investigative detentions or “Terry” stops, are two of the three types of encounters that an individual can have with law enforcement.  A field inquiry involves a situation where an individual, under all of the surrounding circumstances, reasonably believes that they cannot simply walk away without answering the officer’s questions.  In an investigative detention, the person reasonably believes that their freedom of movement has been restricted.  Thus, an investigative detention, unlike a field inquiry, is a temporary seizure of the person, and must therefore be based upon the officer’s reasonable and particularized suspicion that the person has engaged, or is about to engage, in criminal activity.  The nature and quality of these encounters are measured from the perspective of the individual who is the subject of the stop. Continue reading ›

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50 years ago last week, the United States Supreme Court decided In re Gault, which guaranteed juvenile defendants many of the same due process rights held by adult criminal defendants.  For the first time, a Court held that juvenile matters are, in fact, adversarial criminal proceedings, and that juvenile criminal defendants therefore have a right to a defense attorney, procedural protections, and the opportunity to present their version of the underlying facts in an open hearing.

The facts of Gault are relatively simple.  Gault, age 15, was accused of making obscene telephone calls to a neighbor and, as a result, was sentenced to a six-year custodial term in a violent youth facility.  Significantly, an adult charged with a similar offense would have been fined $50.00, and sentenced to up to two month in jail.  Gault was also on probation at the time of this incident for being in the company of another teen who stole someone’s purse, although he was not accused of any wrongdoing in connection with that incident.  There was no trial in the case involving the telephone call.  In fact, there is no transcript or any record of what occurred during his hearings in juvenile court.  Gault purportedly confessed to making the calls with a friend.  His parents were not present in court, or even informed of the charges prior to his alleged confession.

The underlying issue in Gault was the extent to which states could dispense with due process rights in juvenile criminal matters in the interest of doing what was believed to be in the juvenile’s best interests.  However, courts around the country were grappling with this problem prior to Gault.  There are cases dating back to the 1800’s that raised the same question.  Further, just a few months before Gault, the New Jersey Supreme Court ruled that a juvenile may not be entitled to the full panoply of constitutional rights, but must still receive the basic elements of due process and fair treatment. Continue reading ›

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In State v. Robinson, decided on May 1, 2017, the New Jersey Supreme Court considered the extent to which the “protective sweep” doctrine, which is an exception to the warrant requirement, applies to a police search of the passenger compartment of a vehicle during a traffic stop.  In Robinson, an officer observed a vehicle driving in a manner he considered unsafe in an area known for drug activity.  He stopped the vehicle, which contained four occupants, and asked the driver for his license and registration.  The driver, Robinson, misidentified himself, told the officer that his license was suspended, but provided proof of insurance and a registration.  One of the other occupants, Henderson, misidentified himself as the Robinson.  The remaining occupants correctly identified themselves and produced ID cards.  The driver stated his friend owned the vehicle, but did not know his name.  The officer learned from his dispatcher that the driver had an outstanding warrant and was known to carry weapons, and that Henderson had a “caution for weapons”.  The officer called for backup, and other officers arrived.  Defendant and Henderson were removed from the vehicle, arrested, and handcuffed.  Both were searched, but neither had weapons.  Some of the officers now present watched the defendant and Henderson , both of whom stood on the roadside and could not return to the car.  The other two occupants were detained, but not arrested.  One of them left her purse on the front passenger seat.  An officer then conducted a sweep of the car’s interior to check for weapons, at which time he touched the bottom of the purse and detected the outline of a gun.  He retrieved the gun, brought it to his vehicle, and told the other officers to arrest the remaining two occupants.  Defendant pleaded guilty, but later moved to suppress the gun.  The trial court denied his motion, but a majority of the Appellate Division panel found that the officer’s search of the car was not a lawful protective sweep.  One judge dissented.

The Supreme Court found that the surrounding circumstances created a reasonable suspicion that the vehicle contained a weapon, but the five officers present at the scene acted in a manner that eliminated the risk that any of the four occupants could immediately access a weapon.  Thus the protective sweep exception to the warrant requirement could not be used to salvage the search.

In discussing this conclusion in depth, the Court observed that warrantless searches are permissible only if they fall within one of the recognized exceptions to the warrant requirement.  The protective sweep exception, which derives from Terry v. Ohio, held that police may conduct an investigatory stop if there are “specific and articulable facts which, taken together with rational inference from those facts, reasonably warrant that intrusion.”  The Court also noted that Terry stops are narrowly tailored to allow a reasonable search for weapons.  Further, the United States Supreme Court applied the protective sweep exception to a vehicle in Michigan v. Long, and New Jersey adopted that standard in State v. Lund.  The standard was discussed further in State v. Gamble.  Taken together, Long, Lund and Gamble therefore set the standard for a valid protective sweep of a vehicle that has been stopped.  To justify such a search, the State must present specific and articulable facts that, when taken with the rational inferences from those facts, justify a belief that someone in the car is dangerous and may have immediate access to a weapon.  Protective sweeps of vehicles cannot be justified by the potential presence of a weapon; rather, the doctrine turns on imminent danger to the police when someone has access to a vehicle that may hold a weapon, or may be able to overpower or evade officers at the scene. Continue reading ›

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In Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. _____, the United States Supreme Court held, among other things, that states cannot execute someone who is mentally disabled.  The Court also left to the states the task of determining whether a death row inmate has a mental disability that could prevent their execution.  Moore v. Texas, 581 U.S. _____ (2017), decided on March 28, 2017, clarifies this aspect of Atkins and Hall.  Briefly, in Moore, the Court held that state courts must utilize established diagnostic criteria when ascertaining whether a death row inmate has a mental disability.  In reaffirming its prior holdings that executing someone with a mental disability is unconstitutional, the Court noted that even mild mental or intellectual disabilities are disabilities, and states cannot execute anyone within the entire category of intellectually disabled offenders.

In 1980, Moore and two others robbed a supermarket in Houston.  At the supermarket, Moore and the others approached a courtesy booth that held two employees.  One of them realized that a robbery was taking place and started to scream.  Moore shot her in the head and killed her.  He fled, was arrested after 10 days, charged with capital murder, tried and sentenced to death by a jury.  Moore’s appeals spanned the next three decades.  In 2014, after a two-day hearing, a state habeas court concluded that Moore had an intellectual disability.  The Texas Court of Criminal Appeals (“CCA”), the final arbiter of habeas petitions in that state, rejected this conclusion and held its own hearing.    The CCA applied the criteria set forth in a 2004 Texas case, Ex Parte Briseno, which are as follows:

  • Did those who knew the defendant well during his developmental stages (family, friends, educators, employers, and other authorities), believe he was mentally retarded, and act in accordance with that assessment;
  • Has the defendant formulated and carried out plans, or is their conduct impulsive;
  • Does the defendant’s conduct indicate that they are a “leader” or “follower”;
  • Are the defendant’s responses to external stimuli rational and appropriate;
  • Are the defendant’s responses to oral or written questions on point, or does s/he wander from one subject to the next;
  • Can the defendant lie effectively; and
  • Did the underlying offense require planning, forethought and complex execution?

Continue reading ›

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While investigating a noise complaint at an apartment complex, an officer observed James Legette standing on a common porch.  The officer approached and Legette partially opened a door leading into his area.  The officer then smelled burnt marijuana, entered the porch area, and identified himself as an officer.  As Legette began to walk away, the officer requested identification.  Legette responded that he had to retrieve his identification from the apartment, and the officer replied that he would have to accompany him.  Legette entered the apartment and the officer followed.  The officer noticed a bulge in Legette’s sweatshirt.

After entering the apartment, Legette presented his identification and the officer radioed a request to check for outstanding arrest warrants.  Legette them removed his sweatshirt and asked a woman who was in the apartment to place it in the bedroom.  The officer then seized the sweatshirt from the bedroom and took Legette, who appeared anxious, outside.  Obviously, the officer did not have a search warrant.

The arrest warrant check was negative, and Legette did not consent to a search of the sweatshirt.  The officer had a police dog sniff the sweatshirt.  A “metallic” noise could be heard when the dog moved the sweatshirt.  The officer then discovered a loaded handgun in the sweatshirt. Continue reading ›

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State v. Bryant, a recent search and seizure case, discusses the factual predicate necessary to justify a protective sweep of a home.

Officers went to defendant’s home in response to a domestic violence report.  A woman had called the police, stated that she had been assaulted there, and was now outside in her car.  The woman did not provide her name or the identity of her attacker, but did provide the police with an address.  Having only this limited information, the first two officers to arrive at the home knocked on the door, entered, and told defendant to sit on a couch.  One officer questioned the defendant while the other conducted a protective sweep of the apartment, searching any area where a person may hide.

During the protective sweep, the officer saw what he thought was marijuana sticking out of a box in a closet.  The officer seized it, the defendant was arrested and removed from the premises, and a search warrant was requested and received.  The officers then discovered 55 grams of marijuana, packaging material and an assault weapon.  The defendant was charged with possession of CDS, Possession of CDS with intent to distribute, possession of an assault firearm, and possession of a weapon by a person with a prior indictable conviction. Continue reading ›

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The Fourth Amendment to the United States Constitution, as well as the analogous provisions of New Jersey state law, set rules concerning the manner in which officers can search a person, and/or their home, office or vehicle.  This body of law plays a central role in maintaining personal liberty and privacy, and impacts upon the rights and freedoms of every citizen.  However, at least one sitting US Supreme Court Justice (Breyer?) has noted that our Fourth Amendment case law is in “disarray”, or words to that effect.  This stems, at least in part, from the fact that these cases arise in a wide array of scenarios, and are very fact-sensitive.  This creates opportunities for widely divergent interpretations of facts and related applications of law, with the result that existing search and seizure case law is frequently unclear.  Indeed, this area of law demonstrates plainly and numerous individuals can have different views and opinions of the same plot line, and therefore reach different legal conclusions and results.  The New Jersey Supreme Court recently decided State v. Bivins.  This case, which is somewhat refreshing in its clarity, helps to define the limits of search and seizure activities in drug cases where the search is conducted pursuant to an “all-persons-present” search warrant.

In Bivins, the police obtained a no-knock warrant to search a residence believed to be involved in drug trafficking for narcotics and related contraband.  The terms of the warrant allowed the police to search the residence, and “all persons present reasonably believed to be connected to said property and investigation.”  The affidavit supporting the warrant stated, among other things, that the residence was “open for the sale of narcotics twenty-four (24) hours a day, seven (7) days a week.”  One of the state troopers involved in the execution of the warrant asserted that people were “in and out of the house at all times” and there may have been “a lot more occupants in there than [those] seen.”

This trooper also testified that when the police were entering the residence, he learned that two individuals had departed and were heading toward a grey Pontiac.  The trooper approached his designated location and saw a grey Pontiac approximately five or six houses down the block from the target residence.  The trooper also observed two individuals in the car, who were later identified as defendant Bivins and his cousin.  Significantly, the trooper did not personally observe Bivins or his cousin leave the residence and enter the Pontiac.  Bivins and his cousin were removed from the vehicle and searched, and each had 35 bags of cocaine. Continue reading ›

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Every participant in a jury trial has a defined role.  The judge manages the trial and acts as a judge of the law.  S/he will rule on legal issues that arise during pre-trial proceedings, supervise jury selection, rule on issues of law that arise during trial, instruct the jury on the applicable law, and then supervise jury deliberations.  The State and defendant each have their own lawyers who present evidence, challenge and test the evidence of their opponent, and generally advocate their client’s position.  The jury is the judge of the facts.  It listens to the evidence presented in the courtroom during the trial subject to the judge’s legal rulings, and determines whether or not the facts of the case – as presented in accordance with our rules of procedure and evidence – supports each element of each criminal charge that the State has brought against the defendant.  Thus, the jury is the fact-finder.  Its job is to determine the facts of the case.  In a pair of recently decided cases, our Supreme Court re-affirmed that fact-finding is the jury’s province, and that interfering with this function runs roughshod over fundamental principles of our trial process.

In Cain, Hackensack police detectives were conducting a surveillance of defendant’s home.  The detectives, who were in an unmarked vehicle, allegedly observed a hand-to-hand exchange between defendant and another individual on the porch.  They then followed the individual who, upon realizing that he was being followed, dropped an object on the ground.  The detectives retrieved the object, which was found to be crack cocaine.  Several days later, an officer observed another transaction between defendant and one or more individuals in front of defendant’s house, and later recovered two envelopes of heroin.  Testimony indicated that the heroin was purchased from the defendant.  The officers obtained a search warrant for defendant’s house, and recovered cocaine, heroin, a digital scale and baggies.

Like Cain, the facts in Simms were straight-forward and relatively easy to decipher.  Atlantic City detectives conducting a surveillance near a housing project observed a silver car park near a curb.  The driver reclined his seat so that he could not be easily observed, but raised his head periodically to look around.  A red car then parked in front of the silver car.  The driver of the red car approached the silver car and handed an object to the driver of the silver car in exchanged for what was believed to be US currency.  A detective saw the driver of the red car, the defendant, lean into the silver car and then walk away, but did not actually see an exchange.  The detectives did, however, see the defendant place “something” in his back pocket.  Following his arrest, the detectives approached the silver car and observed a bundle of heroin on the back passenger seat, which was later found to have the logo “Sweet Dreams”.  Another detective then approached the red car and saw the passenger stuffing something down the rear of her pants, which was later found to be bags of heroin stamped with the same logo. Continue reading ›

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Clients often attempt to articulate facts substantiating a violation of their constitutional rights.  Sometimes, the client’s description of the relevant facts can be used to at least articulate a legal basis for such a violation.  More frequently, however, the client’s description bears little, if any, relation to a constitutional violation.  What quickly becomes obvious is that most clients (indeed, most people) cannot identify their basic constitutional rights.  Non-lawyers may have vague notions of the right to be free from unreasonable searches and seizures or the right against self-incrimination, but these are only two of many constitutional rights that we all have.  Further, most people are also unaware that the federal Constitution is only one source of such rights.  State constitutions, including New Jersey’s, may guarantee different constitutional rights, or different (higher) levels of protections relative to their federal analogs.

The recently decided New Jersey Supreme Court decision of State v. Bass contains an extensive discussion of one of our most fundamental constitutional rights, which is the right to confrontation.  Simply put, a criminal defendant has the right to confront and cross-examine the witness(es) against them.  Justice Patterson’s unanimous opinion discusses different permutations of that right and also demonstrates that, where necessary, New Jersey will depart from federal law to chart its own course in this important arena.

After an evening of drugs, cross-dressing and, presumably, sexual activity, in a Neptune Township motel room, defendant David Bass shot and killed Jessica Shabazz, and shot and wounded James Sinclair.  Defendant, Shabazz and Sinclair were the only individuals present when the relevant events occurred.  Sinclair, who had a long criminal history, was the State’s lead witness at trial. Continue reading ›

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On July 2, 2009, at 11:30 pm, a car pulled up next to a woman who was walking to her home in Jersey City.  The passenger got out, approached her, tapped her hip with a gun, and asked for her phone.  The woman surrendered her purse which contained her phone and other valuable items.  She ran to a police station to report the crime.  While there, a patrol unit had stopped a car matching the description she gave police.  She was driven to the scene to view the car and the two occupants, but said that neither was the robber.  A few hours later, officers spotted another car matching the description of a car involved in several robberies in Jersey City that night.  The police stopped the car and discovered three individuals inside.  The occupants gave conflicting stories when questioned, and were taken to the police station and photographed.

Three days later, a detective asked the victim to come to the station to attempt to try to identify the robber from photobooks.  The photos of two of the three individuals removed from the second car, including that of the defendant, were placed in the photobooks before the victim saw them.  The victim selected defendant’s photo, saying that she was “pretty positive” he had robbed her.  The victim also viewed the vehicle, and said that it “looked like” the car from the robbery.  Based on this, defendant was arrested.

Six weeks after the robbery, the police arrested Stebbin Drew, who resembled the defendant, and found the victim’s cell phone in his possession.  A State Trooper called the victim in August to tell her this.  The victim told the assistant prosecutor about this call more than one year later during jury selection in defendant’s trial.  The assistant prosecutor told defense counsel about the call on the morning of the second day of trial.  The State called the victim as its first witness and, during cross-examination, defense counsel asked the victim about the Trooper’s call.  Counsel then moved for a mistrial, asserting that he had been denied exculpatory information.  The trial judge denied the motion.  During a subsequent discussion about a State Police report that the prosecutor’s office had located which noted that Drew possessed the victim’s cell phone when he was arrested, defense counsel renewed his motion for a mistrial.  The trial court again denied the motion.  The victim viewed Drew’s arrest photo during further testimony, and stated that he was not the robber.  The jury convicted defendant of, among other things, armed robbery, and the trial court imposed a 20-year term with an 85% parole disqualifier subject to the No-Early-Release Act. Continue reading ›

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