Evidence

State v. Terry – Warrantless Search of Glove Box Reasonable Under Certain Circumstances

June 19, 2018 | By James S. Friedman, LLC

The New Jersey Supreme Court recently approved a warrantless search of a vehicle’s glove box for registration and related documentation. In doing so, the Court set parameters for when such a search will be constitutionally valid.

Defendant’s truck ran a traffic control and almost hit a police car. The officer activated his lights and sirens and pursued the truck. Defendant did not stop, but continued driving erratically. The officer checked the vehicle, which was a rental that was not reported stolen. Defendant subsequently turned into a gas station and stopped. The officer pulled in behind the truck, while a back-up vehicle pulled in up front. The officer then repeatedly ordered the defendant to show his hands, but the defendant did not respond. The officer opened the vehicle’s door and ordered the defendant to get out. Defendant left the vehicle, leaned against it, placed his hands in his pockets, and asked why he was pulled over. The officer directed the defendant to show his hands, and he complied slowly. He was then patted down for weapons. He produced his driver’s license when asked for identification. He was then asked for a vehicle registration and proof of insurance, but did not respond. When asked a second time, he shrugged his shoulders. He did not make any gestures that would indicate that the requested documents were on his person or in the truck. When asked if he owned the truck or had any paperwork for it, he again failed to respond. The officer then approached the passenger door, opened it, and looked in the glove box which was believed to be the most common place for keeping such papers. He found nothing in the glove box, but discovered a handgun on the floorboard.

The motion judge denied a defense motion to suppress, finding that the officer was credible and had the right to search for the documentation in the place where it is typically kept. The court also found that the discovery of the handgun fell within the plain view exception to the warrant requirement. The defendant was convicted of weapons offenses at trial, but the Appellate Division reversed, finding that the warrantless search of the truck violated both the federal and state constitutions. Continue reading ›

State v. Hummel and Inventory Searches

June 10, 2018 | By James S. Friedman, LLC

An inventory search is a narrow exception to the Fourth Amendment warrant requirement. This search occurs after a defendant is arrest, but before incarceration. Briefly, the police are allowed to search the defendant/arrestee without a warrant and inventory the property in their possession. The goals of this search are to protect the defendant’s property while s/he is being held; to protect law enforcement from false property claims; and to safeguard the police from danger. These searches are administrative in nature, and frequently do not receive significant attention. In State v. Hummel, the New Jersey Supreme Court recently provided guidance on what qualifies as a proper inventory search.

Thomas Corbin was killed on December 5, 2010. Two days later, law enforcement informed Lori Hummel that they wanted to take her to a police station for two outstanding traffic-related bench warrants. She was then taken to the Gloucester County Prosecutor’s Office, where she was met by several detectives and placed in an interrogation room. She had her purse on the table in front of her. Detectives entered the room to begin questioning her, and sat down at the table without frisking her or removing her purse. Soon after questioning started, she reached into her purse to get her cell phone. She checked the time, and told the detectives that she had to pick up her daughter by a certain time. The detectives did not comment on that but instead asked her to be sworn in, and then questioned her without first advising her of her Miranda rights. When asked about her cell phone, she began looking through her purse for the receipt from its purchase. The detectives continued questioning her about her relationship with Corbin.

The detectives then left the room. After returning her possessions to her purse, she left the room and asked the detectives if she could leave to get her daughter. They did not allow her to leave and she asked if she was under arrest. One of the detectives said “technically” because of the traffic warrants, and that they still had questions for her. She indicated that she thought she should get an attorney. After questioning her about her decision to obtain counsel, the detectives left the room. One of the detectives then came back in, cuffed her leg to a bar on the floor and told her she had an outstanding traffic warrant. She asked repeatedly if she could call her lawyer. The detective who cuffed her took her purse from the table, and the defendant objected. Another detective then told her she was in custody. As the detective with the purse left the room, the defendant said “Hopefully that $500 ain’t missing out of there.” Continue reading ›

State v. Hagans – Recent New Jersey Supreme Court Case Addresses Automobile Consent Searches and the Importance of MVRs

May 27, 2018 | By James S. Friedman, LLC

A state trooper stopped a vehicle on I-295 in Burlington County. The basis for the stop was a damaged tail light. The vehicle, which also changed lanes without signaling, had three occupants – the driver, a front-seat passenger, and a six-year-old child in the back seat. The trooper smelled burnt marijuana upon approaching the passenger side of the vehicle, and then asked the front passenger, the defendant Hagans, to step out of the vehicle. He arrested, handcuffed, and Mirandized him, and called for backup. He then asked the driver, Shonsheray Chandler, to step out of the vehicle. He Mirandized her and asked her about the presence of Marijuana in the car. She denied both knowing the defendant possessed marijuana, and that she had been smoking it in the car. He handcuffed Chandler and placed her in the back seat of the police car.

The trooper asked Chandler to consent to a vehicle search. Prior to reading her the consent form, he stated “it would be a lot easier if you would just make things easy.” He read her the form, told her that she could refuse to consent, and that she could leave absent some other reason to hold her. He also told her that she could be present during the search if she consented, and could withdraw consent at any time. At first, Chandler refused to consent to the search. The trooper responded by saying that he was going to apply for a search warrant which would just prolong the inevitable, and that he just wanted to make things easier. Chandler then consented to the search. In fact, the record indicated that she repeatedly consented to the search after her initial denial. The trooper then re-read the consent form in its entirety and again asked Chandler if she consented to the search, and she responded in the affirmative. The trooper also repeated for the mobile video recorder (“MVR”) that Chandler initially denied consent, but then changed her mind. The vehicle search yielded a bag of marijuana and a handgun.

The defendant admitted that the marijuana and gun were his, and was charged accordingly. During a suppression hearing, the trial court found that based upon the totality of the circumstances, the consent to search was valid and not coerced. The Appellate division affirmed. Continue reading ›

State v. Mosley – State’s Use of Hearsay Evidence at Probation Violation Hearings

March 9, 2018 | By James S. Friedman, LLC

Most defendants who are facing jail time are very satisfied with a probationary sentence in lieu of incarceration. However, defendants sentenced to probation do not always realize that the sentence comes with a list of terms and conditions with which they must comply during their period of supervision. Some terms and conditions are fairly standard. These typically include remaining arrest-free, maintaining employment, going to school, and remaining drug and alcohol free. The sentencing judge can also impose more case-specific or defendant-specific terms and conditions that can be very creative, and are designed to meet the unique needs of the matter at hand.

The failure to comply with the terms and conditions can result in the filing of a violation by the probation officer responsible for the case. The Court will then schedule a hearing on the violation. If the violation is sustained, the Court could impose penalties that range from a lengthening of the probationary term to a sentence in state prison. Under current law, the maximum term of probation in New Jersey is 60 months, or five years. Certain defendants may be eligible for early termination if they can show compliance with all conditions and requirements. Defendants must always remember that being on probation is not always easy, and the likelihood of a violation typically increases with the length of the probationary term. Put somewhat differently, defendants who are placed on probation for long periods of time are at greater risk of facing a violation.

State v. Mosley, decided by the New Jersey Supreme Court on March 6, 2017, reminds us that probation violation hearings are not criminal trials. The State bears the burden of proving the violation, but the standard of proof is much lower than what is required at trial. This is largely because probation violation hearings are not viewed as part of a criminal prosecution, but as part of the corrections process. Continue reading ›

State v. Boone – Evidence Suppressed Because Search Warrant Application Lacked Sufficient Detail

December 24, 2017 | By James S. Friedman, LLC

Generally speaking, there are two broad categories of searches. Either a search can be made with a search warrant, or it can be warrantless. Our law prefers searches that are made pursuant to a warrant. A warrantless search will be valid only if the search and seizure activities fall within one of the recognized exceptions to the warrant requirement, each of which has its own detailed requirements.

Evidence seized pursuant to a search conducted with a warrant is, as a general rule, harder to suppress than evidence seized without a warrant. Defense counsel must carefully review the warrant paperwork, which consists of an application submitted in support of the warrant, the warrant itself, and the return on the warrant, so as to locate defects in the application process that can serve as the basis for a suppression motion. The identification of such defects was the basis for the recent New Jersey Supreme Court decision in State v. Boone, which was decided on December 18, 2017.

Boone faced a series of narcotics and weapons charges stemming from contraband that the police located in his Hackensack apartment in August, 2012. The search of his apartment was conducted pursuant to a warrant. Boone moved for an order suppressing the evidence since the warrant application lacked any information as to why his specific unit should be searched. Continue reading ›

The Twinkie Defense – Not for Every Case

October 8, 2017 | By James S. Friedman, LLC

Criminal attorneys frequently assert novel defenses at trial and during plea negotiations. One of the more interesting defenses, sometimes referred to as the “Twinkie” defense, has existed for a number of years. It sounds patently silly on the surface given its name, but may actually have some basis in reality and, under appropriate circumstances, may be used effectively in cases involving criminal defendants with mental health issues.

The earliest notable use of the defense dates back to the trial of Dan White who was charged in the 1970s with shooting George Moscone, the Mayor of San Francisco, and Harvey Milk, a city supervisor. Defense counsel presented evidence that White was mentally ill and depressed, and that his symptoms were worsened by eating junk food. White’s “main” defense was actually diminished capacity, but he asserted that eating large amounts of junk food contributed to his existing mental health issues. As ridiculous as it sounds, the argument apparently assisted him in obtaining a conviction for the lesser included offenses of voluntary manslaughter, instead of murder.

Variations on the defense have been asserted since the White case by defendants with mental health problems and issues. In or around 2017, Matthew Phelps of North Carolina was charged with his wife’s stabbing death. He discovered her blood-covered body on the floor when he woke up one morning, but had no memory of events from the prior evening. He believed he attacked her, but claimed that he remembered nothing because cough medicine that he took to help him sleep caused him to black out. Similarly, Dr. Louis Chen was charged with murdering his partner and their son. He asserted that at the time of the murders, he suffered from depression and paranoia which were worsened by his ingestion of cough medicine. James McVay, who claimed to have mental health and addiction issues, was charged with a stabbing death. He argued, among other things, that at all relevant times, he suffered from hallucinations caused by mixing alcohol and cough syrup. Shane Tilley, who presented evidence that he suffered from a schizoaffective disorder, argued that he stabbed someone to death while he was intoxicated by cough syrup. Continue reading ›

Turner, et al, v. United States – A Primer on Brady Basics

September 13, 2017 | By James S. Friedman, LLC

It has been said that the defense attorney is frequently the most ignorant person in the room. The reason for this unflattering description is that s/he knows the least about what actually happened at the crime scene. The prosecutor has an army of investigators tasked with developing as much information as possible concerning the alleged underlying offenses. The defendant knows what happened because s/he was presumably present when the relevant events transpired. Defense counsel is the last person to arrive on the scene and, more often than not, lacks the resources to conduct an investigation rivaling that of the prosecuting authority. Thus, the defense attorney’s best (and frequently only) reliable source of information is the discovery received from the State or the Government. Generally speaking, the prosecutor must turn over anything that may be exculpatory or used to obtain a conviction. The failure to do so may violate the principles set forth in Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Brady held, among other things, that the Due Process clause is violated if the Government withholds evidence that is favorable to the defense and material to a defendant’s guilt or punishment. In Turner, the United States Supreme Court rejected a Brady claim because both prongs of this test were not satisfied.

The seven defendants in this case, including Christopher Turner (“Turner”), were indicted, tried and convicted for the kidnapping, robbery and murder of Catherine Fuller (“Fuller”). The centerpiece of the Government’s case was that Fuller was attacked by a large group of individuals. Their direct appeals were rejected. In post-conviction proceedings, the petitioners alleged that the Government withheld seven pieces of evidence that were both favorable to them and material to their guilt insofar as the missing items could have been used to undermine the Government’s “group” theory and suggest an alternative theory, which was that Fuller was attacked by, at most, one or two individuals.

Significantly, the Government did not contest the claim that the withheld items were favorable to the defense, but did challenge the conclusion that these items were material. As to this point, the Court found that evidence is “material” when it is reasonably probable that its disclosure would have changed the result of the proceeding. Reasonable probability of a different result occurs where the fact that the evidence was missing undermines the confidence in the trial’s outcome. To reach these conclusions, the missing evidence must be evaluated in the context of the entire record. Continue reading ›

State v. Robinson, the Protective Sweep Doctrine, and Automobile Searches – New Jersey Supreme Court Restates the Standards

May 3, 2017 | By James S. Friedman, LLC

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 ›

State v. Tier – New Jersey Supreme Court Clarifies Defendant’s Discovery Obligation Concerning the Production of a Defense Witness’s Oral Statements

May 2, 2017 | By James S. Friedman, LLC

New Jersey has among the most liberal criminal discovery rules in the country. The State is obligated to provide defense counsel with a substantial body of material early in the case. This is unlike many – if not most – other jurisdictions. For example, in the federal system, significant amounts of discovery typically appear shortly before trial, leaving defense counsel with little time to review, analyze and investigate its content. In New York County, the only discovery defense counsel may receive early in the case is a “People’s Voluntary Disclosure Statement”, which is a set of form questions that have been drafted and answered by the District Attorney’s Office. (Basically useless.) Not so in New Jersey – Here, defense counsel receives significant discovery up front, often without making a formal request.

What are defense counsel’s discovery obligations to the State? They are obviously different because defense counsel has to be concerned with their client’s right to remain silent, protection of work product, and the fact that the State – not the defense – has the burden of proof. In State v. Tier, decided May 2, 2017, the New Jersey Supreme Court clarified defense counsel’s post-indictment reciprocal discovery obligations concerning the oral statements of defense witnesses. As the Court noted, this was an issue of first impression in New Jersey.

The facts are not complex. Neighbors contacted the police because they believed that CL was having a physical altercation with her boyfriend, Tier. The officers approached the house and heard a woman scream “Help, he’s trying to kill me.” They kicked in the door and saw Tier on top of CL, strangling her. A grand jury indicted Tier for kidnapping and attempted murder. Continue reading ›

State v. Bacome – NJ Supreme Court Reaffirms “Heightened Caution” Standard for Ordering Passenger From Stopped Vehicle

February 10, 2017 | By James S. Friedman, LLC

In State v. Bacome, decided January 31, 2017, two Woodbridge detectives observed the defendant-driver and a passenger in a Ford Bronco. The passenger, who was in the front seat, was later identified as the vehicle’s owner. The detectives claimed that both men were known drug dealers. They followed the Bronco to Newark, but lost sight of it in an area purportedly known for drug trafficking. They then assumed that the Bronco would return to Woodbridge with drugs purchased in Newark. They spotted the Bronco after returning to Woodbridge, and stopped it when they saw the passenger was not wearing a seatbelt.

Each detective approached the Bronco from opposite sides of the vehicle. One detective stated that Bacome leaned forward and appeared to be reaching under his seat. He immediately ordered Bacome out of the car. The other detective then ordered the passenger from the car, and both men complied. Each was questioned separately about their trip, and gave contradictory responses. Since the passenger was now out of the car, the detective was able to to see rolled up paper shaped like a straw and a small piece of steel wool. Both items were indicative of drug use. The passenger consented in writing to a vehicle search. The search yielded crack cocaine and other paraphernalia. Both men were arrested.

The trial court denied defendants’ motion to suppress the drugs and other seized items, finding that the vehicle stop based upon the seatbelt violation was lawful. Further, the removal of both men from the Bronco was also lawful because the detectives had reasonable and articulable suspicion of criminal activity. Continue reading ›