In Arizona v. Gant, police officers were investigating defendant Rodney Gant for suspected drug activity.  During the course of the investigation, officers discovered via a records search that Mr. Gant’s driver’s license was suspended.  Officers went to a house from which Gant was suspected to be selling drugs and saw Gant pulling into the driveway.  After Gant got out of the car, officers arrested and handcuffed Gant about 10 to 12 feet away from his car.  The arresting officer then called for backup and two additional officers showed up at the scene.  After Gant was secured in the back of a patrol car, two of the officers began searching Gant’s car.  One of the officers discovered a gun and the other a bag of cocaine in the pocket of a jacket on the back seat of the car.  Gant argued that the search was illegal because he had already been secured outside of the vehicle and posed no danger to the officers and no evidence of driving without a license could be found in the vehicle.  When asked why they conducted the search, the police officer responded: “Because the law says we can do it.”

In analyzing the legality of this search, the Supreme Court first noted that the baseline rule is that all searches conducted without a warrant are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated principles.  One of the exceptions to the warrant requirement is a search incident to a lawful arrest.  The Supreme Court previously held that a search incident to lawful arrest may only include the arrestee’s person and the area within his immediate control – meaning the area from which he might gain possession of a weapon or destructible evidence (commonly referred to as the arrestee’s “grab area”). 

In applying this rule to the automobile context, the Supreme Court had previously held in New York v. Belton that when an officer lawfully arrests the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile and any containers therein.  As a result of a dissent in the Belton opinion that warned about how the new case could be misinterpreted, the Belton opinion became widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.  In Gant, the Supreme Court decided to clarify their jurisprudence related to warrantless searches of a vehicle incident to a recent occupant’s arrest by holding that the constitution only authorizes a warrantless search of a vehicle incident to a recent occupant’s arrest when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

Nevertheless, the United States Supreme Court did not reach as far as the New Jersey Supreme Court has in protecting citizens’ right to be free from unreasonable searches and seizures, because the Supreme Court held that officers may still conduct a warrantless search of a vehicle incident to a recent occupant’s arrest if it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle.  However, under the facts of Gant, the Supreme Court found that the search was illegal  because Gant had already been secured in a patrol car and there was no reasonable basis to believe that evidence of the crime for which he had been arrested, driving without a license, would be found in the vehicle.

The Court also noted that the State of New York had seriously undervalued citizens’ privacy interests in their vehicles.  According to the State’s construction of previous Supreme Court precedent, the State would be permitted to rummage through the entire passenger compartment of a vehicle, including all purses, handbags, briefcases, and book bags every time a citizen was caught committing a traffic offense.  This understanding would give police officers unbridled power in searching through the personal effects of citizens, which is the very power that the Fourth Amendment sought to restrict.  The Court also noted that this case does not change the Court’s jurisprudence related to the “automobile exception” to the warrant requirement, which under federal law permits officers to search the passenger compartment of a vehicle whenever there is probable cause to believe that it contains evidence of criminal activity, regardless of whether any of the vehicle’s occupant’s are being arrested.  Finally, in responding to the argument that stare decisis requires adherence to the broad reading of the Belton decision, the Court stated that the Court has never relied on stare decisis to justify the continuance of an unconstitutional police practice.

Anyone who has been arrested in New Jersey should contact a New Jersey criminal defense lawyer to determine whether any evidence seized can be suppressed.  Criminal prosecutions have serious consequences and a defendant is best served by having defense counsel on his side.

At the same time, DEG hired an expert to determine where in that market DEG could possibly open its business without running afoul of either local zoning ordinances, or N.J.S.A. 2C:34-7, which prohibits operation of sexually oriented businesses within 1,000 feet of schools, school bus stops, child care centers, public playgrounds, places of worship, hospitals, and residential zones.  The expert determined that DEG could not legally open a sexually oriented business in Fairfield or 33 surrounding municipalities.

DEG brought the issue to court, and a Superior Court judge held that Fairfield’s zoning ordinance was unconstitutional on its face because it was content-based and did not provide for an alternative means of communication.  The judge also stated on the record that there was a reasonable likelihood that N.J.S.A. 2C:34-7 was also unconstitutional as applied in Fairfield.  After invalidating the local ordinance, the judge ordered Fairfield to issue the permit to DEG.  However, the judge also ordered a plenary hearing on whether N.J.S.A. 2C:34-7 was being unconstitutionally applied in Fairfield.  Meanwhile, DEG’s expert determined that DEG’s business violated N.J.S.A. 2C:34-7 because it was located within 1000 feet of one residential neighborhood.

In order to avoid further litigation and the possibility of the state law being declared unconstitutional as applied in Fairfield, the Township decided to enter into a settlement with DEG.  As part of the settlement that was agreed upon by the parties, DEG would be permitted to operate its business at the location it had previously leased in Fairfield, and if the Township were ever to adopt an ordinance permitting a sexually oriented business to be located in some other zone other than the zone where DEG’s business was currently operating, DEG would apply for, and the Township would grant, a Certificate of Non-Conformity for the store. 

Shortly thereafter, Fairfield did, in fact, adopt an ordinance that permitted sexually oriented businesses to be located in one zone within the Township; however, it was not the zone where DEG’s shop was located.  In accordance with the settlement, DEG applied for a Certificate of Non-Conformity.  However, the Township denied the application.  Fairfield then hired its own expert, who concluded that DEG’s expert was wrong in his assessment that there was nowhere in Fairfield where a sexually oriented business could be located without violating N.J.S.A. 2C:34-7.  Fairfield argued that because of this mistake, it should not be bound by its settlement with DEG.

In analyzing this case, the Supreme Court of New Jersey acknowledged that sexually oriented speech is protected by the First Amendment of the United States Constitution.  However, the Supreme Court also recognized that certain restrictions can be placed on this type of speech in order to control the secondary effects that sexually oriented businesses might have on the surrounding community.  Nevertheless, any restrictions must be only on the time, place, and manner of the speech.  The restrictions also must not be based on the content of the speech.  Finally, the restrictions must serve a substantial governmental interest, and allow for reasonable alternative avenues of communication.

After providing the constitutional backdrop, the Supreme Court also noted that a local municipality is permitted to settle a claim that challenges the constitutionality of the way a state statute is being applied in that municipality, as long as the claim is a substantial one.  In light of the Superior Court judge’s assessment that there was a substantial likelihood that N.J.S.A. 2C:34-7 was being unconstitutionally applied in Fairfield, the Supreme Court reasoned that this case did present a substantial claim.

The Court then analyzed Fairfield’s request for relief pursuant to Rule 4:50-1, from the consent judgment entered by the lower court, which confirmed the settlement between the parties.  The Court noted that relief from a judgment, whether it be a consent judgment or a judgment issued by the Court, should only be granted sparingly and is not an opportunity for a party to a lawsuit to simply change their mind.  The Supreme Court then determined that the consent judgment was not the result of a mistake, as Fairfield claimed.  Fairfield had been given an opportunity to hire its own expert to challenge the findings of DEG’s expert.  Fairfield chose to forego that opportunity and enter into a settlement.  Therefore, Fairfield would have to live with the consequences of their choice not to retain their own expert.

Fairfield also argued that the consent judgment should be invalidated as void because it permitted DEG to engage in an illegal act – operating a sexually oriented business in violation of N.J.S.A. 2C:34-7.  The Supreme Court similarly rejected this argument.  The Court noted that the statute contains a clause that permits a municipality to pass an ordinance to allow a sexually oriented business in an area where it would otherwise be prohibited by state law.  The purpose of that clause was to save the statute from constitutional attack in municipalities where the statute would have the effect of barring sexually oriented businesses from the entire municipality.  Therefore, the result of the consent judgment entered by Fairfield was not that it permitted an illegal location for a sex shop, but rather that it made the location “legal.”

Finally, the New Jersey Supreme Court also rejected Fairfield’s argument under Rule 4:50-1(e) that the passing of a new ordinance that permitted sexually oriented businesses in one zone in the Township discharged its obligations under the judgment because it would no longer be equitable for the courts to enforce the judgment.  The Supreme Court held that in order for a litigant to be discharged from a judgment under equitable principles, that litigant has to show that events have occurred after the judgment which, absent relief, would cause extreme and unexpected hardship on that litigant.  That element was not satisfied by Fairfield in this case, and therefore the Court denied Fairfield’s request for relief from the consent judgment.

After finding that the consent judgment and settlement did not violate any other equitable principles and did not violate the Municipal Land Use Law, the Supreme Court upheld the consent judgment and ordered that Fairfield must comply with the settlement.  When complicated zoning and land use issues arise, contact a New Jersey zoning and land use lawyer for assistance.

Both the Constitution of the United States and the Constitution of the State of New Jersey guarantee defendants the right to a fair trial before an impartial jury.  This means that defendants are presumed innocent until they are proven guilty.  It also means that a defendant’s guilt should be determined only based upon the evidence introduced against that defendant at the time of trial.  A defendant’s guilt should not be determined based upon extraneous factors such as the fact that the government suspects the defendant has committed a crime, the fact that the government is keeping the defendant in custody during his trial, or any possible impression made upon the jury based on the fact that witnesses testifying on behalf of the defendant are shackled or wearing prison garb.

Courts have consistently recognized that the appearance of a witness in a courtroom in prison garb or shackles automatically undermines the credibility of that witness because it leads the jury to believe that the defendant must turn to somebody who is already “guilty” in order to save his own case.   Based on these reasons, the New Jersey Supreme Court has held that a prisoner who is a witness on behalf of a defendant should only appear in restraints if, after a hearing, the trial judge determines that physical restraint is reasonably necessary to maintain the security of the courtroom.

The question presented in State v. Kuchera, however, was whether prisoners testifying for the prosecution against the defendant can appear before a jury in shackles or prison garb without a hearing on whether physical restraint is necessary for courtroom security.  The Supreme Court decided that there is no principled reason why the same analysis that applies to defense witnesses should not also apply to prosecution witnesses.  Therefore, prosecution witnesses who are prisoners should also not appear in court in front of a jury in shackles or prison garb unless the trial judge, after conducting a hearing, determines that the witness poses a risk to courtroom security.  If the trial judge determines that the witness does pose a risk to courtroom security and orders the witness to be shackled, the trial judge should clearly instruct the jury that it should give the fact that the witness is shackled no consideration whatsoever in analyzing the credibility of the witness.

If you have been accused of a crime in the State of New Jersey, contact a New Jersey criminal defense lawyer for assistance in your case.  For more information related to recent criminal defense issues in New Jersey, Nace Naumoski has also written articles about anonymous tips, intent requirement for robbery, lie detector test evidence, and the automobile exception to the search warrant requirement.

According to the officer, as he approached the suspect (suspected by the officer from a previous investigation to be a gang member), the suspect’s hand went to his waistband.  The officer testified that he knew that gang members in this area sometimes hid guns in their waistband, so he frisked the defendant.  The officer did not find a handgun in the defendant’s waistband, but did find drugs.

The Appellate Division held that the search by the officer was illegal because an anonymous tip from an informant that a suspect has a handgun is not sufficient cause for an officer to search a suspect.   If there is no individualized  suspicion that the suspect has committed a crime and may be in possession of a weapon, the police do not have the right to conduct a “stop and frisk” search.   The Court pointed out that to allow searches based solely on an anonymous tip would enable anyone seeking to harass another person to set in motion an intrusive and embarrassing police search by simply calling in an anonymous tip that the person has a firearm.

If you have been charged with a crime in New Jersey, a New Jersey criminal defense lawyer may be able to suppress the evidence obtained by the police and prosecutors against you if that evidence was obtained through an illegal search.  The constitutions of the United States and the State of New Jersey protect citizens from unreasonable searches and seizures, and a lawyer can help to make sure that your rights are protected.

In this case, the Bertinos wanted to open a retail store in Cinnaminson, NJ that would sell “risqué” adult books and novelty items, such as lingerie, greeting cards, games, videos, and explicit “how to manuals.”  However, the store would not contain video booths or peep shows, and would not carry adult magazines such as Hustler or Playboy.  The Bertinos wanted to locate the store within a redevelopment zone in Cinnaminson.  After writing to the Township about their intent to open the store, the Township responded that the store would violate a local zoning ordinance that prohibited adult book stores in that redevelopment zone.

The Bertinos challenged the constitutionality of the ordinance in a lawsuit filed in the Superior Court.  The Bertinos argued that the ordinance violated the Free Speech Clause of the First Amendment of the United States Constitution.  Our courts have held that governmental regulations that are not based on the content of the speech are constitutional only if they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.  By contrast, governmental regulations that are based on the content of the speech or constitutional only if they are narrowly tailored to promote a compelling governmental interest.  However, our courts have also held that government regulations that limit the location of businesses that sell sexually explicit materials should be analyzed under the same standard as content-neutral regulations of speech because these regulations are designed to combat the undesirable secondary effects of such businesses (e.g., promoting juvenile delinquency, contributing to an overall increase in crime, creating an environment that leads to the general deterioration of neighborhoods, and lowering property values).

 In defending the ordinance, the Township of Cinnaminson argued that the ordinance advanced a legitimate governmental interest by preserving the integrity and character of the redevelopment zone.  However, the Township did not present any evidence to substantiate its position.  The Superior Court judge who heard the case agreed with the Township.  The Judge decided that the Township did not need to substantiate its position that the town ordinance was directed towards the negative secondary effects of adult bookstores because the negative secondary effects in this case were “obvious.”   The judge also found that the ordinance served a substantial governmental interest, in spite of the fact that the Township presented no evidence on this issue, because it was “common sense” that the adult bookstore would have a negative impact on the morals of the community.

The Appellate Division reversed the lower court and held that some evidence is necessary to substantiate that the ordinance was designed to serve a governmental interest.  The Appellate Division noted that the Township could meet its burden of proof in several ways: it could present testimony from realtors that the adult bookstore would have a negative impact on property values, it could present information gathered from chambers of commerce or other civic organizations about the potential negative effects these businesses have on similar communities, or it could present accounts from law enforcement officers that, based on their experience and training, these types of establishments draw crime to the area. 

Ultimately, the Court concluded that because these types of businesses are unpopular, any court that reviews ordinances designed to prohibit such businesses must be vigilant and guard against the use of zoning power that serves only to pander to mere prejudice.  It may be helpful for business owners to contact a New Jersey zoning and land use lawyer to analyze any alleged violations of municipal ordinances.

In this case, A.O. was accused of rape by his girlfriend’s daughter.  About four hours after he was accused, A.O. agreed to take a lie-detector test so that he could clear his name.  Without talking to an attorney, A.O. signed a stipulation before taking the test, within which he: (1) agreed that the polygraph examiner was an expert, (2) waived any objection to the admissibility of the expert’s testimony, (3) waived the right to call his own expert to challenge the test, and (4) agreed that the results of the lie-detector test would be admissible at trial.  The reason the police ask for this stipulation is because lie-detector tests have been widely held to be inaccurate, and therefore, without a stipulation, they are not admissible at trial. 

The defendant failed the test, the lie-detector evidence was used against him at trial based on the stipulation, and the defendant was convicted and sentenced to eighteen years in prison.  The only credible evidence against A.O. was the lie-detector test.  There was no physical or medical evidence of rape.  In addition, the child that accused A.O. of rape recanted prior to trial, and had also accused a DYFS worker of sexual assault and later recanted that accusation as well.

The State argued that the right to counsel provided by the Sixth Amendment of the United States Constitution and Article I, Para. 10 of the New Jersey Constitution, does not apply until a person accused with a crime is formally charged.  At the time A.O. took the lie-detector test, he had not yet even been arrested and had not been charged with any crime.  The Supreme Court of New Jersey generally agreed that the right to counsel does not apply until a suspect has been formally accused with a crime.  However, the Supreme Court also noted that lie-detector tests present a special situation because they are generally considered unreliable in the scientific community (in fact, 28 states have entirely banned their use in court), but are generally considered infallible by the public. 

Relying on the Court’s overarching constitutional responsibility to guarantee the proper administration of justice, the Supreme Court barred the introduction of polygraph evidence based on stipulations entered into without counsel.  The reason for this is because the stipulations are requiring the defendant not only to make determinations about what information he is going to give, but also to make determinations that touch upon trial strategy.  Trial strategy is within the domain of defense counsel, and defense counsel should be the one to make determinations about challenging the admissibility of evidence at trial.  It is advisable that any suspect accused of a crime in New Jersey consult with a New Jersey criminal defense lawyer regarding their defense.

On February 25, 2009, the New Jersey Supreme Court decided, in the case of State v. Pena-Flores, that police officers can only search a vehicle without a warrant only if there is both probable cause that the vehicle contains evidence and exigent circumstances that justify dispensing with the warrant requirement. A New Jersey criminal defense lawyer can be invaluable to a suspect to help the suspect determine whether a search conducted by the police was illegal and whether the evidence obtained from that search can be suppressed.

Both the Constitution of the United States and the Constitution of the State of New Jersey guarantee the right of the people to be secure from unlawful searches and seizures. Normally, for a government official (e.g., a police officer) to perform a search, that official must obtain a search warrant. Under certain circumstances, officers are permitted to conduct a search without a warrant; however, in order to do so, the search must fall into one of the categories of “exigent circumstances” exceptions that either the Supreme Court of New Jersey or the Supreme Court of the United States has recognized: the “regulatory authority” exception, the “third-party intervention” exception, the “emergency” exception, the “inventory search” exception; the “hot pursuit” exception, the “community caretaking” exception, the “consent search” exception, the “search incident to arrest” exception, the “deceptive guest” exception, and the “automobile” exception.

Under the “search incident to arrest” exception, when a suspect is arrested, the police may search the suspect’s person and his “grab area.” The “grab area” is defined as the entire area where a suspect can potentially reach for a weapon or to destroy evidence. The United States Supreme Court has held that when a suspect has been arrested, the police may search the passenger compartment of his vehicle even if the suspect has been taken out of the vehicle and secured outside of the vehicle. However, the New Jersey Supreme Court has held that, under the New Jersey Constitution, if a suspect has been removed from his vehicle and has been secured outside of the vehicle, the passenger compartment of the vehicle is no longer part of the “grab area,” and therefore, the police cannot search the passenger compartment without a warrant unless some other exception to the warrant requirement exists.

Under the “automobile” exception, the police may search a suspect’s automobile as long as the automobile is readily mobile and there is probable cause to believe that the vehicle contains evidence of a crime. Under the federal constitution, the “exigent circumstances” are automatic based on the fact that a vehicle is mobile, even if, in fact, no circumstances exist that would indicate to the police that there is a likelihood that the vehicle is going anywhere. The Supreme Court of New Jersey, interpreting the New Jersey Constitution, has taken a different approach. In addition to the requirements that the automobile be readily mobile and there be probable cause to believe the vehicle contains evidence of a crime, New Jersey has added two additional requirements: (1) the stop of the vehicle has to be unforeseen and spontaneous, and (2) the exigency has to be assessed based on the particular circumstances of the situation.

In order to determine whether the particular facts of the situation justify a warrantless search, courts have looked at many factors, including: 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 location of the car and who could remove it or its contents, whether the arrest was observed by passersby who could tamper with the car or its contents, whether it would be safe to leave the car unguarded, and whether the delay caused by waiting for a warrant would place the officers or the evidence at risk.

In State v. Pena-Flores, the suspect was pulled over by a police officer when he committed a traffic violation. When the police officer approached the vehicle, he smelled a strong “raw marijuana” smell coming from the vehicle.; however, the officer could not see inside the vehicle because of tinted windows. The officer asked the driver to step out of the vehicle and go to the rear of the vehicle. The officer then conducted a pat down search of the driver. A second officer arrived on the scene. The first officer passed the driver on to the second officer and then removed the passenger from the vehicle. After no contraband was found on either suspect, the first officer opened the passenger door of the vehicle and began searching the passenger compartment. The officer then discover two clear bags of marijuana on the floor of the passenger side of the vehicle. The first officer then instructed the second officer to place both suspects under arrest. The officer continued his search of the vehicle and discovered additional bags of marijuana and a nine-millimeter handgun. The entire search was conducted without a warrant.

In analyzing the facts of this case under the “automobile” exception to the warrant requirement, the Supreme Court first determined that the stop of the vehicle was lawful because the driver had committed a traffic violation. The Court then reasoned that the smell of “raw marijuana” and the officer’s experience and training related to marijuana provided probable cause to believe that the vehicle contained contraband. The stop was also spontaneous and unforeseen. Therefore, the only issue is whether an “exigency” existed in fact, based on the circumstances of the situation. Given the fact that it was late at night, the ratio of officers to suspects was two to two, and there was no backup available, the Supreme Court determined that exigency existed sufficient to allow the police to conduct a warrantless search.

The companion case of State v. Fuller was also decided by the Supreme Court. In that case, a state trooper pulled over a vehicle driven by the suspect because the suspect was driving without wearing a seatbelt. The trooper asked the suspect for his license, insurance, and registration. The suspect gave the trooper a Pennsylvania license and a bill of sale for the vehicle. The trooper called in the license and discovered that it was fake. The bill of sale also pertained to a different vehicle other than the one that was being driven by the suspect. While conversing with the suspect, three additional state troopers arrived on the scene. The trooper then asked the suspect to step out of the vehicle and proceed to the rear of the vehicle. At that point, the suspect admitted that he had presented a fake driver’s license. The trooper then arrested the suspect for displaying a false driver’s license.

The trooper searched the suspect and discovered large bundles of cash in his pockets. After the search, the suspect was placed inside of the police cruiser. Two troopers then conducted a search of the suspect’s vehicle. The troopers discovered a loaded handgun wedged between the center console of the vehicle and the driver’s seat. The troopers also found money and two prescription bottles containing 106 Xanax inside the console. The troopers found bags of marijuana in the dashboard compartment, additional bags of marijuana under the back seat, and a sword behind the back seat. The Supreme Court determined that the warrantless search of the center console and dashboard compartment was legal because a police officer is permitted to search for credentials in areas where credentials are normally kept when false credentials are presented to the officer. However, the Court determined that further search of the vehicle (including the search conducted underneath and behind the back seat) was illegal because an exigency did not exist in this case. In this case, the suspect was pulled over in broad daylight, the suspect was arrested and secured in the back of the police cruiser, there was nothing to suggest that the suspect had any cohorts who might try to move the vehicle, and the arresting officer was assisted by several other troopers.

The Supreme Court went on to decide that the police can obtain a search warrant by telephone without the need to prove that an exigency exists and that telephone warrants would be given the same weight and effect as in-person warrants. This case has cemented the Court’s long history of jurisprudence in New Jersey regarding the “automobile” exception that has strayed from federal jurisprudence. Therefore, a suspect should contact a New Jersey criminal defense lawyer to determine whether evidence against the suspect can be suppressed as the fruit of an illegal search.