Summer NJ Municipal Court Law Review 2010 1. Error by police dispatcher in invalid arrest warrant requires suppression of evidence under NJ Constitution. State v. Handy 412 NJ Super. 492 (App. Div. 2010) This appeal required the Court to determine whether evidence found during the search incident to defendant's arrest should have been suppressed because the dispatcher who incorrectly informed the arresting officer that there was an outstanding arrest warrant acted unreasonably under the circumstances, even though the conduct of the arresting officer himself was reasonable. The warrant at issue, which was ten years old at the time, had the same birth month, but a different birth day and year. The first name on the warrant was a variant spelling of defendant’s first name. The court concluded that suppression is required and, consequently, reversed the conviction based on NJ Constitution. 2. Korean speaking not defense to refusal and defense should file suppression motion. State v Kim 412 NJ Super. 260 (App. Div. 2010) Defendant's conviction for refusal to submit breath samples, N.J.S.A. 39:450.2 and N.J.S.A. 39:450.4a, is affirmed because the State is not required to prove he understood the standard statement read to him in English, State v. Marquez, 408 N.J. Super. 273 (App. Div.), certif. granted, 200 N.J. 476 (2009), and on procedural grounds because defendant failed to move to exclude evidence of his refusal or present evidence that created a material issue as to his ability to understand English. 3. School Principal can search vehicle on school grounds. State v. Best 201 NJ 100 (2010) A school administrator need only satisfy the lesser reasonable grounds standard rather than the probable cause standard to search a student’s vehicle parked on school property. 4. First Amendment voids conviction for dog fight video. US v. 1
Stevens 130 S. Ct. 1577 (2010) The Third Circuit's reversal of defendant's conviction under 18 U.S.C. section 48 for selling videos depicting dog fighting is affirmed where section 48 was substantially overbroad, and therefore invalid under the First Amendment, because section 48 explicitly regulated expression based on content and was thus presumptively invalid. 5. Defense counsel must advise criminal of deportation consequences. Padilla v. Kentucky 130 S. Ct. 1473 (2010) Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to drugdistribution charges in Kentucky. In post conviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice The US Supreme Court held because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. 6. Passengers can be ordered out if belief of danger. State v. Mai __ NJ ___ (2010) (A9809) The officers presented sufficient facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to exit the car. Those same circumstances authorize a police officer to open a vehicle door as part of ordering a passenger to exit. Thus, the seizure of the weapon was proper under the plain view doctrine, and the seizure of the holster and loaded magazine from the passenger was lawful as the fruits of a proper search incident to an arrest. 7. Supreme Court affirming constitutionality of Domestic Violence Act. Crespo v. Crespo 201 NJ 207 (2010) 2
The Prevention of Domestic Violence Act is constitutional. Judgment of the Appellate Division is affirmed substantially for the reasons expressed in the thorough opinion of Judge Fisher. Note – Judge Fisher wrote that discovery can be ordered by Trial Judge. 8. Police cannot search home without warrant. State v. Jefferson 413 NJ Super. 344 (App. Div. 2010) (1) In the absence of a warrant or a recognized exception from the Fourth Amendment's warrant requirement, the police could not lawfully enter defendant's home to conduct a Terry type detention and investigation of defendant. (2) A police officer's wedging herself in the doorway to prevent defendant from closing his front door was entry into the home. (3) The police failed to show either "hot pursuit" exigent circumstances or a community caretaking exception from the warrant requirement. (4) Although the police entry was unlawful, defendant had no right to resist physically, and the search of his person incident to arrest was lawful. (5) Consent to search defendant's apartment, given by defendant's wife, was tainted by the unconstitutional police conduct and was not shown to be voluntary. 9. PTI dismissal does not automatically permit civil suit. Bustamante v. Borough of Paramus 413 NJ Super. 276 (App. Div. 2010) Plaintiff's complaint alleging violations of 42 U.S.C.A. §1983, and common law assault and battery, was dismissed pursuant to Rule 4:62(e). Plaintiff had been indicted for resisting arrest and aggravated assault upon two of defendant police officers. After pleading guilty to resisting, plaintiff entered PTI and all charges against him were dismissed. Defendants argued that plaintiff's civil complaint was barred by the "unfavorable result" of his guilty plea and entry into PTI, relying upon the holding in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005). The trial judge agreed and dismissed the complaint with prejudice. The Appellate Division concluded that plaintiff's civil claims are barred by the disposition of his criminal charges only if a potential verdict in the civil case was inconsistent with the 3
underlying criminal charges. Because plaintiff alleged that the officers continued to assault him after he was in custody, his claims were not barred as a matter of law, and should not have been dismissed pursuant to Rule 4:62(e). 10. Assignment Judge can designate other Municipal Court Judges to sign a warrant. State v. BroomSmith 201 NJ 229 (2010) The Court affirms the Appellate Division’s determination that N.J.S.A. 2B:126 and Rule 1:123, which address the designation of judges, were broad enough to authorize the Berkeley Township municipal judge to issue the search warrant for defendant’s house in Dover Township under the circumstances presented in this case. 11. In Sussex, no SLAP on DWS based on DWI. State v. White ____ NJ Super. ______ (Law Div. 2010) Sussex County, Docket No. 1904BT 033744 Decided on January 26, 2010 The term of imprisonment set forth in N.J.S.A. 39:340(f)(2) for a person whose license has been suspended for drunk driving may not be served in a Sheriff’s Labor Assistance Program or other noncustodial program. Source: 200 N.J.L.J. 298 12. Defendant must invoke right to remain silent. Berghuis v. Thompkins 130 S. Ct. 2250 (2010) Defendant Thompkins' silence during the interrogation did not invoke his right to remain silent. A suspect's Miranda right to counsel must be invoked "unambiguously." Davis v. United States, 512 U.S. 452, 459. If the accused makes an "ambiguous or equivocal" statement or no statement, the police are not required to end the interrogation, ibid., or ask questions to clarify the accused's intent, id., at 461462. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory selfincrimination by requiring an interrogation to cease when either right is invoked. The unambiguous invocation requirement results in an objective inquiry that 4
"avoid[s] difficulties of proof and ... provide[s] guidance to officers" on how to proceed in the face of ambiguity. Davis, supra, at 458459. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither. INDEX 1. Error by police dispatcher in invalid arrest warrant requires suppression of evidence under NJ Constitution. State v. Handy. 2. Korean speaking not defense to refusal and defense should file suppression motion. State v Kim. 3. School Principal can search vehicle on school grounds. State v. Best. 4. First Amendment voids conviction for dog fight video. US v. Stevens. 5. Defense counsel must advise criminal of deportation consequences. Padilla v. Kentucky. 6. Passengers can be ordered out if belief of danger. State v. Mai. 7. Supreme Court affirming constitutionality of Domestic Violence Act. Crespo v. Crespo. 8. Police cannot search home without warrant. State v. Jefferson. 9. PTI dismissal does not automatically permit civil suit. Bustamante v. Borough of Paramus. 10. Assignment Judge can designate other Municipal Court Judges to sign a warrant. State v. BroomSmith. 11. In Sussex, no SLAP on DWS based on DWI. State v. White 12. Defendant must invoke right to remain silent. Berghuis v. Thompkins . Editorial Assistance provided by Associate Editor Louis Incatasciato, a 2L at Brooklyn Law School. Mr. Incatasciato is a Law Clerk at the Law Office of Kenneth Vercammen and Associates.
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