January 29, 2012

Police use of GPS device on car violates 4th Amendment United State v Jones

Police use of GPS device on car violates 4th Amendment

United State v Jones __ US ___

January 23, 2012 No. 10–1259.

The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.

(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165; Soldal v. Cook County, 506 U. S. 56. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position.

STATE OF NEW JERSEY VS. S.K. A-1488-10T1

STATE OF NEW JERSEY VS. S.K.

A-1488-10T1

Defendant's conviction for violating a domestic violence

restraining order is vacated and the complaint dismissed because

the provision of the order prohibiting defendant from "any other

place where plaintiff is located" is overly broad and not

authorized by the Prevention of Domestic Violence Act, and also

because defendant did not provide a sufficient factual basis for

his guilty plea and conviction.

IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORDS OF MARINO LOBASSO A-3577-10T4

IN THE MATTER OF THE APPLICATION FOR EXPUNGEMENT OF THE CRIMINAL RECORDS OF MARINO LOBASSO

A-3577-10T4

The court affirmed an order denying expungement of a third-degree eluding conviction after five years. Appellant relied on L. 2009, c. 188, § 1, codified at N.J.S.A. 2C:52-2a(2), which reduced the waiting period for expunging certain criminal convictions from ten to five years provided the court finds "in its discretion that expungement is in the public interest, giving due consideration to the nature of the offense, and the applicant's character and conduct since conviction." Construing the new law, we concluded that expungement before ten years is reserved for compelling but not necessarily rare or unusual cases. We held that a trial court should weigh case-specific facts regarding the nature of the offense, the offender's character and conduct, and other relevant factors. Related to an "offender's character and conduct," a trial court may consider facts of an arrest that did not result in conviction, if supported by cognizable evidence. Regarding the "nature of the offense," a trial court may consider the grade of the offense, and related circumstances. Additionally, a trial court may consider: whether the petitioner engaged in activities post-conviction to limit the risk of re-offending; the petitioner's character and conduct before conviction; and the conviction record's impact on the petitioner's "reentry" efforts. 01-10-12

State v. Roy Friedman (066332; A-18/19-10)

State v. Roy Friedman (066332; A-18/19-10)

When a defendant has been sentenced to consecutive custodial terms under NERA, the periods of parole supervision that follow must be served consecutively. There is no need to determine whether Hess applies here because the trial court recognized its inherentsentencing authority, engaged in its own Yarbough analysis, and did not abuse its discretion in concluding that it was appropriate to impose consecutive sentences for three separate assaults defendant admitted committing upon his wife during three separate periods of time. 1-24-12

State v. James J. Mauti (067006; A-48-10)

State v. James J. Mauti (067006; A-48-10)

The wife of defendant James J. Mauti was entitled to exercise the spousal privilege of refusing to testify in his criminal trial because there was no conflict between her exercise of the privilege and a constitutional right, and she did not waive her right to exercise the privilege. 1-23-12

Right to counsel not established by desire to speak with mother State v. Demetrius Diaz-Bridges

Right to counsel not established by desire to speak with mother

State v. Demetrius Diaz-Bridges (067065; A-49/50-10)

Because neither defendant’s statements about his

desire to speak with his mother nor any of his other

statements were assertions of his constitutionallyprotected

right to silence, the suppression of any

portion of his confession was in error. 1-12-12

STATE OF NEW JERSEY VS. DAVID BAYLOR A-0054-09T1

STATE OF NEW JERSEY VS. DAVID BAYLOR

A-0054-09T1

The life sentences without parole imposed in this matter do

not violate the Ex Post Facto Clauses of the Federal and State

Constitutions because defendant was convicted of murders that he

committed in 2005, and the murder statute in effect at that time

required the imposition of life sentences without parole where,

as here, the jury found at least one statutory aggravating

factor. 12-29-11

STATE OF NEW JERSEY VS. SHAFFONA MORGAN A-4468-08T4

STATE OF NEW JERSEY VS. SHAFFONA MORGAN

A-4468-08T4

In this appeal, we hold that a series of ex parte

communications between the trial judge and the jury did not

compromise the integrity of the jury deliberations requiring the

reversal of defendant's conviction. We also hold that, under

the circumstances of this case, the court did not violate

defendant's right to a fair trial or impugn the integrity of the

jury's deliberative process by permitting the jurors to take

copies of sections of the charge with them over a weekend. We

nevertheless caution trial courts against engaging in such a

practice without expressed authority and guidance from the

Supreme Court. We refer this issue to the Civil and Criminal

Practice Committees to develop recommendations to the Supreme

Court to either explicitly forbid the practice, or permit it

under specific guidelines.

12-29-11

STATE OF NEW JERSEY VS. S.K. A-1488-10T1

STATE OF NEW JERSEY VS. S.K.

A-1488-10T1

Defendant's conviction for violating a domestic violence

restraining order is vacated and the complaint dismissed because

the provision of the order prohibiting defendant from "any other

place where plaintiff is located" is overly broad and not

authorized by the Prevention of Domestic Violence Act, and also

because defendant did not provide a sufficient factual basis for

his guilty plea and conviction.

January 8, 2012

STATE OF NEW JERSEY VS. THOMAS W. BERNOKEITS, JR. A-3150-10T4

STATE OF NEW JERSEY VS. THOMAS W. BERNOKEITS, JR. A-3150-10T4

We hold that standard, roadside field sobriety testing does not require the police to have probable cause to arrest or to search, but rather may be undertaken on the basis of a reasonable articulable suspicion alone that defendant was driving while intoxicated. 12-22-11

positive drug result not always neglect for DFYS V.T., G.G. AND R.S.

positive drug result not always neglect for DFYS V.T., G.G. AND R.S.

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES.           V.T., G.G. AND R.S. 

A-2571-10T4

     R.S. appeals the finding that he neglected his eleven-year- old daughter by testing positive for drugs at two supervised visits.  The Division of Youth and Family Services acknowledges that he behaved properly at both visits.  We hold that under these circumstances, the positive test results in themselves are not sufficient evidence of abuse or neglect.  12-21-11  

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF NEW JERSEY VS. KENNETH S. PIZZO, JR. A-4384-09T3/A-4775-09T3

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF NEW JERSEY VS. KENNETH S. PIZZO, JR. A-4384-09T3/A-4775-09T3

STATE OF NEW JERSEY VS. NICOLE M. HOLLAND // STATE OF           NEW JERSEY VS. KENNETH S. PIZZO, JR. 
          A-4384-09T3/A-4775-09T3 
     We hold that sufficient credible evidence supports the remand court's findings that the Control Company digital thermometer is comparable in all material respects to the Ertco- Hart digital thermometer previously used during the Alcotest calibration process, and that the Control Company certificate is facially valid and satisfies the requirements as a foundational document as required by State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).  12-20-11  

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS A-5962-08T3

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS A-5962-08T3

CHARLES WILLIAMS VS. NEW JERSEY DEPARTMENT OF           CORRECTIONS 

A-5962-08T3

     An inmate at the Adult Diagnostic Treatment Center (ADTC) challenged the authority of the Commissioner of the Department of Corrections to transfer inmates to the ADTC who do not meet the qualifications for confinement at the ADTC set forth in the Sexual Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, more specifically the provisions of N.J.S.A. 2C:47-3.  We concluded that the very specific provisions of the SOA, as explored at length by the Supreme Court in In re Civil Commitment of W.X.C., 204 N.J. 179, 196-99 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011), significantly limit the Commissioner's otherwise broad discretion to assign inmates to available institutions under N.J.S.A. 30:4-91.2, and that only sex offenders who meet each of the three criteria set forth in the SOA can be confined at the ADTC.  Those criteria are: (1) the offender's conduct was characterized by a pattern of repetitive, compulsive behavior, (2) the offender is amenable to sex offender treatment, and (3) the offender is willing to participate in such treatment.  12-02-11 

State v. Reynold Regis (A-81-10; 066947)

State v. Reynold Regis (A-81-10; 066947)

N.J.S.A. 39:4-88(b) describes two separate and

independent offenses, one for a driver’s failure to

maintain a lane to the extent practicable and the

other for changing lanes without ascertaining the

safety of the lane change. 12-14-11

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR. A-2064-10T3

STATE OF NEW JERSEY VS. JOHN J. LAWLESS, JR. A-2064-10T3

Defendant pled guilty to aggravated manslaughter and

driving while intoxicated. After consuming a large amount of

beer, defendant fell asleep at the wheel of his car, crossed the

center line of the road and collided with an on-coming car,

killing the driver and causing serious injuries to the

passengers. Citing aggravating factors two (the gravity and

seriousness of the harm inflicted), three (the risk that

defendant will commit another offense), six (the extent of

defendant's prior criminal record), and nine (the need for

specific and general deterrence), the judge imposed a thirtyyear

term of imprisonment for the aggravated manslaughter

charge.

We held that the record did not support reliance on

aggravating factor two because defendant pled guilty to only one

charge involving one victim; therefore, the judge could not rely

on the injuries suffered by other victims of the collision. We

also held that the judge could not rely on multiple prior

driving while intoxicated convictions because these charges are

not considered crimes. We remanded for reconsideration of the

sentence in accordance with the aggravating factors supported by

the record. 12-07-11

John Rogers v. Cape May County Office of the Public Defender (A-63-10; 067048)

John Rogers v. Cape May County Office of the Public Defender (A-63-10; 067048)


Defendant was not “exonerated” until the indictment

was dismissed with prejudice on July 25, 2008, and his

claim was thus not barred by the one-year filing

limitation in N.J.S.A. 59:8-9. Nevertheless, because

the claim was filed ten days beyond the ninety-day

limit set forth in N.J.S.A. 59:8-8, further

proceedings are required to determine whether the

“extraordinary circumstances” standard in N.J.S.A.

59:8-9 was satisfied. 12-5-11

State v. Stanford Yough (A-67-10; 066950)

State v. Stanford Yough (A-67-10; 066950)


The trial court did not err in denying defendant

Stanford Yough’s motion for a mistrial after the

victim testified on direct and cross-examination that

he observed defendant more times than he had indicated

in his statement to the police. No errors occurred

during those exchanges that were clearly capable of

producing an unjust result. 11-30-11

STATE OF NEW JERSEY VS. JEFFREY S. ZEIKEL A-1495-10T4 11-09-11

STATE OF NEW JERSEY VS. JEFFREY S. ZEIKEL A-1495-10T4


Defendant was correctly sentenced as a third-time DWI

offender based on a prior conviction in New Jersey for DWI and

two prior convictions in New York State for driving while

ability impaired. The New York convictions were "of a

substantially similar nature" as a DWI violation in New Jersey.

See N.J.S.A. 39:4-50(a)(3). Defendant's constitutional,

statutory, and factual challenges to the consideration of his

1980s New York convictions are rejected.

January 1, 2012

Kenneth Vercammen is a regular author in Law Enforcement Publications

Kenneth Vercammen is a regular author in Law Enforcement Publications including:

“Wills & Estate Planning For Police Officers The New Jersey Police Chief Magazine May 2011

Top 25 Cases Affecting Law Enforcement 2011 The New Jersey Police Chief Magazine April 2011

”Prosecuting the Speeding Ticket” The New Jersey Police Chief Magazine July/ August 2010

“Prosecuting Driving While Suspended Cases” The New Jersey Police Chief January 2010

“Top Municipal Court and Criminal Cases 2009” The Middlesex Advocate February 2010

Prosecuting the Driving Without Insurance Violation 39:6B-2” The New Jersey Police Chief November, 2009

Major Municipal Court and Criminal Cases in New Jersey” The New Jersey Police Chief July 2009