October 23, 2016

Third Party did not have authority to consent to search of bedroom State v. Cushing

Third Party did not have authority to consent to search of bedroom State v. Cushing 226 NJ 187 (2016)  

The record contains ample evidence to support the Appellate Division’s conclusion that Betty Cushing did not have actual authority to consent to the search of defendant’s room.
Betty could not have conferred through any power of attorney an authority that she did not possess herself.

In addition, it was not objectively reasonable for Officer Ziarnowski to rely on an apparent authority by Lisa Mylroie as the basis for valid third-party consent to his initial search of defendant’s bedroom. 

Police stop of car for high beam which did not affect traffic not proper and evidence suppressed State v. Scriven (226 NJ 20 (2016)

Police stop of car for high beam which did not affect traffic not proper and evidence suppressed State v. Scriven (226 NJ 20 (2016) 

Decided July 20, 2016
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers the circumstances under which the high-beam statute, N.J.S.A. 39:3-60, justifies a police stop of a vehicle.
On November 3, 2013, at approximately 3:00 a.m., Essex County Sheriff’s Officer David Cohen and his partner, Officer Eric Overheely, observed an unoccupied vehicle “with a fictitious temp tag” located on the left side of Adams Street in the City of Newark. Adams is a one-way street, which runs parallel to Independence Park and forms a “T” intersection with New York Avenue. Traffic flowing on New York Avenue toward the park must turn left onto Adams Street. Officer Cohen double-parked his patrol car immediately behind the unoccupied vehicle to investigate. He kept his headlights on but did not activate his overhead lights. After determining that the vehicle was unregistered, he called for a tow truck.
While waiting on foot for the tow truck to arrive, Officer Cohen observed a vehicle on New York Avenue approaching from about a quarter-mile away. The vehicle was traveling with its high beams on at a normal speed in this well-lit residential area. The vehicle obeyed the stop sign at the intersection of New York Avenue and Adams Street. Using the strobe light attachment on his flashlight, Officer Cohen signaled to the driver to pull over, and the driver did so, turning left onto Adams street. Officer Cohen intended to educate the driver on the proper use of high beams. In the officer’s experience, stolen cars are often driven with high beams, and the blinding light takes away his tactical advantage to see inside a car and know whether guns are pointed at him.
As Officer Cohen approached the driver’s side of the vehicle, he did not give the driver a warning to turn off her high beams, but instead instructed her to produce her license, registration, and insurance cards. With the driver’s side window down, Officer Cohen could smell burnt marijuana. He then walked around the vehicle, asked defendant, the front passenger, to roll down the window, and detected a stronger odor of burnt marijuana. Officer Cohen asked defendant and the rear passenger whether they had any “CDS” (controlled dangerous substance) on them, and both replied, “No.” While engaged in this exchange, Officer Cohen noticed inside the vehicle a hollowed-out cigar, which, from his experience and training, he knew was used as a receptacle for marijuana. Based on this observation, Officer Cohen told defendant to step out of the car. In response, defendant indicated that he had a gun under his jacket. The officer ordered defendant to keep his hands up while he retrieved the weapon. Defendant was placed under arrest, and the driver was later issued a ticket for a violation of the high-beam statute.
         Defendant was charged with unlawful possession of a .40 caliber handgun, receiving stolen property (the handgun), possession of hollow-nose bullets, and possession of a large-capacity magazine. Defendant filed a motion to suppress the handgun, the bullets, and the magazine on the ground that the police did not have a constitutionally permissible basis for stopping the car in which he was a passenger.  
         The court granted the motion because the automobile stop violated the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution. The court observed that the high-beam statute presupposes that the offending driver’s high beams are on when his vehicle approaches an oncoming vehicle. Here, Officer Cohen testified without equivocation that he did not observe any other vehicle traveling in the opposite direction toward defendant’s vehicle. Therefore, the court reasoned that, in the absence of a violation of the high-beam statute, Officer Cohen did not have a reasonable and articulable suspicion to justify a motor-vehicle stop. The court also concluded that the stop could not be justified based on the community-caretaking exception to the warrant requirement because the operation of the vehicle did not suggest that the driver was impaired or in need of police assistance.
         The Appellate Division granted the State’s motion for leave to appeal and, in an unpublished opinion, affirmed the trial court’s suppression order. Like the trial court, the appellate panel found that Officer Cohen did not have an objectively reasonable basis to believe that the operator of the subject car violated the high-beam statute because there were no oncoming vehicles approaching it. In light of the unambiguous language of the statute, the panel rejected the argument that Officer Cohen made a good faith mistake of law that allowed for the denial of the suppression motion. The panel also asserted that the community-caretaking doctrine did not apply because the record contains no proof that operation of the vehicle otherwise presented a traffic safety hazard or endangered the safety and welfare of defendant, the officer, or others on the road at the time. The Court granted the State’s motion for leave to appeal. 223 N.J. 551 (2015).
       HELD: The trial court and Appellate Division properly concluded that the motor-vehicle stop violated the Federal and State Constitutions. The language of the high-beam statute, N.J.S.A. 39:3-60, is unambiguous; drivers are required to dim their high beams only when approaching an oncoming vehicle. Neither a car parked on a perpendicular street nor an on-foot police officer count as an oncoming vehicle. The judgment of the Appellate Division upholding the trial court’s suppression of the evidence is affirmed.
         1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution provide that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. A motor-vehicle stop by the police constitutes a seizure of persons within the meaning of those provisions. Under both provisions, a police officer must have a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense to justify a stop. The heart of this constitutional analysis is whether the motor-vehicle stop was unreasonable, recognizing that raw, inchoate suspicion grounded in speculation cannot be the basis for a valid stop. (pp. 12-13).
         2. The State argues that the driver of the car in which defendant was traveling was violating the high-beam statute, thus justifying the motor-vehicle stop. The language of the high-beam statute requires a driver to dim his or her vehicle’s high beams when approaching an oncoming vehicle. The plain language of a statute is the best indicator of its meaning. The word “oncoming” is consistently defined as “coming nearer,” “nearing,” “approaching,” and “moving forward upon one.” An “oncoming vehicle” and “oncoming driver” cannot mean an unoccupied vehicle, parked on a perpendicular roadway, whose driver and passenger are standing in the street, even if the unoccupied vehicle’s motor is running and its headlights are on. Accordingly, the driver of the subject car was not in violation of the high-beam statute. The statute is unambiguous in its language and meaning to both the public and the police. Officer Cohen, who was on foot waiting for a tow truck, was not an “oncoming vehicle” or “oncoming driver” to the car approaching him from New York Avenue. Further, because Officer Cohen did not have a reasonable and articulable suspicion to believe that the subject car was operating in violation of the statute, the Court need not address the issue dealt with in Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014). In Heien, the United States Supreme Court held that, under the Fourth Amendment, the requisite suspicion necessary for the police to make a stop for a motor-vehicle violation may be based on an objectively reasonable mistake of law. Here, however, because Officer Cohen’s mistake of law was not objectively reasonable, Heien is inapplicable. (pp. 13-19)
         3. The State alternatively argues that Officer Cohen had a justifiable basis for stopping the subject car under the community-caretaking exception to the warrant requirement of the Fourth Amendment and Article I, Paragraph 7 of our State Constitution. The community-caretaking doctrine recognizes that police officers provide a wide range of social services outside of their traditional law enforcement and criminal investigatory roles. Police officers who have an objectively reasonable basis to believe that a driver may be impaired or suffering a medical emergency may stop the vehicle for the purpose of making a welfare check and rendering aid, if necessary. The police do not have to wait until harm is caused to the driver or a pedestrian or other motorist before acting. The evidence here – according to the trial court – did not suggest that the driver of the car was impaired or that the vehicle had a problem.
         A police officer conducting an investigation on the street can ask and even instruct a driver to dim high beams if the brightness of the lights is obstructing or impairing the officer’s ability to perform certain tasks. Here, however, Officer Cohen did not signal to the driver to dim her high beams because they were interfering with his mission, which was waiting for a tow truck to take away an unregistered vehicle. Rather, he effectuated a motor-vehicle stop under the objectively unreasonable belief that the driver was in violation of the high-beam statute. The motor-vehicle stop was not justified. The subsequent seizure of the handgun, hollow-nose bullets, and large-capacity magazine were the fruits of a violation of the Fourth Amendment and its state constitutional counterpart. The court properly suppressed the evidence.
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE ALBIN’S opinion. JUDGE CUFF (temporarily assigned) did not participate.


Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop State v. Stein

Prosecutor must provide videotape and audiotape plus names of officers from other towns involved in stop
State v. Stein 225 NJ 582 (2016)
SUPREME COURT OF NEW JERSEY
A-26 September Term 2014
074466

In this appeal from defendant’s conviction for driving while intoxicated (DWI) and careless driving, the Court considers the obligations of a municipal prosecutor under Rule 7:7-7(b), which governs discovery in municipal court proceedings.
Defendant Robert Stein was charged with DWI and careless driving after a motor vehicle accident in Wayne Township. The responding officers observed that defendant’s eyes were bloodshot and watery, his speech was slurred, his breath smelled of alcohol, and, as he walked, he swayed and grasped for support. Defendant also failed the field sobriety tests. Defendant claimed that, while performing the sobriety tests, he was suffering the effects of the crash of his vehicle and deployment of the air bags, which hit him squarely in the face. The two breath samples that defendant gave during a breathalyzer test revealed blood alcohol concentrations of 0.17 and 0.18 percent.
In pretrial discovery, defendant requested the names of the police officers who responded to the scene, including those from a neighboring township. The municipal prosecutor did not provide the names of the neighboring township’s officers, and defendant did not raise the issue with the municipal court. Defendant also requested videotapes which may have recorded his appearance, behavior, and motor skills at the accident scene and police headquarters. The municipal prosecutor repeatedly stated, at a pretrial hearing and trial, that videotapes did not exist. Defendant disputed that contention, and continued to request the tapes. The record is unclear on whether videotapes existed when defendant requested them because that issue was neither presented to, nor determined by, the municipal court.
The municipal court found defendant guilty of DWI and careless driving. The court based its DWI finding on the breathalyzer readings and the officers’ observations of defendant. The court sentenced defendant, as a third-time DWI offender, to incarceration for a term of 180 days in the county jail and loss of his license for a period of ten years. After a trial de novo on the record, the Law Division also convicted defendant of DWI and careless driving, based on the breathalyzer readings and, separately, on observational evidence. The court imposed the same sentence as did the municipal court. Additionally, the Law Division ruled that the municipal prosecutor was not required to provide discovery of the names of the neighboring police officers or the videotapes that defendant requested. The Appellate Division affirmed the motor-vehicle convictions and the Law Division’s discovery rulings. This Court granted limited certification. 220 N.J. 97 (2014).
H_E_L_D_:_ _Under Rule 7:7-7(b), the municipal prosecutor was required to provide defendant with the names of the police officers from the adjacent jurisdiction who responded to the accident scene. Because, when the prosecutor failed to provide the information, defendant did not raise this issue before the municipal court, or seek relief under the Rule, the issue has been waived. The prosecutor was also required to provide the videotapes that defendant requested, if they existed, since such information was clearly relevant to a DWI defense. Because the Court cannot determine from the record whether any videotapes exist, the matter is remanded to the Law Division for further proceedings on this issue.
1. The resolution by the trial court of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion. On appeal, a court need not defer to a discovery order that is based on a mistaken understanding of the applicable law. In reviewing the meaning of a court rule, this Court owes no deference to the interpretations of the trial court and the Appellate Division, unless they are persuasive in their reasoning.   

2. The discovery rules governing the municipal court and the Criminal Part of the Law Division are nearly identical, and both mandate the disclosure of the same categories of information. Broad discovery and the open-file approach apply in criminal cases to ensure fair and just trials. In light of the similarity between criminal and municipal court cases, the procedural protections afforded, and their discovery rules, the liberal approach to discovery in criminal cases is applicable in municipal court cases. Rule 7:7-7(b) provides that a defendant has a right to discovery of all relevant material in a municipal court case. The Rule sets forth eleven specific categories of information that a defendant is entitled to receive, on written request to the municipal prosecutor.   
3. Under Rule 7:7-7(b)(7), if the municipal prosecutor knows that police officers from an adjoining jurisdiction have relevant information pertaining to a DWI case, their names and addresses must be disclosed to the defendant. The Rule does not distinguish between individuals with relevant information who are located within the municipality having jurisdiction over the charges against a defendant, and those located outside the jurisdiction.   
4. Under Rule 7:7-7(b)(6), a municipal prosecutor is required to provide a defendant, upon his request, with relevant documentary evidence, including video and sound recordings and images if it is within the State’s custody or control. A video or sound recording, such as a recording from a patrol car’s dashboard camera, or a video recording of a breathalyzer test, or defendant’s appearance, behavior and motor skills, including his performance of psychomotor physical or sobriety tests, is relevant to prove or disprove a DWI defendant’s intoxication. The State may seek the redaction of a video recording, or an in camera review, if necessary, under appropriate circumstances and consistent with a defendant’s fair-trial rights. To ensure the availability of such evidence, a defendant should give written notice to the municipal prosecutor to preserve pertinent videotapes.   
5. In this case, the municipal prosecutor had an obligation under Rule 7:7-7(b)(7) to provide defendant with the names of the police officers from the adjoining town of Pequannock who had responded to the accident scene, based on the two discovery letters that defense counsel sent to the municipal prosecutor. However, defendant did not seek to compel the prosecutor to comply with the State’s disclosure obligations, as authorized by Rule 7:7-7(j). Because defendant did not raise or preserve the issue in municipal court, the Court declines to consider it on appeal.   
6. The two discovery letters that defendant’s counsel sent to the municipal prosecutor requesting videotapes, or recordings made by a video-equipped police vehicle, of the accident scene and of defendant’s appearance and performance of the sobriety tests, unquestionably sought relevant evidence. This Court disagrees with the determination of the courts below, and holds that the videotapes must be disclosed under Rule 7:7-7(b)(6), provided that such recordings existed at the time defendant sought the information. Such tapes would provide evidence relevant to defendant’s sobriety and the officers’ conclusion that defendant was under the influence.   
7. The Court remands this matter to the Law Division for further proceedings to determine whether any relevant video recordings ever existed, or were available when defendant made the discovery requests. Depending on the court’s conclusions on remand regarding whether the tapes existed, the Law Division has wide latitude to fashion an appropriate remedy pursuant to Rule 7:7-7(j).   
The judgment of the Appellate Division is A_F_F_I_R_M_E_D_ _I_N_ _P_A_R_T_ _and R_E_V_E_R_S_E_D_ _I_N_ _P_A_R_T_, and the matter is R_E_M_A_N_D_E_D_ _to the Law Division for further proceedings consistent with the Court’s opinion.


Out of state DWI counts for criminal driving while suspended. State v. Luzhak

Out of state DWI counts for criminal driving while suspended. State v. Luzhak  445 NJ Super. 241 (App.Div. 2016)
    In this case of first impression, the court interpreted N.J.S.A. 2C:40-26(b), which provides that it is a crime of the fourth degree to operate a motor vehicle during a period of license suspension if the license was suspended for a second violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:4-50.4(a), as including out- of-state convictions for DWI.

The court reached its determination after consideration of analogous statutes relating to interstate recognition of motor vehicle violations and the use of equivalent out-of-state convictions as prior offenses for enhanced DWI sentencing. The court also considered the legislative policy behind the statute's enactment. (Kenneth Vercammen handled this case).