State v. Hand

Yesterday in State v Hand, approved for publication, the App Div affirmed the dismissal on double jeopardy grounds of a DWI that was downgraded after a plea to the accompanying indictable reckless endangerment charge (risk of widespread injury). The factual basis at the county was based on this def's 4-50 and driving on a playing field. The court affirmed the use of the "same evidence" test. The court indicted that had the factual basis not included the evidence of driving while intoxicated, the result in this case would not have been dismissal of the 4-50.

With more and more DWIs being sent to the county for 4th and 3rd degree Assault by Auto (which this case was not because there was no actual injury) and the new indictable 3-40 kicking in now, this issue will arise more often if county prosecutor's are not careful with how the accompanying DWI is disposed. The common method is to require a plea to the DWI and merge the offense with the indictable for sentencing.

State of NJ v. Mai

Argued Oct. 13, 2009

Decided May 6, 2010.

Background: Following a conditional guilty plea after denial of motion to suppress, defendant was convicted in the Superior Court, Law Division, Hudson County, of third-degree unlawful possession of a handgun. Defendant appealed. The Superior Court, Appellate Division, 2009 WL 276716, reversed and remanded. State petitioned for certification.

Holdings: The Supreme Court, Rivera-Soto, J., held that:

(1) police officer making traffic stop had authority to open van's passenger-side sliding door as part of ordering defendant, a passenger, to exit the vehicle;

(2) seizure of loaded gun from floor of van was proper under plain view doctrine;

(3) plain view discovery of gun on floor of van provided sufficient probable cause to arrest defendant; and

(4) loaded ammunition magazine and gun holster were properly seized as fruits of proper search incident to arrest.

Judgment of Appellate Division reversed; judgment of Law Division reinstated.

State of NJ v. Davila

Argued Feb. 2, 2010.

Decided July 14, 2010.

Background: Defendant was convicted on his guilty plea in the Superior Court, Law Division, Essex County, of two counts of felony murder and one count of conspiracy to commit robbery. Defendant appealed. The Superior Court, Appellate Division, 2009 WL 1010931, affirmed. Defendant petitioned for certification.

Holdings: The Supreme Court, LaVecchia, J., held that:

(1) trial court's conclusion that occupant consented to police officers' entry into apartment rested on a credibility determination for which there was adequate, substantial, and credible support in the record;

(2) as a matter of first impression, a protective sweep conducted on private property is not per se invalid merely because it does not occur incident to an arrest;

(3) a protective sweep may occur when law enforcement officers are lawfully within the private premises for a legitimate purpose and the officers on the scene have a reasonable articulable suspicion that the area to be swept harbors an individual posing a danger; and

(4) remand was required.

Judgment of Appellate Division reversed; matter remanded.

Another Opinion

State v. Dunlap, 185 N.J. 543 (2006)

In addition, we reject the State's argument that “it would have been unduly burdensome and unreasonably restrictive to require the police to post a guard and repair to the courthouse for a warrant,” There were at least ten officers present on the evening in question and even assuming that some were needed for other duties in connection with defendant's arrest and the on-going investigation, the State did not establish that an insufficient number **1283 would have been left to guard the car. To say that the late hour made access to a judge difficult or unpracticable, is to ignore the procedures in place for emergent duty judges in every vicinage and the existence, since 1984, of the telephonic warrant procedure. R. 3:5-3(b). Indeed, it is not without significance that the investigators here had time to call the prosecutor's office at about 10:00 pm and obtain verbal authorization for the consensual recording of defendant's conversation with Tiaa.

One final note. Nothing in this opinion should be viewed as a retrenchment from the well-established principles governing the automobile exception to the warrant requirement. The standards remain the same: probable cause and exigent circumstances, each of which to be determined on a case-by-case basis. Here, the unique facts, particularly the presence of ten officers, fully justified the Appellate Division's conclusion that exigency was absent. Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus. Police safety and the preservation of evidence remain the preeminent determinants of exigency.

Appellate Opinion

State v. Cooke, 63 N.J. 657 (2000)

We emphasize that there is a constitutional preference for a warrant, issued by a neutral judicial officer, supported by probable cause. “The cautionary procedure of procuring a warrant ensures that there is a reasonable basis for the search and that the police intrusion will be reasonably confined in scope. The automobile exception applies only in cases in which probable cause and exigent circumstances are evident, making it impracticable for the police to obtain a warrant.