Stop and Frisk

State v. Privott, 203 N.J. 16 (2010)

In this case, the Supreme Court of New Jersey made three essential holdings. The Court ruled that: 1) the police officer had specific and particularized reasons for conducting an investigatory stop of the defendant, 2) the totality of the circumstances justified the officer’s decision to frisk the defendant, and 3) the officer’s conduct in lifting up the defendant’s shirt to check for weapons in the waistband of defendant’s pants exceeded the scope of the type of intrusion a Terry stop allows for.

The 5-2 decision was authored by Justice Wallace and it was joined by Chief Justice Rabner, Justice Long, Justice LaVecchia, and Justice Hoens. However, Justice Albin and Justice Rivera-Soto dissented.

The most relevant language seems to be:

“... the police officer lifted defendant’s tee-shirt to expose defendant’s stomach, and in doing so, observed a plastic bag with suspected drugs in the waistband of defendant’s pants. That maneuver exceeded the scope of the pat-down search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned.” Id. at 31 (emphasis added).

Unpaid Child Support

In 1995, NJ Legislation (Chapter 334) attempted to increase the collection of unpaid child support by requiring plaintiffs or their attorneys in all civil lawsuit actions to do one of the following:

• File a certificate with the Probation Department identifying the plaintiff, requiring that staff in the Probation Department search that name in the ACSES computer system, confirming whether the plaintiff was a child support judgment debtor. If no response was received from the Probation Department within 30 days, the proceeds could be distributed.
• Conduct a child support judgment search through a private abstract company.

Major implementation problems immediately ensued. Due to 500,000+ annual suit filings, Chapter 334 promptly overwhelmed the NJ court infrastructure since no dollar threshold was specified, certificates were consistently filed with the wrong office of the court, lawsuit proceeds were unnecessarily delayed to the 95%+ of lawsuit plaintiffs who were not child support judgment debtors, resulting in generally poor compliance with the existing statute.

Work began immediately on amending Chapter 334, resulting in a P.L. 2000, c. 81, which both greatly expands the scope of the priority lien process and simplifies the compliance requirements.

Federal welfare reform legislation (PRWORA) requires that all States intercept and seize lump sum payments from judgments, settlements and worker's compensation, by imposing priority liens on those payments to pay off unpaid child support judgments. P.L. 2000, c. 81 is New Jersey's response to the Federal mandate.

State v. J.A.C.

Background:

In a criminal sexual assault case, Defense Counsel attempted to introduce sexually explicit instant message (IM) conversations between a girl who was a minor and several adult males who were not charges with any offense or were related to the criminal case in any manner. Defense Counsel intention was to prove that the alleged victim, the girl, was fabricating her story, she had specific knowledge of sex acts from another event or events, and the IM’s reflected her sexual activity. (Obviously, for the jury to evaluate her credibility when they were to deliberate.) A forensic analysis of the girl’s computer revealed sexually explicit IMs between her and an adult male. A trial judge found that the IMs constituted “sexual conduct,” as defined by N.J.S.A. 2C:14-7f (New Jersey’s Rape Shield Law), and their prejudicial effect outweighed their probative value. However, based on the significant number of IM’s and the sexually explicit content the trial judge allowed the defendant to mention them in order to show that the victim may have fabricated her story “in order to deflect criticism or discipline for having engaged in such behavior (the sexually explicit IMs that is, not the allegations against JAC the defendant).”

Appellate Review:

On appeal, the Appellate Division ruled that the contents of the IMs were not relevant to the offense charged since they did not refer to or involve the defendant or bear any relation to a motive to fabricate. Nevertheless, the Appellate Division held that the existence of the IMs was relevant to show that the victim had a motive to fabricate the allegations. Although explicit IMs cannot be introduced to prove the sexual disposition of an alleged victim, this groundbreaking decision makes it possible to introduce them in order to establish motive for an alleged victim to lie in order to avoid punishment for this behavior from the mom or dad or paramour who is in the house in charge of discipline. In addition, the court;s same reasoning can be applied to cross examination issues an alleged victim’s lack of credibility without running afoul of New Jersey’s rape shield statute, N.J.S.A. 2C:14-7. The Appellate Division’s decision can be found here.

UPDATE - New Jersey Supreme Court Review:

The Appellate Division’s decision has been appealed and the New Jersey Supreme Court recently heard oral arguments in the case. The Court plans to rule solely on the limited issue of whether the contents of IMs sent by a minor victim to adult males are admissible. If the Court determines that they are, explicit IMs could become a powerful tool to defend against wrongful convictions and protect the constitutional rights of criminal defendants.

The key issue in this case will be the use of and existence of any IMs from one teen to another! Counsel must investigate these issues because the content will surely come into play in one way or another. IMs from one friend to another, and for that matter, texts, emails, web pages, tweets, that are memorialized FOREVER, are nothing more than a conversation between friends that has been preserved! While Teens used to talk on the phone; now with the number of IMs, text, emails, and tweets, reaching millions and millions per day, more often than not serious sensitive teen communications will probably be saved on a server somewhere that can be retrieved from trial in these case. More importantly, the content of those emails, text, IMs, tweets, and the like will make or break your defense at trial.

Summary of Fernandez v. Nationwide Mutual Fire Insurance

Facts:

On February 4, 2004, Sebastian Fernandez was critically injured in a car accident when the automobile he was driving was struck by a commercial vehicle. After winning an award at arbitration, Mr. Fernandez instituted an action for a declaratory judgment regarding his entitlement to the funds. Both he and Nationwide, his insurer, filed motions for summary judgment. The trial judge directed that the funds be paid to Fernandez. Nationwide appealed and the Appellate Division reversed. Eventually, the New Jersey Supreme Court agreed to hear the case.

Holding:

The New Jersey Supreme Court ruled, “The Appellate Division’s decision correctly held that the insurer of the responsible party, and not the injured victim’s insurer, was liable for the expense of PIP benefits for the victim.” Fernandez v. Nationwide Mut. Fire Ins. Co., 199 N.J. 591, 593 (2009). The Court noted that the statute regarding payment of personal injury protection (PIP) benefits, N.J.S.A. 39:6A-9.1, is remedial legislation that is given a liberal construction. In coming to its conclusion, the Court explained that requiring the tortfeasor’s PIP carrier, rather than the injured accident victim’s insurer, to be liable for the expense of PIP benefits advances stability in the insurance marketplace and does not produce an unjust result. The Court also noted that its result has been the controlling application of the No-Fault Law in New Jersey for more than a decade.

Legislative History of N.J.S.A. 39:6A-9.1:

The New Jersey Automobile Reparation Reform Act (“No Fault Act”) was enacted in order to address four major concerns: 1) reparation, 2) cost, 3) availability, and 4) judicial economy. According to the Commission Report, the reparation objective was viewed as the primary purpose of an automobile insurance system and was given priority in formulating the proposals that served as the basis for the PIP statute. Moreover, the failure of many automobile accident victims to receive adequate reimbursement for their injuries was considered a major deficiency in the tort liability system that existed prior to the institution of the no-fault law and an unwarranted hardship upon unfortunate victims. In short, N.J.S.A. 39:6A-9.1 was enacted to guard against these problems.

The Takeaway:

· A tortfeasor’s insurer is liable for the expense of PIP benefits, not the accident victim’s insurer.

State v. P.A.C.

In the recent case of State vs. P.A.C. New Jersey courts have explicitly held that “engag[ing] in three or more drug sales does not in and of itself make [one’s] conduct a ‘repetitive criminal activity.’” State v. P.A.C., ___N.J. Super. ___ (App. Div. 2011) and as a result the prosecutor’s denial of Defendant’s PTI application constitutes legal error that is tantamount to a patent and gross abuse of discretion. This is a huge development for individuals who (a) do not have a criminal record, (b) are charged with possession of CDS and or possession of CDS with intent to distribute as a result of small drug purchases in drug zones. This recent change inthe law is a substantial development which will aid defendants avoid prosecution and get into alternative recovery programs much more easily.

docket 14-2-3760 State v. Koch, App. Div.

Koch was convicted in Municipal Court of underage consumption of alcohol on private property.

The judge imposed a $250 fine, and $33 court costs. At a trial de novo in the Law Division, the court found Koch guilty of the same charge and imposed the same sanctions. The appellate panel reverses, concluding that the Law Division judge erred in excluding the videotape of a motor vehicle stop of Koch about an hour and a half after the arresting officer, Patrolman DeWitt, left the scene of a party. That videotape directly impeached DeWitt's testimony. It tended to raise a reasonable doubt about the credibility and accuracy of DeWitt's identification of Koch as one of the partygoers who consumed alcohol. Further, Koch has raised a valid Miranda issue. The partygoers who remained at the scene were detained for about 20 minutes. DeWitt's sniffing of their breath was clearly in a custodial setting. His actions were an implied question to Koch and others to indicate whether they had consumed alcoholic beverages. Koch was charged in a quasi-criminal matter, which resulted in the imposition of a penal consequence. Therefore, the statement attributed to Koch should have been suppressed for failure to give Miranda warnings.

Davis v. United States

In Davis v. United States (Docket No. 09–11328, Decided June 16, 2011), the United States Supreme Court held that searches conducted in objectively reasonable reliance on binding precedent are not subject to the exclusionary rule because suppression would do nothing to deter police misconduct and would come at a high cost to both the truth and the public safety.

In Davis, the question presented—whether new law should apply to the retroactive exclusion of evidence—arose as the result of a shift in Fourth Amendment jurisprudence on searches of automobiles incident to arrests of recent occupants. The Court, in United States v. Gant, adopted a new rule under which an automobile search incident to the occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.”

The search at issue in Davis, which was conducted after defendants had been secured in separate patrol cars, took place a full two years before the Court announced its new rule in Gant. At trial, defense counsel acknowledged that the officers’ search fully complied with then-existing precedent, but nonetheless moved to suppress to preserve the issue for appeal. Gant was decided while appeal was pending, and defendant renewed his motion to suppress because under the new law, the vehicle search incident to Davis’s arrest “violated [his] Fourth Amendment rights.” The Eleventh Circuit refused suppression, concluding that “penalizing the [arresting] officer” for following binding appellate precedent would do nothing to deter Fourth Amendment violations.

On certiorari, the Supreme Court reiterated that while the exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment violations,” courts must adequately account for the “substantial social costs” generated by the rule—i.e., the heavy toll exclusion exacts on both the judicial system and society at large. Thus, for exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. The more “deliberate,” “reckless,” or “grossly negligent” the police conduct, the more exclusion is warranted, and vice versa. This rationale forms the basis of the “good faith” exception to the warrant requirement, which holds that the exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on warrants, statutes, and judicial precedent later invalidated.

Because in this context, all agreed that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way, the Court held that the “absence of police culpability dooms Davis’s claim.” That is, in the absence of deliberate, reckless, or grossly negligent police conduct, or some “recurring or systemic negligence” on the part of law enforcement, exclusion yields no meaningful deterrence, and does not justify the price paid by the justice system and society. Ultimately, the Court determined that the crux of the analysis in such circumstances is officer culpability or “good faith,” and not retroactive application of laws. Finding that the officers acted in reasonable reliance on binding precedent, the Court declined to retroactively apply the exclusionary rule as modified in Gant, and upheld Davis’ conviction.

Arizona v. Gant

In Arizona v. Gant, 129 S. Ct. 1710 (2009), the United States Supreme Court held that where there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, the justifications for the search-incident-to-arrest exception to the warrant requirement—protecting arresting officers and safeguarding evidence of the offense of arrest that an arrestee might conceal or destroy—are absent, and the exception does not apply.

After defendant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police searched his car and discovered cocaine in the pocket of a jacket on the backseat. When asked at the suppression hearing why the search was conducted, police responded: “Because the law says we can do it.” The Arizona Supreme Court disagree, holding that because defendant could not have accessed his car to retrieve weapons or evidence at the time of the search, the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California, 395 U.S. 752 (1969), and applied to vehicle searches in New York v. Belton, 453 U.S. 454 (1981), did not justify the search, requiring exclusion.

On certiorari, the Supreme Court began by reiterating that the “search incident to lawful arrest” exception to the Fourth Amendment’s warrant requirement “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” In Chimel, the Court limited the scope of such searches to “the arrestee’s person and the area within his immediate control.” This limitation ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officer and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.

In Belton, the Court considered Chimel’s application to the automobile context, concluding 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. This holding was 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. On finding that this broad interpretation of Belton had converted the exception into an impermissible police entitlement, the Gant Court distinguished Belton, thereby narrowing its scope. Unlike Belton, which involved a single officer confronted with four unsecured arrestees, Gant involved five officers and only three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched defendant’s car. Because the circumstances in Gant met neither justification for the warrant exception—threat to officer safety or evidence—the Court deemed the search a constitutional violation, contrary to the established reading of Belton.

The Court held that Belton permits an officer to conduct a vehicle search only when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. Ultimately narrowing the permissible scope of searches incident to lawful arrest, the Court summarized: “Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis.

Walrond v. County of Somerset

In New Jersey, however, N.J.S.A. 34:15–36, defines “employee” as “synonymous with servant, and includes all natural persons, including officers of corporations, who perform service for an employer for financial consideration [.]” FN5 (emphasis added). Service performed in exchange “ ‘for financial consideration’ is a cardinal legal requirement in [workers'] compensation for the creation of the status of employer and employee.” Goff v. County of Union, 26 N.J. Misc. 135, 138, 57 A.2d 480 (Dept. Labor 1948). That services be rendered for “financial consideration” has been recognized as “the primary governing standard defining an *239 employee[.]” Kraivanger v. Radburn Assoc., 335 N.J.Super. 169, 172, 762 A.2d 222 (App.Div.2000); Gross v. Pellicane, 65 N.J.Super. 386, 395, 167 A.2d 838 (Cty.Ct.1961) (“a prerequisite to the existence of an employment status is that there be a financial consideration flowing between the employer and the employee.”).

FN5. Excluded from this definition are only “employees eligible under the federal ‘Longshore and Harbor Workers' Compensation Act,’ ” and “casual employments.” [9] Financial consideration, under the statute, need not be in the traditional form of a wage. Johnson v. The United States Life Ins. Co., 74 N.J.Super. 343, 349–50, 181 A.2d 380 (App.Div.1962). For instance, free board and lodging or a rent-free apartment have been held to constitute consideration given in return for services rendered. See Britten v. Berger, 18 N.J. Misc. 215, 12 A.2d 875 (Dept. Labor 1940); Simpson v. Vertty, 3 N.J. Misc. 9 (Dept. Labor 1925). In addition, benefits such as vocational instruction, training, and incidental equipment have also been deemed compensation. Heget v. Christ Hosp., 26 N.J. Misc. 189, 192, 58 A.2d 615 (Cty.Ct.1948) (finding that student nurse was employee of hospital even though she did not receive wages for her work). [10][11] Reimbursement or payment of expenses “could also be seen as a form of compensation when others who might be classified as ‘true volunteers' were not so compensated.” Kraivanger, supra, 335 N.J.Super. at 172, 762 A.2d 222.

In addition, “even where no specific salary or manner of payment is fixed, the law in a proper case may spell out an agreement implied in fact to pay for the reasonable value of the services rendered.” Johnson, supra, 74 N.J.Super. at 350, 181 A.2d 380. Notably, “employee status for workers' compensation purposes exists if any financial consideration at all passes.” Kraivanger, supra, 335 N.J.Super. at 172, 762 A.2d 222. In short, “financial consideration” includes anything of value to be received by the individual in return for his services, but not the hope of future favors. Hawksford v. Steinbacher Packing Co., 73 N.J.Super. 175, 180, 179 A.2d 181 (Cty.Ct.1962), aff'd, 80 N.J.Super. 129, 193 A.2d 163 (App.Div.), certif. denied, 41 N.J. 195, 195 A.2d 466 (1963). *240 [12] It is not necessary, to be considered an employee, to receive “financial consideration” directly from an employer. Rather, indirect compensation for services is sufficient to establish the employment relationship. Pickett v. Tryon Trucking Co., 214 N.J.Super. 76, 81, 518 A.2d 500 (App.Div.1986), certif. denied, **499107 N.J. 149, 526 A.2d 210 (1987). In Pickett, for example, consideration passed from Tryon Trucking to a third-party who, in turn, paid petitioner for his services rendered to Tryon, and therefore, Pickett was found to be an employee of Tryon. Ibid. [13][14] In contrast, however, volunteers who act out of civic or charitable motives with no expectation of payment are not employees. Cerniglia v. City of Passaic, 50 N.J.Super. 201, 208, 141 A.2d 558 (App.Div.1958). “It is clear that one who volunteers his [or her] services and neither receives nor expects to receive payment is not an employee for workers' compensation purposes.” Veit v. Courier Post Newspaper, 154 N.J.Super. 572, 574, 382 A.2d 62 (App.Div.1977) (citing Cerniglia, supra, 50 N.J.Super. 201, 141 A.2d 558; Armitage v. Trs. of Mt. Fern M.E. Church, 33 N.J.Super. 367, 110 A.2d 154 (Cty.Ct.1954); 1A Larson, Workmen's Compensation Law, § 47.41 (1973)). The Cerniglia court noted that “[t]he [workers'] compensation decisions uniformly exclude from the definition of ‘employee’ those who neither receive nor expect to receive any kind of pay for their services.” Cerniglia, supra, 50 N.J.Super. at 208, 141 A.2d 558 (citing 1A Larson, supra, § 47.41 at 696).

To learn more about this and other criminal cases, please visit my New Jersey criminal lawyer site.

Voss v. Tranquilino

In Voss v. Tranquilino (Docket No. A-110-09, Decided June 1, 2011) the New Jersey Supreme Court held that N.J.S.A. § 39:6A-4.5(b)—prohibiting driving while intoxicated (DWI) offenders involved in accidents from suing for recovery of economic or noneconomic loss—does not preclude negligence suits against licensed alcohol servers. That is, N.J.S.A. § 39:6A-4.5(b) is coexistent with the deterrence and liability-imposing principles of the Dram Shop Act, N.J.S.A. §§ 2A:22A-1 to 2A:22A-7.

Plaintiff motorcycle rider alleged that, prior to the accident at issue, he was a patron at the restaurant owned by defendants and was negligently served alcoholic beverages that contributed to the accident and caused his injuries. The motorcycle rider was charged with DWI, and pled guilty. Based on plaintiff’s guilty plea, defendant sought dismissal of the suit on the grounds that N.J.S.A. § 39:6A-4.5(b) operates as bar to recovery for DWI offenders. The trial court denied the motion, and the Appellate Division affirmed. The panel explained that the Dram Shop Act serves to: (1) make liability coverage for liquor licensees more available and affordable by defining the limits of the civil liability of beverage servers; (2) encourage the use of risk reduction techniques by liquor licensees; and (3) permit a person who sustains damages as a result of negligent service to sue. Review of legislative history indicated that a provision prohibiting suit against licensed servers was explicitly rejected as overly burdensome to negligence victims. Moreover, such a reading would create a disincentive to liquor establishments to refrain from serving visibly intoxicated patrons.

Because the purpose of N.J.S.A. 39:6A-4.5(b) was to bring down automobile insurance premiums, and not to reduce liquor liability insurance premiums or to in any way affect dram shop claims, the court reasoned that N.J.S.A. 39:6A-4.5(b) must not operate to bar negligence suits. The court determined that barring dram shop claims would unjustifiably constitute repeal by implication of a portion of the Dram Shop Act. Moreover, immunizing liquor licensees from liability in such circumstances would be inimical to the State’s policy of curbing drunk driving. In agreement with the foregoing findings of the Appellate division, the Supreme Court affirmed. The Court noted that in allowing the action to proceed, rather than barring it pursuant to N.J.S.A. 39:6A-4.5(b), the application of established principles of comparative negligence will apportion properly the responsibility for damages as between dram shop parties and the injured driver.

State v. Schmidt

Late last week New Jersey's Supreme Court decided in State v. Schmidt that once a person gives initial consent to providing a breath sample, no further action by the police is necessary to provide additional warnings to him in the event he does not provide adequate breath samples. In other words, teh defendants have to cooperate immediately with all instructions. The officers are not required to ask more that one or two times to have the defendant provide a breath sample or beg time and again, either.

InSchmidt, the police arrested for drunk driving and, prior to administering a breath test, read him the first portion of the standard statement required under NJSA 39:4-50.2(e) (aka paragraph 36). The defendant consented to taking a breath test, but thereafter was either unwilling or unable to provide adequate breath samples. The defendant claimed on appeal that the police should have read him the second portion of paragraph 36 before charging him with the refusal offense.

State v Audubato

Yesterday, in State v Audubato (see below) the App Div held that use of flashing lights did not transform a field inquiry into a Terry 'stop' in a case where def was a already stopped in front of his own house. Field inquiries do not require any basis at all. In this case the court found that community caretaking doctrine applied as the police did not know it was def,so own house. A red herring in the case was that the police officer testified that the dispatcher may have said the def was drunk. The dispatcher notes did not reveal this. Once the police officer, he smelled alcohol on the def breath and the event turned to a investigative stop.

In State v. Adubato (Docket No. A-3419-09T1, Decided May 23, 2011) the New Jersey Superior Court held that police use his flashers when pulling up behind a stopped car late at night does not elevate a field inquiry into a Terry stop. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him down for the officer’s safety, if that stop is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. Under this standard, an investigatory stop is valid only if the officer has a particularized suspicion based upon an objective observation that the person stopped has been engaged or is about to engage in criminal wrongdoing.

Here, after receiving dispatcher notification about a possibly intoxicated driver “continually driving around the neighborhood . . . exiting the vehicle,” Officer Horton found defendant’s car—matching the license number provided by the dispatcher—stopped on the side of the road, with the engine running, the lights on, and the defendant speaking loudly on a cell phone. At the time Horton was unaware that the vehicle was parked in front of defendant’s residence because he had not yet performed a record check. When Horton approached the car he detected a strong odor of alcohol. He observed that defendant’s eyes were bloodshot and his speech slurred. Defendant, upon questioning, admitted to Horton that he had been drinking at a pub, at which time Horton administered field-sobriety tests. Based upon the results of those tests defendant was arrested and charged with DWI, among other offenses.

On appeal from denial of defendant’s motion to suppress, the court sought to determine whether, under the totality of the circumstances, Horton’s conduct violated defendant’s constitutional rights. Under the circumstances, the court found that further inquiry by Horton was warranted under both Pineiro (field inquiry standard) and Martinez (community caretaker standard). The court found Horton’s conduct to be “constitutionally ambiguous.” That is, while defendant may have been concerned that he was not free to drive away, he may also have been reassured that the person parking behind was a police officer rather than a stranger with potentially unfriendly intentions. Because the use of the flashing lights was routine, and enhanced Horton and his partner’s safety, as well as that of defendant, the court found it to be acceptable conduct. Moreover, once Horton ascertained that defendant had the odor of alcohol on his breath, bloodshot and watery eyes, slurred speech, and that he had been drinking, he had a sufficient basis for a Terry stop. As such, the denial of defendant’s motion to suppress was upheld.

Kentucky v. King (Docket No. 09-1272, Decided May 16, 2011)

Summary

In Kentucky v. King (Docket No. 09-1272, Decided May 16, 2011) the United States Supreme Court held that a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. During the course of a controlled drug bust, officers in hot pursuit of a suspected drug dealer, but unsure which of two apartments the suspect entered, smelled marijuana smoke emanating from one of the apartments and erroneously presumed the suspect to be inside. Officers preceded to bang on the apartment door loudly announcing “This is the police” or “Police, police, police.” Upon hearing movement from within the apartment which caused officers to believe that drug-related evidence was about to be destroyed, the officers announced that they “were going to make entry inside the apartment.” Upon entry, officers discovered evidence of drugs.

The Kentucky Supreme Court held that the evidence obtained from the apartment search should have been suppressed on the grounds that the exigent circumstances exception to the warrant requirement did not apply because the officers deliberately created the exigency by knocking on the door, and that the hot pursuit exception to the warrant requirement did not apply because the suspect was not aware he was being pursued. Defendant was subsequently convicted on various drug charges.

On appeal to the Supreme Court, defendants contended that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable. However, the Court rejected this view, determining that the ability of officers to respond to an exigency cannot turn on such subtleties as the officers’ tone of voice in announcing their presence and the forcefulness of their knocks. It further rejected the “bad faith,” “reasonable foreseeability,” “probable cause and time to secure a warrant,” and “standard or good investigative tactics” standards employed by the lower courts. Instead, the Court held that the appropriate standard is whether police gained entry to premises by means of an actual or threatened violation of the Fourth Amendment. It reasoned that when police, without a warrant, knock on a door, occupants are under no constitutional obligation to open the door or to speak to police. Therefore, occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

Because, under these circumstances, the officers did not inform defendants they would make entry until after the exigency—the believed destruction of drug evidence—had arisen, the Court concluded that there was no evidence of a Fourth Amendment violation. However, the Court, for the purposes of argument, relied on the trial court’s determination that a genuine exigency existed; this finding was subsequently questioned by the Kentucky Supreme Court, observing that there was “certainly some question as to whether the sound of persons moving [inside the apartment] was sufficient to establish that evidence was being destroyed.” Noting that this was an issue to be addressed by the trial court, the Court reversed and remanded because the exigency justified the warrantless search of the apartment.

Significance

Warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). The exigent circumstances doctrine, one well-established exception to the warrant requirement, permits police entry where there is an imminent risk of death or serious injury, a danger that evidence will be immediately destroyed, or fear that a suspect will escape. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). The significance of the Court’s holding in Kentucky v. King lies in its potential to significantly curb the ability of defendants to successfully oppose warrantless searches on Fourth Amendment grounds. By permitting officers to “knock, listen, then break the door down,” the Court substantially expanded the scope of the exigent circumstances doctrine by allowing police to essentially create or manufacture the exigency to a greater degree than that which was permitted under the various standards previously employed by the lower courts. Kentucky v. King (Ginsburg, J., dissenting). For instance, the “bad faith” standard employed by some jurisdictions prior to King asked whether law enforcement officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement. United States v. Gould, 364 F.3d 578, 590 (5^th Cir. 2004). This standard, like the others rejected by the King Court, imposed a higher burden on law enforcement to show a legitimate, pressing cause for entry. Under the standard adopted in King, upon smelling marijuana, even if officers threaten to kick down the door if the occupants do not open it, its constitutionally permissible for the officers to enter if they hear sounds that suggest evidence is being destroyed. However, if a defendant answers the door and makes no sound, the officers would have no constitutional right to enter, although they may ask for permission to enter. Any evidence from that consensual search would be then be allowed. As Justice Scalia explained during oral argument, that would be “taking advantage of the stupidity of the criminals,” and “the one thing that [law enforcement] has going for it is that criminals are stupid.”

As such, the Court’s decision places individuals suspected of criminal activity in a lose-lose situation. Upon announcement of police presence, individuals are left with somewhat unfavorable options: (1) answer the door but decline consent to search—an option that many individuals, inherently intimidated by police and unaware of their constitutional rights would be unlikely to evoke; (2) answer the door and consent to police search—an option which would make any seized evidence fair game under the Fourth Amendment; or (3) fail to answer the door—an options which risks that any sound made in the moments following announcement might be construed as indicative that evidence is being destroyed, thus triggering the exigent circumstances exception as construed by the King Court.

To learn more about this and other criminal cases, please visit my New Jersey criminal lawyer site.

State v. McLean, 205 N.J. 438 (N.J. 2011)

HELD: The opinion offered by the officer does not meet the requirements
needed to qualify it as a lay opinion and permitting the officer to testify
about his opinion invaded the fact-finding province of the jury.

1. The familiar standards governing expert opinion testimony are found in
three separate rules. See N.J.R.E. 702, 703, 705. An expert is one who is
qualified "by knowledge, skill, experience, training, or education" and who
is therefore permitted to offer testimony in the form of an opinion that
"will assist the trier of fact to understand the evidence or to determine a
fact in issue." N.J.R.E. 702. Experts, unlike other witnesses, are permitted
to rely on information that would otherwise be hearsay, and to present it to
the jury, if others in their field of expertise reasonably and customarily
do so. N.J.R.E.
703; see N.J.R.E. 705  [*6] (governing disclosure by experts and manner of
questioning experts). The Court has held, in its seminal decision, that
because expert opinions in narcotics prosecutions are governed by N.J.R.E.
702, such testimony is limited to "relevant subject[s] that [are] beyond the
understanding of the average person of ordinary experience, education, and
knowledge," State v. Odom, supra, 116 N.J. at 71, 560 A.2d 1198. Expert
testimony is not admissible if the transactions at issue occurred in a
straightforward manner. Moreover, experts may not, in the guise of offering
opinions, usurp the jury's function by, for example, opining about
defendant's guilt or innocence or about the credibility of parties or
witnesses.
Unless confined to their proper role, expert opinions may present the risk
of undue prejudice to defendants. As for the use of hypothetical questions,
although permissible, their use is not unbounded. The Court has imposed a
number of safeguards, including that defendant's name not be included in the
question or answer and that the judge should instruct the jury that they are
not bound by the expert's opinion because the decision about guilt is theirs
alone. (Pp. 11-21)

2. Lay opinion testimony can  [*7] only be admitted if it falls within the
narrow bounds of testimony that is based on the perception of the witness
and that will assist the jury in performing its functions either by helping
to explain the witness's testimony or by shedding light on the determination
of a disputed factual issue. Perception rests on the acquisition of
knowledge through use of one's sense of touch, taste, sight, smell or
hearing. Although our appellate court, in explaining lay opinion testimony,
has referred as well to the officer's training and experience, the analysis
of admissibility has been, as it must be, firmly rooted in the personal
observations and perceptions of the lay witness in the traditional meaning
of Rule 701.
There are, however, limits that have traditionally been imposed on lay
opinion testimony. For example, unlike expert opinions, lay opinion
testimony is limited to what was directly perceived by the witness and may
not rest on otherwise inadmissible hearsay. (Pp. 21-27)

3. The Court has established the boundary line that separates factual
testimony by police officers from permissible expert opinion testimony. On
one side of that line is fact testimony, through which an officer is  [*8]
permitted to set forth what he or she perceived through one or more of the
senses. On the other side, the Court has permitted experts with appropriate
qualifications, to explain the implications of observed behaviors that would
otherwise fall outside the understanding of ordinary people on the jury. In
this appeal, the State suggests, and the appellate panel agreed, that there
is a category of testimony that lies between those two spheres, governed by
the lay opinion rule. The Court does not agree. To permit the lay opinion
rule to operate in that fashion would be to authorize every arresting
officer to opine on guilt in every case. The testimony of the police
detective - because it was elicited by a question that referred to the
officer's training, education and experience - in actuality called for an
impermissible expert opinion. To the extent that it might have been offered
as a lay opinion, it was impermissible both because it was an expression of
a belief in defendant's guilt and because it presumed to give an opinion on
matters that were not beyond the understanding of the jury. In the final
analysis, the approach taken to this testimony by the trial court and the
Appellate Division [*9] would effectively authorize an officer both to
describe the facts about what he or she observed and to opine in ways that
the Court has precluded previously. The Court declines to permit the lay
opinion rule to be so utilized. (Pp. 27-32)

The judgment of the Appellate Division is AFFIRMED in part and REVERSED in
part. Defendant's convictions for the two possessory offenses are affirmed
and the matter is REMANDED for a new trial on the charges of third-degree
possession of a controlled dangerous substance (heroin) with intent to
distribute, and third-degree possession of a controlled dangerous substance
(heroin) with intent to distribute within 1000 feet of a school property.

Law Enforcement Notes

T HIS WEEK THE NJ SUPREME COURT RULED THAT if a law enforcement officer's notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge. Defendant, charged with sexual assault, was interviewed by law enforcement officers at which time he acknowledged having sexual relations with the alleged victim. Defendant later testified at trial that although he initially denied the allegations, after law enforcement repeated the details over and over again, stating that defendant would be permitted to go home if he complied, he admitted to the accusations. At trial, law enforcement admitted destroying hand written notes taken during interviews conducted with the defendant, pursuant to supervisors' instructions not to retain contemporaneous notes.

The Court, on review, noted that Rule 3:13-3 encompasses the writings of any police officer under the prosecutor's supervision as the chief law enforcement officer of the county. If a case is referred to the prosecutor following arrest by a police officer, or on a complaint by a police officer, local law enforcement is part of the prosecutor's office for discovery purposes. The Court held that implementation of this retention and disclosure requirement is to be deferred for thirty days to allow prosecutors sufficient time to educate police officers. Thereafter, if an officer's notes are lost or destroyed before trial, a defendant, upon request, may be entitled to an adverse inference charge molded to the facts of the case. However, the Court held that where, as in this case, a defendant neither requests an adverse inference charge before the jury instructions, nor raises the issue before filing a motion for a new trial, defendant is not entitled to such instruction.

Kentucky v. King

In Kentucky v. King the United States Supreme Court held that a warrantless entry based on exigent circumstances is reasonable when the police did not create the exigency by engaging or threatening to engage in conduct violating the Fourth Amendment. During the course of a controlled drug bust, officers in pursuit of a suspected drug dealer smelled marijuana smoke emanating from an apartment. Believing the suspect to be inside, officers preceded to bang on the apartment door “as loud as [they] could” announcing “This is the police” or “Police, police, police.” Upon hearing sounds that led the officers to believe that drug-related evidence was about to be destroyed, the officers announced that they “were going to make entry inside the apartment,” at which time they discovered evidence of drugs.

At trial, defendants contended that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable. However, the Court rejected this view, determining that the ability of officers to respond to an exigency cannot turn on such subtleties as the officers’ tone of voice in announcing their presence and the forcefulness of their knocks. It further rejected the “bad faith,” “reasonable foreseeability,” “probable cause and time to secure a warrant,” and “standard or good investigative tactics” standards employed by the lower courts. Instead, the Court reasoned that in the vast majority of cases in which persons who are engaged in illegal conduct destroy evidence, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement. Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of the exception. Thus, the Court concluded that the exigent circumstances rule applies when the police do not gain entry to premises by means of an actual or threatened violation of the Fourth Amendment. Because, in this case, the officers did not inform defendants they would make entry until after the exigency arose, the Court concluded that there was no evidence of a Fourth Amendment violation, and remanded for further proceedings consistent with the established standard.

To learn more about this and other criminal cases, please visit my New Jersey criminal lawyer site.

State v. Rehmann

On May 1, 2011 in State v. Rehmann, the Appellate Division ruled that the supervisor of a state police laboratory technician would be permitted to testify at the defendant's drunk driving trial, even though the supervisor did not personally test the defendant's blood sample. The Court reasoned that confrontation clause considerations normally require that all fact witnesses who testify have personal knowledge about the substance of their testimony. As a result, surrogate witnesses are not permitted at criminal trials. However, in this particular case, the supervisor was no surrogate witness. He had watched the technician perform the test of the blood sample and had extensive, detailed personal knowledge about how the testing had been performed.

According to the Court, "[T]he Confrontation Clause is not satisfied by calling just anyone to the stand to testify about laboratory tests or other scientific results. A 'straw man' will not do. The State must provide a witness who has made an independent determination as to the results offered."

It is important to note that this is the first time this precise issue has been considered by a New Jersey court. The identical issue is currently before the United State Supreme Court and will be decided later this term. (Bullcoming v. New Mexico, 131 S. Ct. 62 (2010)).

State v. Lee

State v. Lee, 417 N.J. Super. 219 (App. Div. 2010)

The Appellate Division held that where a defendant's sexual contact is with his own intimate parts in view of an adult victim, conviction on a charge of criminal sexual contact requires proof of physical force or coercion beyond defendant's act of touching himself. The defendant had followed the victim into an elevator and then allegedly exposed his penis to her and began to masturbate. The defendant was charged with criminal sexual contact in violation of N.J.S.A. 2C:14-3b, which requires that one of the circumstances in N.J.S.A. 2C:14-2(c)(1)-(4) be met. The relevant section in this matter was N.J.S.A. 2C:14-2(c)(1), which requires the use of physical force or coercion. The court noted that the defendant did not use any physical force because he never touched her, made any threats to her, or made any other form of communication to her. There was no invasion of her bodily integrity so the state was not relieved of the obligation to show physical force or coercion. As an element of fourth degree sexual assault, when the touching is of the actor himself, the phrase "physical force" means a force other than the touching. The court noted that masturbation in view of a non consenting adult can violate the lewdness statute, which is only a disorderly persons offense.

Please visit our website for more information on sex crimes defense.

State v. Rodriguez-Alejo

State v. Rodriguez-Alejo, A-0815-09T3, (N.J. Super. App. Div. March 25, 2011)

The defendant was convicted of violating N.J.S.A. 39:4-50.2 for refusing to submit to a breath test. On appeal, the defendant argued that his limited English proficiency prevented him from understanding the instructions regarding the breath sample. The Appellate Division overturned the conviction, finding that the defendant was not sufficiently warned of the breathalyzer process.

During the conversation he had with the arresting officer, the defendant indicated to the officer that he spoke very little English. The defendant was subsequently arrested for driving while intoxicated after failing a field sobriety test. At the police station, the officer administered a breathalyzer test. He quickly read the standard breathalyzer notification to which the defendant replied that he did not understand. When asked if he would submit to the breathalyzer, the defendant replied “I don’t understand” and then “yeah.” The officer did not read to the defendant the part of the breathalyzer notification that explains the effect of a refusal to undergo the test. The officer attempted to use hand gestures and a couple words in Spanish to explain what the defendant had to do. During his testimony at trial, the defendant testified, through an interpreter, that he conducted all his work and social activities in his native language.

In State v. Marquez, which was decided while the present case was pending appeal, the NJ Supreme court found that reading the statement to a motorist in a language they don’t understand is akin to not reading it at all. The holding in Marquez required the court to undertake a retroactivity analysis. The found that decision in Marquez should be given retroactive application which was just and consonant with public policy under State v. Nash, 64 N.J 464, 469 (1974). Neither the purpose of the rule, reliance on the law preceding decisions, nor administration-of-justice considerations justify limiting the rule announced in Marquez to application solely to cases arising after the decision was announced. The court found that the statement should have been read in its entirety in Spanish to the defendant.

Please visit our website for more information on sex crimes defense.

Lay Opinion Rule Reversed

Today in State v McClean, the NJ Supreme Court reversed a drug conviction which had been partially based upon use of the so called "lay opinion rule" where the police officer testified based upon his training and experience as to what constituted intent to distribute. This type of issue is a hot topic in DWI law as well since State v Bealor alllowed officers to testify upon their training and experience as to marijuana intoxication. The Court here finds that either you are an expert or a lay witness but there is no in between. In the Courts words:

"The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. "

Judge's Ruling on unreliable Breath-Test Indicator could affect Atlantic County DWI Arrests

This week something very important in DWI law took place when Judge Max Baker overturned a driving under the influence conviction this week. Judge Baker found that only one brand of thermometer probe should be used to determine the reliability of the breath-test machine.The decision, which covers the entire county, could throw out the results of any machine using another probe, lawyers say. State Police, who regulate the Alcotest breath test, could not immediately say how many police departments in Atlantic County use the component cited by the judge as unreliable.

Municipal prosecutors in Atlantic county will look to Prosecutor Ted Housel in determining what happens next. "I'm sure Mr. Housel will evaluate the issue and give a directive on how to handle future prosecutions in these matters," said Christopher Lipari, the Galloway Township prosecutor who got the conviction that Baker overturned this week. In that case, Emilio Rivera was pulled over Dec. 31, 2009, while driving on the Garden State Parkway. He was eventually administered the Alcotest at the Bass River Barracks, and his case heard in Galloway Township Municipal Court. But after his conviction, attorney Alan Lands appealed on several issues, including the probe manufacturer and that the room where the test was given had not been cleared of all other electronic equipment, as mandated so as not to interfere with the results.

While Ertco-Hart is independently tested, Control tests its own equipment. "If find that that is a critical error," Baker said.

Evan Levow, who argued the state Supreme Court case, said he was glad that Baker detailed why the Control Company's probe should not be an alternative."Not only do you have to meet these standards, it has to be verified independently," he said. Levow said it's likely another company's probe will eventually be approved. Levow said that wouldn't be a problem, as long as the same standards are applied."It looks like Judge Baker was trying to follow the Supreme Court's order," said John Menzel, who also argued the Supreme Court case.

Months of hearings on the Alcotest named only one probe, the Ertco-Hart, he said."Ertco-Hart was not litigated all that much because it's a fine piece of equipment," Menzel said. "The use of the Control Company was never examined, and there was never any consideration of that device (in the case)."

The State Police could not immediately comment on which municipalities have the Ertco-Hart and which have replaced that with the Control Company's probe. Control did not return a request for comment.If the Alcotest results are lost, that does not automatically throw away any DUI cases in the county, Verno said. The prosecutor still would have the field-sobriety test and the officer's testimony."It doesn't necessarily negate all previous and future cases," she said. "But it does create some significant issues."

To learn more about Alcotest and New Jersey DWI laws, please visit the New Jersey DWI laws page a of our Criminal Law Website.

State v. Brown - A Summary

As a result of an investigation into several robberies and thefts, the defendant was implicated in those crimes. On January 1, 2005, five complaints were prepared against the defendant. Four of them sought authorization to arrest the defendant for various offenses and the fifth complaint charged him with resisting arrest and listed the address of his girlfriend. At the time of the defendant’s arrest, no judicial officer had reviewed the complaints or authorized the defendant’s arrest. That evening, officers went to the girlfriend’s apartment to arrest the defendant and when the police knocked, she opened the door and the defendant fled through a window onto an adjacent roof. Following a twenty-minute standoff, police convinced the defendant to come down and they then arrested him. The next day the defendant had his Miranda rights read to him and he initialed, signed a waiver form and then made incriminating statements. A grand jury indicted the defendant and others for multiple counts of armed robbery and numerous other offenses. The defendant’s motion to suppress his statements, which argued 1) that his arrest was unlawful because the warrants were not authorized until after the arrest , 2) that his subsequent statements were thus inadmissible, and 3) that he did not waive his Miranda rights, was denied.

The New Jersey Supreme Court held that at the time the defendant fled through a window onto a roof next door, the police had engaged in no misconduct; thus, there was no seizure of any sort in the apartment. When the police arrested the defendant after he came down from the roof, they did not need an arrest warrant because they had probable cause to arrest him in a public place (1) for armed robbery committed outside their presence and (2) for resisting arrest, which they observed. Arrest warrants and warrantless arrests in public must be supported by probable cause to believe that a crime has been committed and the person sought to be arrested committed the offense. The statements of The defendant’s co-defendants implicating him in armed robberies meet that test. The parties do not dispute the existence of probable cause. They focus on whether the arrest was lawful in light of the defective arrest warrants. Without a warrant, the State must prove the overall reasonableness of an arrest.

During an ongoing investigation, police did not need a warrant to knock on the door of the defendant’s girlfriend’s apartment. The defendant fled out the window immediately upon learning of the police presence. The defective warrants are irrelevant here. By moving to a public place, the defendant transformed the situation from an arrest in a private apartment, where police would need a warrant, to the public arena, where the police could arrest him without a warrant based on probable cause that he had committed armed robbery. Also, after jumping onto a roof, the defendant created a police standoff in a public place, posing a risk to officers and the public. The police did not need a warrant to arrest for resisting. Substantial, credible evidence in the record supports the finding that the defendant voluntarily waived his Miranda rights. Thus, the statements he made while in police custody were admissible at trial.

To learn more about this and other criminal cases, please visit my New Jersey criminal lawyer site.

Change in Law - Driving with a Suspended License

Please take notice that as of August 1, 2011, the law regarding driving with a suspended license, N.J.S.A. 2C:40-26, has changed.

It will now be a crime of the 4^th degree if a person drives with a suspended license if the license was suspended for either a first or second violation of Driving While Intoxicated. If you are convicted under this amended the law, the court must sentence you to a term of imprisonment of no less than 180 days, during which you will not eligible for parole.

State v. Murphy

In State v. Murphy, 412 N.J. Super. 553 ( App. Div. 2010), the defendant had been charged and convicted of possession of CDS. The defendant appealed alleging that the prosecutor has made improper remarks during her closing statement and that the trial court had erred when it permitted the prosecution to impeach the credibility of the defendant using a 17 year old conviction.

In her closing statement, the prosecutor personally vouched for the credibility of the officer who testified against the defendant, indicating that he had no reason to lie in his testimony. When defense counsel objected to the remarks, the trial judge said, in full hearing of the jury, that the remark was a “fair comment” on the evidence. The Appellate Division noted that when reviewing allegedly improper remarks, the court must evaluate the prosecutor’s remarks in the context of the tenor of the trial and the degree of responsiveness of both counsel and the court to the improprieties when they occurred in order to determine when the defendant was denied a fair trial. The Appellate Division found that the remark was improper and was not a harmless error. Because the judge called the remark a “fair comment,” the jury may have been improperly influenced in their determinations of credibility and since the trial essentially would be decided on the basis of credibility of witnesses, this was not simply a harmless error.

The 17 year old conviction was for possession of CDS with intent to distribute. Since the old conviction was so similar to the case at hand, the trial judge sanitized the conviction and only allowed the State to elicit the fact of the conviction, the degree of the crime, and the date of the conviction. The Appellate Division found that the previous conviction did not meet the “serious crimes” standard set out in State v. Sands, 76 N.J. 127 (1978). Under N.J. Rule of Evidence 609, the probative value of the conviction was vastly outweighed by its prejudicial value. Again, because the outcome of the trial would be decided by determinations of credibility, the erroneous admission of the previous conviction was not a harmless error.

Entering a Home Without a Warrant

The U.S. Supreme Court is wrestling with a case that could give police greater power to forcibly enter a home without a warrant.

The Constitution bars warrantless searches except in certain circumstances — for example, an emergency search to prevent the destruction of evidence. But on Wednesday, the question before the court was whether police, by themselves creating such exigent circumstances, are unconstitutionally evading the warrant requirement.

The case before the court began in 2005 when Lexington, Ky., police banged on the door of an apartment where they thought they smelled marijuana. After loudly identifying themselves, police heard movement inside, and fearing the destruction of evidence, they broke in. Inside they found Hollis Deshaun King smoking marijuana. Police also found marijuana and cocaine on the kitchen counter. King was convicted of drug trafficking and related offenses.

But the Kentucky Supreme Court reversed the conviction. The state court ruled that the drugs found in the apartment could not be used as evidence against King because police had no warrant for the search, and the only emergency circumstances were those created by the police themselves when they loudly alerted the suspect to their presence.

Prosecutors appealed to the U.S. Supreme Court, which heard arguments in the case Wednesday.

Kentucky Assistant Attorney General Joshua Farley told the justices that since the smell of marijuana gave police probable cause to believe a crime was occurring in the apartment, and since police heard movement inside after they knocked, they lawfully broke in to prevent the evidence from being destroyed.

Chief Justice John Roberts tested Farley's theory. "So, you have an apartment building where the police know from experience there is a lot of illegal activity, a lot of drugs." Can police every two weeks "walk through and knock on every door" and break in when they hear movement inside? "Is that all right?"

Farley responded that it would be all right as long as police had separate probable cause to believe a crime was occurring. In this case, he said, the probable cause was the smell of marijuana.

Justice Ruth Bader Ginsburg asked whether this meant that police could merely "sniff at every door," knock on those doors where they smelled marijuana, and break in once they heard a noise.

It "would be perfectly fine for the officers to do that," Farley responded.

Fourth Amendment Issue

But Ginsburg noted that the smell of marijuana would be enough to get a warrant. "We start out with a strong presumption that the Fourth Amendment requires a warrant," she observed. Why wouldn't the police just get a warrant, she asked, rather than knocking on the door and alerting the people inside?

Justice Antonin Scalia pointed out that if the suspects had quickly answered the door and simply refused to permit entry, the police would have been powerless to do more. "The police," he said, "were taking advantage of the stupidity of the criminals."

Justice Elena Kagan worried that allowing police to create exigent circumstances would be "essentially eviscerating the warrant requirement in ... the one place that the Fourth Amendment was most concerned about."

"[I]f there is one place where the warrant requirement has real force," she said, "it's in the home." Without a warrant, she suggested, "all the police really have to say is: 'We saw pot, we heard noise,' " and they would be able to break in.

Kentucky public defender Jamesa Drake, arguing on behalf of the defendant, urged the court to consider the consequences for all citizens if the warrant requirement is diluted.

"There is no difference between what happened in this case and how an innocent person would respond," she said, noting that police had banged on the door loudly at 10 p.m., and all they heard inside was movement — a noise that she seemed to suggest did not necessarily indicate the destruction of evidence.

But Drake seemed unable to persuade the justices that she had a workable rule to supplant the broad one suggested by prosecutors. And she struggled to draw a distinction between this case and what she saw as genuinely exigent circumstances that justify a warrantless search.

A decision in the case is expected by summer.