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)).