State v. Henderson, 208 N.J. 208 (2011)

Background: Defendant was convicted of reckless manslaughter, aggravated assault, and three weapons offenses. He appealed. The Superior Court, Appellate Division, reversed and remanded for a new Wade hearing on whether an eyewitness identification was reliable despite an identification procedure that was presumed to be impermissibly suggestive. The state filed a petition for certification. The Supreme Court remanded to the trial court for a plenary hearing to decide whether the assumptions and other factors reflected in the two-part Manson/Madison test for the admissibility of eyewitness-identification evidence remained valid. On return from remand, the Supreme Court held that courts must carefully consider identification evidence before it is admitted to weed out any unreliable identifications, consider the science pertaining to eyewitness identification and memory.

The Facts: The investigating officers intervened after the eyewitness, informed the lineup administrator that he could not make an identification from the final two photos. The officers conveyed a message that there was an identification to be made and they encouraged the witness to make one. The suggestive nature of the officers’ comments entitled defendant to a pretrial hearing, and he received one in which the trial court applied the Manson/Madison test. The case was remanded.

Holding: Upon remand, the Court held that the current legal standard for assessing eyewitness identification evidence must be revised because it does not offer an adequate measure for reliability; does not sufficiently deter inappropriate police conduct; and overstates the jury’s ability to evaluate identification evidence. Two modifications to the standard are required.

1) When defendants can show some evidence of suggestiveness, all relevant system and estimator variables should be explored at pretrial hearings.

2) The court system must develop enhanced jury charges on eyewitness identification for trial judges to use.

This new rule is to be applied to future cases except for defendant Henderson.

Please call the Law Office of Hark & Hark at 866-HARK-LAW to discuss the ramifications of your actions in greater detail or visit our criminal lawyer website.

New Jersey Supreme Court Rejects Request Backflip on Pena Flores

The Supreme Court issued a joint order today in four combined cases that sought to have the court do a back flip on Pena Flores. The State alleged that Pena Flores has been too big a burden on law enforcement and has resulted in less detection of criminal conduct. They supported this with NJSP data.

FOR NOW THE COURT REJECTED THE ATTORNEY GENERAL'S REQUEST THAT THE PENA-FLORES DECISION BE THROWN OUT.

Arguably, the state troopers wanted to get rid of the telephonic warrant requirement. It would explain their lack of confidence in the NJSP data.

Well, anyway Pena survives intact despite speculation as to why the court had granted cert on these cases. Now we know. View the court's order here.

State v. DeShazo, WL 1562246 (App. Div. 2011)

DeShazo was arrested in Egg Harbor Township driving a car with Virginia plates and a broken out rear window. The officer thought the car might be stolen but could not immediately confirm it. The officer was told that DeShazo was the victim of a shooting and kept a weapon in the center console of his vehicle. The officer searched the car and found a gun. The trial judge denied the defendant’s motion to suppress evidence. Defendant appealed and the Appellate Court reversed.

Under State v. Pena–Flores, 198 N.J. 6, 28 (2009), a “warrantless search of an automobile” is permitted “where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant.”

The court found no exigent circumstances existed because:

1) This was a daylight search;
2) The three officers outnumbered defendant and his passenger.
3) The officers could have had the car towed to a secure location and escorted defendant and the passenger to the police station until a driver with a license could come to the station to operate the vehicle for defendant. Once the vehicle was at the station, the officers could have secured a search warrant.
4) There was no explanation why a telephonic warrant could not have been pursued, either at the station or at the roadside.
5) the search was extensive, including accessing the trunk from the passenger's compartment by pulling the cord hanging down from the backseat, which brought the rear seat flat to the seated portion of the vehicle. We are persuaded that exigent circumstances did not exist to allow a warrantless search of the automobile driven by defendant.

The Court of Appeals reversed and remanded.

Search Warrant Case

The Appellate Division decided yesterday, in the matter of State v. Heine, that a when a property owner refuses to permit access to a residence for inspection by local officials, the proper remedy is for the municipal inspectors to secure an administrative search warrant. The court ruled refusing access does not constitute a violation of a local ordinance in the absence of a search warrant.

In Heine, a variety of municipal health, construction and fire officials sought to inspect a residential property owned by the defendant. She refused them access to the property, believing it was a violation of her constitutional rights.

Following three trials, she was found guilty in municipal court of various local ordinance violations related to the lack of access for the inspections. However, the Appellate Division held that although an administrative search to the warrant requirement exists in closely regulated industries, that exception does not apply in the context of a private home.