Requirement to Provide Experts

August 12, 2013

Gordon v. Township of Toms River, Appellate Division A-5139-11T1

Requirement to provide experts

Submitted by New Jersey criminal lawyer Jeffrey Hark

 

August 8, 2013, the Appellate Division affirmed the trial court’s summary judgment against the plaintiff Richard Gordon. On September 27, 2009, Gordon had a few drinks that evening on the Seaside Heights Boardwalk and decided to sleep on the couch at his ex-girlfriend’s home. Upon arrival, he discovered she was not home and called her 14 times, receiving no response he entered the house through the bedroom window. When the plaintiff’s ex-girlfriend returned, she saw his vehicle parked outside and called police. The police arrived with their K-9 officer, Boris and went inside the home. Police made the “K-9 Announcement” and received no response. After a reasonable amount of time Boris was released and apprehended the plaintiff by biting him in his buttocks, right shoulder, left thigh and left calf. The plaintiff was charged with burglary, harassment, stalking and trespassing.

Pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, the plaintiff alleged excessive force and negligence by the police in handling of the K-9 officer. Defendants moved for summary judgment on two arguments 1) the scarring by the dog bites were not substantial within the meaning of N.J.S.A. 59:9-2(d) and; 2) plaintiff failed to provide expert opinion necessary to establish negligent handling of the K-9 unit. At trial, the judge accepted the medical expert testimony that the dog bites resulted in significant scarring. The plaintiff did not present an expert on proper K-9 unit procedure and the judge thought this was a significant issue. The judge did not think a jury could pass judgment on proper police procedure without a qualified expert and provided the plaintiff an additional 30 days to find an expert. Plaintiff did not provide an expert on police procedure.

The Appellate Division affirmed the trial court’s decision that the plaintiff needed to present an expert on police procedure. Whether or not an expert is required is established in Butler v. Acme Markets, Inc., 89 N.J. 270 (1982), as to if the matter to be decided is so esoteric that jurors cannot form a valid judgment based on their common experience alone. The plaintiff in this case needed an expert on proper police procedure, his allegation of negligence alone was not sufficient. When most citizens have no personal knowledge of the subject matter at issue, such as how police should conduct themselves and their K-9 units, an expert is helpful to the jury to decide an issue which otherwise would be impossible for the jury to decide. The take away is that already high use of experts in litigation is not going to change in the future.

“third-party intervention” exception or “private search” doctrine

State v. Wright, Appellate Division A-4813-10T1

“third-party intervention” exception or “private search” doctrine

Criminal case summary provided by New Jersey Criminal Lawyer, Jeffrey Hark

 

July 25, 2013, the Appellate Division affirmed the conviction of a defendant based on evidence obtained under the “third-party intervention” doctrine where police can search a defendant’s property without a warrant, as long as they are within the scope of the private actor’s intrusion. On March 30, 2009, the defendant’s girlfriend had given the landlord permission to enter the property to repair a leaky pipe causing damage in the kitchen and master bedroom. The landlord saw drugs in the bedroom and immediately called the police. Police arrived at the property and observed the leak and the drugs without seizing or searching anything. The tenant, the defendant’s girlfriend, was contacted while police were posted at the bedroom and entrance to the property to preserve evidence. When the girlfriend arrived, she was read her Miranda rights and consented to a search of the property. Police found marijuana, cocaine, a scale, sandwich bags, baking soda, a Pyrex plate with powder residue, a handgun in a backpack, hollow point round and a bag of one hundred bullets. At trial the defendant’s girlfriend denied giving the landlord permission to enter and stated she only consented to a police search because she was scared they would call DYFS.

At trial the judge did not find the defendant’s girlfriend to be a credible witness and that she was attempting to exculpate the defendant who fathered their child and controls her in a domineering relationship. The landlord had a right to be on the property and when the police entered the property they were within the “third-party intervention” exception to the Fourth Amendment’s warrant requirement. Based on the credibility findings at trial, the record shows no violation of the tenant’s privacy rights. The significant fact the court points to in application of the “third-party intervention” exception is that the police did not go beyond the physical scope of the landlord’s entry until they had the tenant’s consent. Therefore the Appellate Division agreed with the trial judge that the warrantless police search was constitutionally valid and affirmed the defendant’s conviction.

In upholding the conviction, the Appellate Division emphasizes the Fourth Amendment is protection from the government, not searches by private citizens. Hence the “third-party intervention” being synonymous with the “private search” doctrine. In Walter v. United States, 447 U.S., 649 (1980), the U.S. Supreme Court found no Fourth Amendment violation by the FBI’s receipt of films from a private party. When a private citizen, such as a landlord, searches a property he is motivated by reasons other than securing a criminal conviction. When that private individual is not acting in an illegal manner and his conduct is a reasonably foreseeable intrusion of privacy that conduct will not be a violation of the Fourth Amendment, therefore information resulting from that conduct in not in violation of the Fourth Amendment. Information obtained from the “private search” can be transmitted to police; however police are limited to only the initial discovery by the private party. Additional discovery by police beyond the private individual’s initial discovery requires the police have a warrant or consent.

Denial of Due Process

On February  7, 2013, the New Jersey Appellate Division decided the case State v. Gibson  (Docket No. A-5163-10T2) and found that the municipal court erred by relying on evidence from a suppression hearing during defendant’s trial on the merits. By doing this, the defendant was denied his due process rights.

Posted by: New Jersey Criminal Lawyer, Jeffery Hark

            The defendant, Bruno Gibson, was arrested by Winslow Township Police for DUI on November 17, 2007. The defendant’s suppression hearing was conducted on May 26, 2010 in municipal court. At the suppression hearing, the defendant argued that police lacked reasonable suspicion to stop his motor vehicle and also lacked probable cause to arrest him for DUI. The municipal court judge heard testimony from the arresting officer that he pulled the defendant over because he was speeding and failed to use his turn signal. Also, the officer stated that he detected an alcoholic odor and that defendant admitted to drinking. The officer then explained that the defendant was ordered to submit to field sobriety testing and that he performed poorly on the one legged stand and walk and turn test. The suppression hearing continued on October 27, 2010 and the defense introduced video footage of the stop to refute the officer’s testimony. The municipal court then determined that the officers had probable cause to stop and arrest the defendant. After that, the municipal court judge proceeded to conduct defendant’s trial on the merits. The municipal prosecutor explained to the judge that they did not have access to defendant’s blood reading and that they would rely on the officer’s observations. The defense counsel then moved to dismiss due to the absence of evidence. The municipal court found defendant guilty of DUI and failing to signal. The municipal judge relied on defendant’s performance on the two field sobriety tests and his post arrest demeanor and behavior.

            The defendant then appealed his conviction and the Law Division conducted a de novo trial. The Law Division judge distinguished State v. Allan, 283 N.J. Super. 622 (Law Div. 1995) (which held that a municipal court should not rely on the suppression hearing in trial on the merits unless defendant receives notice and consents)  from the defendant’s case.  The Law Division Judge found that defendant did not object to a trial based on evidence at the suppression hearing and also failed to show how he was prejudiced by the municipal court procedures. Based on this, the Law Division did not change defendant’s municipal court sentence.

            The defendant then appealed to the Appellate Division. The defendant argued that the State never proved his guilt beyond a reasonable doubt specifically because the state presented no evidence at trial and even if the evidence at the probable cause hearing is deemed to be admissible at trial, the State did not have enough to prove guilty beyond a reasonable doubt. The Appellate Court specifically discussed the Law Division’s findings and explained that the defendant did in fact object to the use of suppression hearing evidence because defense counsel moved to dismiss the charges. The Appellate Court then went into detail about how a suppression hearing is distinctly different from a trial on the merits. Specially, since the trial on the merits determines a defendant’s guilt and in contrast the suppression hearing determines if evidence is admissible based on the lawfulness of police conduct.  Also, the standard of proof at trial is beyond a reasonable doubt but during a suppression hearing the state must by a preponderance of the evidence show that officer had reasonable articulable suspicion to stop the defendant, and probable cause to arrest.

            The Appellate Court also took issue with the fact that the State never presented any evidence during defendant’s trial, considering that the State has the burden of proof of defendant’s guilt beyond a reasonable doubt.

             The Appellate Court found that the municipal court reliance of pre-trial hearing evidence violated the defendant’s right to procedural due process and fundamental fairness. Thus, the Appellate Court ruled that a court cannot be empowered over defendant’s objection, to consider pre-trial suppression hearing evidence in the trial on the merits; and simply proceed to closing arguments without asking defense counsel if he intends to call the defendant and/or witnesses.