A Good Day for New Jersey

 

Today was a good day to be from New Jersey.  I was never a big fan of Chris Christie.  His brash attitude and the unresolved controversy surrounding Bridgegate always had me leery.  But his new ad campaign on addressing the crippling and life threatening problem of addiction here in New Jersey has given me new respect for the Governor and his policies.

 

On Wednesday, February 15, 2017 Governor Christie signed legislation [Bill s3] requiring health insurance carriers to cover inpatient treatment and to set a limit on the amount of pain killers a doctor can prescribe.  The bipartisan bill goes into effect in 90 days.  While it does not address addiction treatment issues faced by those without insurance coverage, it does increase dramatically the access that the insured have to address their addiction issues without fear of dire financial consequences.

 

During my 33 years of practicing criminal law, I have been a witness to the devastation to clients and their families resulting from addiction issues.  While clients and families were eager to avail themselves of treatment, they were often impeded by the lack of insurance coverage and the high cost of treatment.  The long wait for inpatient treatment for those with no coverage caused prolonged pain for the addicted and their families.  This is a giant step going forward to help those in need at least those that do have insurance, but whose coverage did not include inpatient treatment.

 

In my divorce practice as well, this will be an encouraging step to allowing spouses with insurance coverage that previously did not cover inpatient treatment to avail themselves of treatment .  This may save their marriage and family.  The cost of inpatient treatment without coverage can be so prohibitive that families often tolerate spouses drug use for  years subjecting children to the ravages of addiction and even to setting the stage for new generations of addictive behavior.

Governor Christie has declared that his last year in office he will focus on increasing treatment opportunities for addicts and reducing wide spread abuse of painkillers.   I cannot think of a better campaign focus than that.

Hats off to our New Jersey Governor.

The Troubling State of New Jersey Automobile Search Standards

The Supreme Court of New Jersey, Justice Albin, delivering the opinion of the Court in State v. William Witt, decided in September of 2015, has reversed its stance on what is constitutionally permissible to search an automobile without a warrant.
Justice Albin’s opinion reversed the constitutional standard governing automobile searches set forth in State v. Pena-Flores, 198 NJ 6 (2009) and returned to the prior standard set forth in State v. Alston 88 NJ 211, 233 (1981).
What does all of this mean in practical terms for drivers charged with offenses involving automobiles after September 24, 2015?
The Court has determined that the principles set forth in Pena Flores, Supra, that is a multi-factor test for police officers to determine whether there is exigent circumstances excusing the securing of a warrant, are “too complex” and difficult for a reasonable police officer to adhere to. The Court also determined that the securing of telephonic warrants results in unacceptably prolonged roadway stops that subjected police and occupants of motor vehicles to increased risk or even death by passing traffic. Most importantly, the Court determined that the end result of the Pena-Flores ruling was that the unintended consequence of the ruling caused the police officers to resort to rely on Consent Search forms signed by the drivers to justify their search. Justice Albin clearly stated that “The heavy reliance on consent searches is of great concern given the historical abuses associated with such searches and the potential for future abuses”.
In the Witt case, the police initiated a stop of Defendant’s car because he did not dim his high beams as other vehicles approached. When the police approached the Defendant’s car, they noted that Defendant appeared to be intoxicated. When Defendant could not adequately perform the field sobriety tests, he was placed under arrest for DWI. While Defendant was handcuffed and placed in the back of the patrol car, they searched his car for “intoxicants” and found a gun in the center console.
Using the Pena-Flores case as its guide, the trial court found:
1. The officer had a right to stop Defendant’s car based on an unexpected occurrence and had probable cause to search for an open container of alcohol, but did not have “sufficient exigent circumstances” to conduct a warrantless search. The handgun was suppressed. The App. Div. granted the State’s motion for leave to appeal and the Appellate Division affirmed the trial court’s suppression of the gun because of the absence of exigency and that there was no justification for the stop.

The Supreme Court of New Jersey using the history and analysis of the New Jersey Constitution and the Federal Constitution discussed the “automobile exception” to the warrant requirement. The US Supreme Court authorized a police officer to conduct a warrantless search of a motor vehicle if it was “readily mobile” and the officer has probable cause to believe that the vehicle contains contraband or evidence of an offense. Under federal law, probable cause to search a vehicle alone satisfied the automobile exception to the 4-A’s warrant requirement. The federal automobile exception does not require a separate finding of exigency in addition a finding of probable cause as it does in New Jersey in keeping with Pena-Flores.
The US Supreme Court identified three rationales for the automobile exception.

1. The inherent mobility of the vehicle
2. Due to pervasive governmental regulations of motor vehicles, there is a lesser expectation of privacy in an automobile.
3. An immediate search may be a lesser intrusion than impounding the vehicle and detaining its occupants while the police obtain a search warrant.
With the recent decision in State v. Witt, the Supreme Court of New Jersey has now removed the exigency requirement and presumably returned to the Alston, supra standard that held that the automobile exception authorized a warrantless search only when the police have probable cause to believe the vehicle contains contraband or evidence of an offense and the circumstance and giving rise to the probable cause are unforeseeable and spontaneous. It is important to note, however, the specific language in the opinion regarding foreseeability, citing the Cook case at p. 163 NJ at 667-68. In the case of a parked car, if the circumstances giving rise to probable cause were foreseeable and not spontaneous, the warrant requirement applies.
The Court states that the new standard to be applied prospectively is specifically that roadway searches based on probable cause arising from unforeseeable and spontaneous circumstances are permissible. However, when vehicles are towed or impounded, absent some exigency, a warrant must be secured.
Now let’s imagine a case wherein the Defendant, a young woman and her boyfriend who sports a dark beard and pierced lip are sitting in a car with the engine off in a parking area. It is 6:15 p.m. The officer approaches the driver who maintains that she was merely finding directions on a GPS. The officer orders her out of the car and states that he smells an odor of “raw marijuana” in the car. He asks the young driver, who is frightened of the officer if she has any marijuana in the car. He tells her she can do it the easy way or the hard way. He never reads her her rights or tells her she has the right to remain silent. At this point, he has no probable cause to arrest her. Because she is afraid and because of the officer’s authority, she admits that she has a small closed and zip locked baggie of marijuana in a closed and secure back pack in the back seat of the car.
The officer orders the passenger out of the car and pats him down for weapons. He calls for back up. Another officer arrives within 15-10 minutes and the officer searches the entire vehicle, the front, back, under the seats, center console and the entire back pack in the back seat. He finds a small baggie of marijuana and arrests the driver. The car is left at the scene until the driver is processed because the passenger has no license.
What is wrong with this search? Everything. Even a return to the Alston standard cannot justify this search. The car was stopped. The officer says he smelled “raw marijuana”. Even giving the officer every benefit of the doubt, this is a stretch at best. The only marijuana in the car was in a small closed¬¬ zip lock bag inside a backpack on the backside. The likelihood that the officer could smell that just by opening the window is completely unbelievable. There was no other plain sight evidence to give rise to police officer that there was evidence of the marijuana. The only way the officer knew was by asking the Defendant to admit there was marijuana in the car. Under duress and with the veiled promise that things would go easy for her, she told the officer where it was. This is the very “consent search” that Justice Albin expressed concern with in the opinion of the Court. The fact is the car was stopped and the passengers secured. The officer had no legal justification for this warrantless search of the motor vehicle and the marijuana should be suppressed.
As the status of the law changes, now more than ever we need experienced lawyers familiar with the status of automobile searches to protect the rights of every citizen regardless of age, race or citizenship and to be free from police intimidation searches without legal justification.

A GOOD DAY FOR THE INNOCENT

As an attorney practicing criminal defense for 32 years, I have spent half my life defending individuals accused of committing criminal acts. A lot of the time, my job entails guiding them through the system and protecting their rights along the way and eventually achieving the very best plea result possible taking into account all possible defenses available to the client. Few cases result in trial, but when my client maintains his/her innocence, I am always prepared to go to trial rather than encourage a client to accept responsibility for a crime he/she did not commit.
The most difficult of all scenarios is the client has either choosen to plead guilty to a lesser crime to limit his or her exposure to a lengthy jail sentence when they have in fact not committed the crime, or even worse have been found guilty by a jury while adamantly insisting all the way that they are innocent. It is these clients that keep me up at night, that make it difficult to trust our justice system to do right by the people of New Jersey.

Today I applaud Governor Christie for signing into law a bipartisan bill 1678/s 1365 that will greatly improve access to DNA testing to help the wrongfully convicted prove their innocence and enable law enforcement to identify the truly guilty. The new law allows Defendants that are no longer incarcerated but may be on parole or probation or on a sex offender registry to be eligible for State and Federal DNA databases.

By removing the requirement that a person must be incarcerated to access DNA testing, it expands the number of individual that may benefit from clearing their names. It may restore lives and bring families together, allowing the wrongfully convicted to obtain gainful employment and support their families.

I hope to be able to make this new law available to those clients that have kept me up at night worrying and give them and their families a chance to sleep more soundly as well.