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E485: 1. 2016 update Wills and Estate Planning- Free Seminar, January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817. 2. Major Change in law permits car search if police have probable cause to believe that the vehicle contains contraband or evidence of crime. Warrantless auto search permitted on probable cause in lengthy opinion.

NJ LAWS EMAIL NEWSLETTER E485
Kenneth Vercammen, Attorney at Law

January 8, 2016

In this Issue:

1. 2016 update Wills and Estate Planning- Free Seminar, January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817.

2. Major Change in law permits car search if police have probable cause to believe that the vehicle contains contraband or evidence of crime. State v. Witt __ NJ __ (2015) Warrantless auto search permitted on probable cause in lengthy opinion.


E485

1. 2016 update Wills and Estate Planning- Free Seminar, January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817.

COST: Free if you pre-register by email. Complimentary materials will be provided at 12:00PM Sharp. We previously held this seminar for the Metuchen and Edison Adult Schools. The program is limited to 15 people. Please bring a canned food donation, which will be given to a community food bank. For attorneys, a more detailed program will be held April 18th from 5:00PM to 9PM at the NJ Law Center. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

(Author-Answers to Questions About Probate)

The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

2. Major Change in law permits car search if police have probable cause to believe that the vehicle contains contraband or evidence of crime. State v. Witt __ NJ __ (2015) Warrantless auto search permitted on probable cause.

The NJ Supreme Court Held: exigent-circumstances standard set forth in Pena-Flores is unsound in principle and unworkable in practice. Citing Article I, Paragraph 7 of New Jerseys State Constitution, the Court returns to the standard articulated in State v. Alston, 88 N.J. 211 (1981), for warrantless searches of automobiles based on probable cause: The automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous.

In this appeal, the Court addresses the constitutional standard governing an automobile search and considers whether to continue to follow the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009).

Defendant William L. Witt was charged in an indictment with second-degree unlawful possession of a firearm and second-degree possession of a weapon by a convicted person. The police initiated a stop of defendants car because he did not dim his high beams when necessary, and a search of his vehicle uncovered the handgun.

Defendant moved to suppress the gun on the ground that the police conducted an unreasonable search in violation of the New Jersey Constitution. Defendants sole argument was that the police did not have exigent circumstances to justify a warrantless search of his car under Pena-Flores. At the suppression hearing, Officer Racite testified that at approximately 2:00 a.m., while providing backup for a motor-vehicle stop, he observed a car pass with its high beams on.

The officer explained that a car must dim its high beams as vehicles approach. Thus, Officer Racite stopped the vehicle, and requested backup. Defendant, the driver, appeared intoxicated and was asked to exit his car. Defendant then failed field-sobriety and balance tests, and Officer Racite arrested him for driving while intoxicated. Defendant was handcuffed and placed in the back of a patrol car. While Officer Racite searched defendants vehicle for intoxicants, he found a handgun in the center console. With Pena-Flores as its guide, the trial court found as follows: the officer had a right to stop defendants 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. Accordingly, the court suppressed the handgun.

The Appellate Division granted the States motion for leave to appeal and affirmed the suppression of the gun because of the utter absence of any exigency to support the warrantless vehicle search that occurred, and because there was no justification for this motor vehicle stop. 435 N.J. Super. 608, 610-11 (App. Div. 2014). The panel declined to address the States argument that the exigent-circumstances test in Pena-Flores should be replaced because it has proved to be unworkable and has led to unintended negative consequences, explaining that, as an intermediate appellate court, it had no authority to replace Pena-Flores with some other legal principles.


The panel also agreed with defendants argument, raised for the first time on appeal, that Officer Racite did not have a reasonable and articulable suspicion to stop defendant because the relevant statute (N.J.S.A. 39:3-60) requires drivers to dim their high beams only when approaching an oncoming vehicle within 500 feet.

Resolution of the issue before the Court implicates the doctrine of stare decisis. Because stare decisis promotes consistency, stability, and predictability in the development of legal principles and respect for judicial decisions, a special justification is required to depart from precedent. That said, stare decisis is not an inflexible principle depriving courts of the ability to correct their errors. Among the relevant considerations in determining whether to depart from precedent are whether the prior decision is unsound in principle and unworkable in practice. The Court, therefore, turns to consider whether Pena-Flores is furthering the constitutional values that are protected by the New Jersey Constitution and whether there is special justification for departing from it.

The use of telephonic search warrants has not resolved the difficult problems arising from roadside searches, as the Court expected when it decided Pena-Flores. Prolonged encounters on the shoulder of a crowded highway may pose an unacceptable risk of serious bodily injury and death to both police officers and citizens. Moreover, the seizure of the car and the motorists detention may be a greater intrusion on a persons liberty interest than the search is on a persons privacy interest. Finally, the dramatic increase in the number of consent searches since Pena-Flores is apparently an unintended consequence of that decision, reflecting the difficulty presented to police officers by the Pena-Flores multi-factor exigent-circumstances standard. The Court is concerned about consent searches in such great numbers, particularly in light of the historic abuse of such searches and the coercive effect of a search request made to a motorist stopped on the side of a road. The Court, therefore, concludes that the current approach to roadside searches premised on probable cause places significant burdens on law enforcement without any real benefit to the public.

Although the Court determines that the exigent-circumstances standard set forth in Cooke and Pena-Flores is unsound in principle and unworkable in practice, it does not adopt the federal standard for automobile searches because it is not fully consonant with the interests embodied in Article I, Paragraph 7 of the State Constitution. The Court returns to the Alston standard, which states that the automobile exception authorizes the warrantless search of an automobile only when the police have probable cause to believe that the vehicle contains contraband or evidence of an offense and the circumstances giving rise to probable cause are unforeseeable and spontaneous. The Courts decision limits the automobile exception to on-scene warrantless searches, unlike federal jurisprudence, which allows a police officer to conduct a warrantless search at headquarters merely because the officer could have done so on the side of the road.

The Courts decision is a new rule of law to be applied prospectively. Therefore, for purposes of this appeal, Pena-Flores is the governing law. However, going forward, the exigent-circumstances test in Cooke and Pena-Flores no longer applies, and the standard set forth in Alston for warrantless searches of automobiles based on probable cause governs.


The judgment of the Appellate Division is AFFIRMED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion.

Editorial Assistance provided by Dhruv Patel. Mr. Patel currently attends Rutgers University and is participating in Kenneth Vercammens Winter Break Internship Program.

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Editorial Assistance Provided by Juhi Duggirala. Ms. Duggirala is participating in Ken Vercammens Fall Internship Program and currently attends Kean University.
Editors Note and Disclaimer:
All materials Copyright 2015. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
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Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Halls Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005

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