Selected by Kenneth Vercammen, Esq.
1. Defendant does not have burden to prove discrimination in stop . State v. Segars 172 NJ 481 (2002). The Municipal Court of Ridgewood erred in ruling that the defendant in this case, who was charged with operating a motor vehicle while his driving privileges were suspended, failed to sustain his burden of proving discriminatory targeting on the part of the officer, who ran a Mobile Data Terminal check on the defendant¹s license plate.
2. Phone call creates Jurisdiction in DV. A.R. v. M.R. 351 NJ Super. 512 (App Div. 2002) The New Jersey courts may exercise personal jurisdiction over a defendant who subjected his victim to domestic violence in another state, threatened to pursue her if she left him, and attempted to contact her in New Jersey by telephone when she came here for safety. Source: 11 NJL 1259
3. Stalking can be putting secret camera in estranged wife¹s bedroom. H.E.S. v. J.C.S. ___ NJ Super. __ (App Div. A-719-00T3, Decided March 21, 2002). Plaintiff¹s proof regarding the hidden surveillance equipment in her bedroom does not satisfy the elements of harassment because it does not establish that the defendant had the purpose to harass and to alarm or seriously annoy her; however, it does establish the predicate offense of stalking because it constitutes a course of conduct that would cause a reasonable person to fear bodily injury, and the trial judge properly entered the final restraining order based on the predicate offense. Source: 268 NJL 49
4. Sup MT granted where DV hearing officer did not take details. State v. Johnson 352 NJ Super. 15 (App Div. 2002). Since the purpose of a search warrant issued pursuant to N.J.S.A. 2C:25-28j is to protect the victim of domestic violence from further violence, not to discover evidence of criminality, ³reasonable cause,² as opposed to ³probable cause,² is the barometer by which the appropriateness of it¹s issuance is to be judged; the judge must find reasonable cause to believe that: (1) the defendant has committed an act of domestic violence; (2) he possesses or has access to a firearm or other weapon delineated in N.J.S.A. 2C:39-1r; and that (3) his possession or access to the weapon poses a heightened risk of injury to the victim-- additionally, a description of the weapon and its believed location must be reasonably specified in the warrant. In this case, although there may have been sufficient facts and information available to satisfy the reasonable-cause requirements outlined here, the procedures were insufficient to establish their existence in the record; plaintiff testified before the Domestic Violence Hearing Officer (DVHO), not the Family Part Judge, who received no written summary, transcript or affidavit that would enable an analysis of whether there was reasonable cause to believe that defendant, her husband, had access to a handgun and, if so, whether that access posed a danger or heightened risk of injury to plaintiff, and the judge did not ³state with specificity the reasons for and scope of the search and seizure authorized by the order,² N.J.S.A. 2C:25-28j; even in the record before the DVHO there is an absence of any testimony by plaintiff that she was in fear of defendant or, more particularly, that his access to a weapon created additional risk of harm to her; accordingly, the Law Division properly granted defendant¹s motion to suppress the marijuana that the police found in his bedroom pursuant to the search (which revealed no gun). Source: 168 N.J.L.J. 1295
5. School can¹t require drug testing of chess club students. Joye v. Hunterdon Central 353 NJ Super. 600 (App Div. 2002). The United States Supreme Court held in Earls that the random testing of students involved in extracurricular activities does not violate a privacy interest recognized by the Federal Constitution, and, in the absence of any support in the history, language, or intent of the New Jersey Constitution, there is no basis for concluding that it warrants a different approach; because the parties¹ briefs developed only constitutional issues, the matter is remanded to permit plaintiffs to proceed on any ground not reached by the trial judge, who should also consider inviting the Attorney General to participate in deciding whether a local board of education has the authority to implement drug testing in the absence of legislation permitting it or statewide standards promulgated by the Legislature or the Department of Education. Source: 169 N.J.L.J. 745
6. 4th Amendment does not require police to advise bus passenger of right to refuse search. US v. Drayton ___ US __(US Supreme Court, No. 01-631, Decided June 17, 2002). The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches. Fourth Amendment permits officers to approach bus passengers at random to ask questions and request their consent to searches, provided a reasonable person would feel free to decline the requests or otherwise terminate the encounter, id. at 436. The court identified as ³partially worth noting² the factors that the officer, although obviously armed, did not unholster his gun or use it in a threatening way, and that he advised respondent passenger that he could refuse consent to a search. Relying on this last factor, the Eleventh Circuit erroneously adopted what is in effect a per se rule that evidence obtained during suspicionless drug interdictions on buses must be kept suppressed unless the officers have advised passengers of their right not to cooperate and to refuse consent to a search. Source: 168 N.J.L.J. 1272
7. Exigent circumstances required private warrantless search of home. Kirk v. Louisiana ___ US __ (US Supreme Court, No. 01-8419, Decided June 24, 2002). Court of Appeals¹ conclusion that warrantless search of a home was constitutional, without deciding whether exigent circumstances were present, violates Us v. Payton doctrine that the ³firm line at the entrance to the house...may not reasonably be searched without a warrant.² Source: 169 N.J.L.J. 236
8. Eviction permitted in public housing if family member engages in drug activity. Dept. of Housing v. Rucker ___ US __(US Supreme Court, No. 00-1770, Decided March 26, 2002). Statute¹s plain language unambiguously requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knew, or should have known, of the drug-related activity. Source: 168 N.J.L.J. 58
9. Expert testing found unreliable regarding police interrogation. State v. Free 351 NJ Super. 205 (App Div. 2002). The premises of defendant¹s expert, a social psychologist, about the effects in general of police interrogation techniques on the credibility of confessions have not gained general acceptance in other jurisdictions and, therefore, the expert opinions offered in his report are inadmissible as not scientifically reliable, and the trial court erred in admitting them; also, the proposed evidence failed to satisfy N.J.R.E. 702¹s requirement that the nature of offered expert testimony must be such as ³will assist trier of fact to understand the evidence or to determine a fact in issue.² Source: 168 N.J.L.J. 69
10. Civil- No reliable scientific foundation that low impact cannot cause herniated disk. Suanez v. Egeland 353 NJ Super. 191 (App Div. A-3302-00T1, Decided July 11, 2002). There is no reliable scientific foundation for a purported expert opinion testimony by a biomechanical engineer that a low-impact automobile accident cannot cause a herniated disk.
11. Evidence suppress where entry unjustified. State v. Lashley 353 NJ Super. 405 (App Div. 2002). The evidence must be suppressed and the convictions based on it reversed here, where cocaine and packaging paraphernalia were observed by the police upon their warrantless entry of defendant¹s dwelling, which was not only unlawful in the absence of both probable cause and exigent circumstances but was unannounced and accomplished with the aid of a steel ram, a method of entry unjustified in the record; the subsequent application for a search warrant referred to the earlier observations, and the warrant, pursuant to which additional evidence was seized, must be invalidated under the State Constitution, if not the Federal, because of the unlawful warrantless forced entry; Chaney is distinguished. Source: 169 N.J.L.J. 557
New law- DWI S of L moved to 90 days. P.L. 2002, c.57 Extends time to file complaint for drunk driving from 30 to 90 days.