Author: jay

A common question is whether police can approach a car and detain the occupants for questioning. The question plays out in reality when police subsequently find contraband, such as marijuana, in a motor vehicle. Was the search legal and valid, or can the marijuana be suppressed as evidence obtained in violation of my clients rights?

Two principal legal issues in this scenario are (1) did the police interaction with defendant rise to the level of an investigative detention; and, (2) was there a reasonable and articulable suspicion to justify any such detention. In other words, did this stop rise beyond a field inquiry to an investigative detention. See the New Jersey Appellate Division decision State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div.), certif. denied, 172 N.J. 178 (2002).

The important distinction in police conduct is that a constitutionally permissible field inquiry occurs when an officer questions a citizen in a conversational manner that is not harassing, overbearing, or accusatory in nature. State v. Nishina, 175 N.J. 502, 510 (2003). On the other hand, when the police encounter results in a restriction on the person’s freedom of movement, the encounter rises to an investigatory stop. State v. Elders, 192 N.J. 224, 245 (2007). These issues arise from the Fourth Amendment to the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, which provide for “the right of the people to be secure in their persons…against unreasonable searches and seizures.”

An investigative stop, or detention, can occur even if the police interaction takes place when the citizen is already stationary, such as when a citizen is seated in a parked car. In considering the totality of circumstances involving police interactions with persons in parked cars, courts have specifically considered the manner in which the police approach a vehicle and the subsequent police conduct. See State v. Ellis, No. A-0235-14T2 (App. Div. April 9, 2015). The Ellis Court reviewed Professor LaFave’s summary on police contact with persons seated within a parked vehicle.

The mere approach and questioning of a person seated within parked vehicles does not necessarily constitute a seizure. However, the encounter becomes a seizure if the police action is of the type one would not expect in an encounter between two private citizens – boxing the car in, approaching it on all sides by many officers, or use of lights as a show of authority. That type of conduct may convert the event into a Fourth Amendment seizure. See Ellis; Wayne R. LaFave, Search and Seizure, 9.4(a) at 594-99 (5th ed. 2012).

I recently quoted a Police Officer in a case where he wrote in his Police Report “I then exited my vehicle to investigate.” He was on scene, undercover, in an investigatory detail. This was not a chance interaction resulting in a happenstance field inquiry. The Officer’s used their vehicle to block the individual’s car so that he could not move it at all, approached his car on both sides and beamed their flashlights into each of the rear view mirrors such that he was blinded and intimidated by their authoritative presence. In view of all the circumstances, a reasonable person would not feel free to leave – nor could they!

Questions that pre-suppose criminal conduct may also convert an otherwise benign field inquiry into an investigative stop, including the question “what are you doing here.” State v. Costa, 327 N.J. Super. 22, 31 (App. Div. 1999).

Facts matter. Police are allowed to conduct field inquiries and inquire as to general matters. However, if they intend to restrict a person’s ability to move, there must be a warrant or some exception to the requirement that they obtain a warrant from a Judge. Those exceptions usually fit within the legal term probable cause – did the police have probable cause, a well grounded suspicion, to believe that a person has committed or is committing an offense? The concept of what qualifies as probable cause has been the subject of many court decisions. Essentially, there must be more than a mere suspicion, and the Courts look to the totality of the circumstances. If a mushroom cloud of sweet smelling herb emanates from your vehicle as you say, “What’s up Bro” to a Police Officer, my defense might be focused on minimizing your sentence!

If you have a legal question regarding your 4th Amendment rights, or any other legal concern, please call the Law Office of Jay Weinberg.

I consulted with a 20 year old man and his father in my New Brunswick NJ law office recently. They’ve used me as their lawyer in the past for a variety of matters. Attorney damage control – criminal law/juvenile consultation. Someone “friended’ him on Facebook. She messages him and they have a dialog. It turns sexual. Over time she suggests Skype. She is very sexy and alluring. Eventually they Skype. She engages in sexual activity and encourages him to do the same. He does. She is filming Skype with a separate camera. She then sends him a message, “listen to me very well, remain calm or I will mail the video to your family:..” She has friended at least 20 of his friends and family at this point. She then writes, ” remain quiet or I will ruin your life – you respond quickly to my questions” and she demands a money wire transfer in exchange for deleting the video. She now has a videotape of him masturbating, and she captions it with his name and the comment ” …. porn with a young girl.” While I am looking at his Facebook page a notice appears that this person has become friends with another man, and then another and another. I look at one of those men’s Facebook pages and he has a high executive position at a major corporation, with seemingly no relationship to her. I track him down, explain who I am and as we are talking she messages him, you look sexy. Meanwhile she messages my client demanding he wire sums into an offshore account. She has his job information and contacts, his schools, his life. I contacted the Prosecutors Office regarding a criminal case and then engaged in damage control. With his Father here, we decided she can embarrass him, but she can not ruin his life. He must allow that consequence, and he wont. He will endure the mistake and the embarrassment, but the sooner he allows himself the right to have been conned, and to have made this mistake, his life will move forward. We draft a reply to her, carefully, and she never posted the video, seemingly moving on to other targets. It appears she is in Europe, and the local Middlesex County, New Jersey Prosecutors in New Brunswick do not pursue this criminal case. When I was young you made a friend not by a click of a button, but by support, togetherness and a deep connection. Facebook may have changed the definition of the word friend. Be very careful.

I have dealt with a number of Cases where clients have been charged with the very serious offense of DWI, though the facts subsequently prove they had not actually operated a motor vehicle as operation is defined under NJ Law for a conviction for DWI.

New Jersey Case Law is clear that keys in the ignition, even with the engine running, is not a per se violation of New Jersey’s DWI Law. The leading cases on operation explore surrounding factual circumstances to determine whether an individual was operating a car and have concluded in some instances an individual in a car with the ignition running is not necessarily operating the car, and in some instances may be, at least by a preponderance of the evidence to allow an arrest. See generally, State v. Daly, 64 N.J. 122 (1973), State v. Mulcahy, 107 N.J. 467 (1987). (Where the defendant’s car was also illegally parked on a sidewalk and a witness observed the defendant drive.)
Note too actual operation of a motor vehicle is not required for conviction under N.J.S.A. 39:4-50. State v. Wright 107 N.J. 488, 497 (1987). New Jersey Courts have frequently reviewed operation cases, and Daly and Mulcahy are the two oft-cited Supreme Court decisions on point. The Supreme Court in Daly considered the operation element where the defendant was sleeping in his parked car behind a tavern in a reclined driver’s seat with the motor running to provide heat. The Court found requisite intent to operate had not been proven, holding “evidence of intent to drive or move the vehicle at the time must appear.” Id. at 125. Other relevant facts were the defendant was in the tavern until closing, had to leave, it was winter; he entered his car and turned on the heat to keep warm, and went to sleep. There was no way to find intent to drive. The Mulcahy Court held that “when one enters a car and puts one’s self in the driver’s seat, that person is in control of the car and an intention to drive the vehicle, combined with physical movements to put the car in motion, constitutes operation.” Id. at 479.
Driving is not operating a car by clicking a key fob to gain access to groceries in a trunk, or engaging the ignition to obtain heat on a cold evening.

However, be careful. Separate your drinking from your driving. It has happened that people have been caught up in unusual circumstances and been charged with DWI. Even proof of intent to drive, with no observation of actual driving, can result in conviction.

A mother left her 19 month old child in a locked car, windows slightly open, engine running, while she quickly went into a Dollar Tree Store.

The NJ Appellate Division affirmed the Division of Child Protection and Permanency (previously, Division of youth and family services) decision that the incident required the Mother’s inclusion in the Child Abuse registry. The mother had no prior incidents, and by all accounts was a fine, stay at home mother with other children who reported no neglect, and no other neglect was found during the course of the investigation. Her husband described her as a good and caring mother. The incident triggered the State to also seek care and custody of all four children, which was resolved in favor of the family four months later.

That must have been a brutal four months for the family, facing separation and the children’s placement in foster homes? The Mother faced criminal like prosecution, and the family was subject to an arduous process for many years, ultimately having the second highest Court in NJ find culpability.

The Appellate Division decision is here

So, can you quickly run into your house to get your cell phone, while your child remains in a car seat?  Can your 5 year old, or 7 year old, play in the backyard while you go back inside to get an item for your outdoor dinner? As you read through the various scenarios presented in the opinion, what factors must you consider in day to day activities? Note too, a mother who did almost the same thing, but was getting medicine for the child left in the car who was sick, was found to not have violated the law, as it was an emergency.

The Appellate Division stated:

This appeal presents only a legal question: whether the material facts support a finding of abuse or neglect. That question is governed by N.J.S.A. 9:6-8.21(c)(4), which states that an “abused or neglected child” means a child under the age of eighteen years:
whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]

And: “we need not describe at any length the parade of horribles that could have attended Eleanor’s neglect in concluding, as did the Director, that the act of leaving a child alone in a motor vehicle with its engine running, to enter premises 150 feet away, is a reckless act enveloped by the standard contained in N.J.S.A. 9:6-8.21(c)(4)(b).”

While I do not disagree with the decision as perhaps the only conclusion they could reach, and this was a public location, which is part of the law in certain States, what “parade of horribles” can happen whenever a child is alone, in a bedroom playing, in the back yard or riding their bikes?

Consider during a backyard cookout, you go inside the house for a few minutes, to gather condiments, and a young child is injured outside, and you let the staff at the hospital know, yes I stepped away. Soon after your a defendant, with the State seeking custody? Talk about parade of horribles!

It seems the moral of this story is never leave a child in a car, even to “just” run back inside the house to get a scarf, or cell phone, or book bag, to avoid any possible consequential “parade of horribles,” including the theoretical injuries a child could sustain, and the real threat of prosecution.

 

 

 

 

This week the New Jersey Supreme Court decided that the Alcotest is still reliable as a device utilized in DWI prosecutions. Some New Jersey lawyers felt that the manufacturer and the State had not complied with a prior Supreme Court ruling, and such non- compliance rendered the Alcotest unreliable. The Supreme Court disagreed.

While the machine may be reliable, there are still defenses in that in any particular drunk driving case, the Alcotest may have been operated incorrectly. The recent decision does not creat new, more difficult burdens for defendants.

I have had the Alcotest suppressed, thrown out, in many DWI cases, because it was either operated incorrectly or it wasnt operating correctly at the time my client was required to take the breath tests. It takes a careful analysis to determine such defiencies.

The Order from the Supreme Court.