New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Evidence

In State v. Robinson, decided on May 1, 2017, the New Jersey Supreme Court considered the extent to which the “protective sweep” doctrine, which is an exception to the warrant requirement, applies to a police search of the passenger compartment of a vehicle during a traffic stop.  In Robinson, an officer observed a vehicle driving in a manner he considered unsafe in an area known for drug activity.  He stopped the vehicle, which contained four occupants, and asked the driver for his license and registration.  The driver, Robinson, misidentified himself, told the officer that his license was suspended, but provided proof of insurance and a registration.  One of the other occupants, Henderson, misidentified himself as the Robinson.  The remaining occupants correctly identified themselves and produced ID cards.  The driver stated his friend owned the vehicle, but did not know his name.  The officer learned from his dispatcher that the driver had an outstanding warrant and was known to carry weapons, and that Henderson had a “caution for weapons”.  The officer called for backup, and other officers arrived.  Defendant and Henderson were removed from the vehicle, arrested, and handcuffed.  Both were searched, but neither had weapons.  Some of the officers now present watched the defendant and Henderson , both of whom stood on the roadside and could not return to the car.  The other two occupants were detained, but not arrested.  One of them left her purse on the front passenger seat.  An officer then conducted a sweep of the car’s interior to check for weapons, at which time he touched the bottom of the purse and detected the outline of a gun.  He retrieved the gun, brought it to his vehicle, and told the other officers to arrest the remaining two occupants.  Defendant pleaded guilty, but later moved to suppress the gun.  The trial court denied his motion, but a majority of the Appellate Division panel found that the officer’s search of the car was not a lawful protective sweep.  One judge dissented.

The Supreme Court found that the surrounding circumstances created a reasonable suspicion that the vehicle contained a weapon, but the five officers present at the scene acted in a manner that eliminated the risk that any of the four occupants could immediately access a weapon.  Thus the protective sweep exception to the warrant requirement could not be used to salvage the search.

In discussing this conclusion in depth, the Court observed that warrantless searches are permissible only if they fall within one of the recognized exceptions to the warrant requirement.  The protective sweep exception, which derives from Terry v. Ohio, held that police may conduct an investigatory stop if there are “specific and articulable facts which, taken together with rational inference from those facts, reasonably warrant that intrusion.”  The Court also noted that Terry stops are narrowly tailored to allow a reasonable search for weapons.  Further, the United States Supreme Court applied the protective sweep exception to a vehicle in Michigan v. Long, and New Jersey adopted that standard in State v. Lund.  The standard was discussed further in State v. Gamble.  Taken together, Long, Lund and Gamble therefore set the standard for a valid protective sweep of a vehicle that has been stopped.  To justify such a search, the State must present specific and articulable facts that, when taken with the rational inferences from those facts, justify a belief that someone in the car is dangerous and may have immediate access to a weapon.  Protective sweeps of vehicles cannot be justified by the potential presence of a weapon; rather, the doctrine turns on imminent danger to the police when someone has access to a vehicle that may hold a weapon, or may be able to overpower or evade officers at the scene. Continue reading

New Jersey has among the most liberal criminal discovery rules in the country.  The State is obligated to provide defense counsel with a substantial body of material early in the case.  This is unlike many – if not most – other jurisdictions.  For example, in the federal system, significant amounts of discovery typically appear shortly before trial, leaving defense counsel with little time to review, analyze and investigate its content.  In New York County, the only discovery defense counsel may receive early in the case is a “People’s Voluntary Disclosure Statement”, which is a set of form questions that have been drafted and answered by the District Attorney’s Office.  (Basically useless.)  Not so in New Jersey – Here, defense counsel receives significant discovery up front, often without making a formal request.

What are defense counsel’s discovery obligations to the State?  They are obviously different because defense counsel has to be concerned with their client’s right to remain silent, protection of work product, and the fact that the State – not the defense – has the burden of proof.  In State v. Tier, decided May 2, 2017, the New Jersey Supreme Court clarified defense counsel’s post-indictment reciprocal discovery obligations concerning the oral statements of defense witnesses.  As the Court noted, this was an issue of first impression in New Jersey.

The facts are not complex.  Neighbors contacted the police because they believed that CL was having a physical altercation with her boyfriend, Tier.  The officers approached the house and heard a woman scream “Help, he’s trying to kill me.”  They kicked in the door and saw Tier on top of CL, strangling her.  A grand jury indicted Tier for kidnapping and attempted murder. Continue reading

In State v. Bacome, decided January 31, 2017, two Woodbridge detectives observed the defendant-driver and a passenger in a Ford Bronco.  The passenger, who was in the front seat, was later identified as the vehicle’s owner.  The detectives claimed that both men were known drug dealers.  They followed the Bronco to Newark, but lost sight of it in an area purportedly known for drug trafficking.  They then assumed that the Bronco would return to Woodbridge with drugs purchased in Newark.  They spotted the Bronco after returning to Woodbridge, and stopped it when they saw the passenger was not wearing a seatbelt.

Each detective approached the Bronco from opposite sides of the vehicle.  One detective stated that Bacome leaned forward and appeared to be reaching under his seat.  He immediately ordered Bacome out of the car.  The other detective then ordered the passenger from the car, and both men complied.  Each was questioned separately about their trip, and gave contradictory responses.  Since the passenger was now out of the car, the detective was able to to see rolled up paper shaped like a straw and a small piece of steel wool.  Both items were indicative of drug use.  The passenger consented in writing to a vehicle search.  The search yielded crack cocaine and other paraphernalia.  Both men were arrested.

The trial court denied defendants’ motion to suppress the drugs and other seized items, finding that the vehicle stop based upon the seatbelt violation was lawful.  Further, the removal of both men from the Bronco was also lawful because the detectives had reasonable and articulable suspicion of criminal activity. Continue reading

While investigating a noise complaint at an apartment complex, an officer observed James Legette standing on a common porch.  The officer approached and Legette partially opened a door leading into his area.  The officer then smelled burnt marijuana, entered the porch area, and identified himself as an officer.  As Legette began to walk away, the officer requested identification.  Legette responded that he had to retrieve his identification from the apartment, and the officer replied that he would have to accompany him.  Legette entered the apartment and the officer followed.  The officer noticed a bulge in Legette’s sweatshirt.

After entering the apartment, Legette presented his identification and the officer radioed a request to check for outstanding arrest warrants.  Legette them removed his sweatshirt and asked a woman who was in the apartment to place it in the bedroom.  The officer then seized the sweatshirt from the bedroom and took Legette, who appeared anxious, outside.  Obviously, the officer did not have a search warrant.

The arrest warrant check was negative, and Legette did not consent to a search of the sweatshirt.  The officer had a police dog sniff the sweatshirt.  A “metallic” noise could be heard when the dog moved the sweatshirt.  The officer then discovered a loaded handgun in the sweatshirt. Continue reading

Arnett Blake, his girlfriend Cindy Edwards, and his former girlfriend Terri Hannah, all attended a party in Vineland, New Jersey.  At some point, Edwards encountered Hannah in the bathroom.  While there, Hannah allegedly made rude remarks about Edwards.  Hannah then left the bathroom and told Blake that she should “F___ [his] girlfriend up”.  Later, when Edwards and Blake tried to leave the party, Hannah approached Blake with a closed fist.  Blake pushed her away, and security detained him.  Edwards was then going to say something, but saw Hannah holding a high-heeled shoe.  Hannah hit Edwards in the face with the shoe.  Blake saw Hannah hit Edwards.  When Hannah was escorted out, Edwards saw she was not wearing shoes.  Hannah and Edwards later exchanged communications on Twitter which included a Tweet from Hannah saying, among other things, “shoe to ya face bitch.”

Hannah was charged with simple assault and proceeded to trial in municipal court.  There, she testified that she approached Blake at the party because she heard rumors that she planned to hurt Edwards, and she wanted to be sure that Blake understood that this was untrue.  She also testified that she was escorted from the party when she started yelling, that she did not see Edwards that night, and that she never hit anyone with a shoe.  This testimony was somewhat supported by that of a security guard who removed Hannah from the party and instructed her to not return, but also did not see her hit anyone with a shoe.

The municipal judge found Hannah guilty and, after a trial de novo, a Superior Court judge did the same.  Hannah then appealed her conviction to the Appellate Division. Continue reading

On September 20, 1992, the police received reports that someone had fallen from a 12-story cliff near the New Jersey Palisades.  They arrived in the area and found Stephen Scharf, who told them they he and his wife, Jody, were having a picnic before going to a comedy club in New York City.  Scharf also stated that they were drinking in their car, and then went to a lookout area described as their “spot”.  Finally, Scharf told the police that while he was getting a blanket and more drinks from their vehicle, Jody fell from the rocks.  Jody’s body was later found, and her blood alcohol content was 0.12.  At that time, the medical examiner could not determine a cause of death.

Other facts undermined Scharf’s story.  Jody was seeking to divorce him, alleging that he was abusive and unfaithful.  Further, at some point within the past year, Scharf had taken out a $500,000 life insurance policy on Jody.  Because of such facts, the case was reviewed again in 2004.  Finding that Jody’s injuries (primarily to her face) were inconsistent with falling off a cliff, the medical examiner changed the cause of death to homicide.  The medical examiner further determined that Jody was thrown from the cliff, and had hit a tree as she dropped down.

During trial, a number of individuals who knew Jody testified that her husband was abusive, and that she was afraid of both him and heights.  Jody was also seeing a therapist who testified that Jody had previously refused to accompany her husband to the cliffs, and that she never visited the area before.  One witness also testified that Jody had informed her that Scharf had refused to sign certain papers related to the pending divorce, and that he would “see her dead” before signing them.  The couple’s son also testified that Jody did not want to go to dinner alone with her husband. Continue reading