Don't be smoking pot when you open the door

Warrantless Search Legal Where Suspect Answers Door With Joint

Smoking pot while answering one's front door, then tossing the evidence when seeing it's the police, creates probable cause to search under the plain-view and exigent-circumstances doctrines, the state Supreme Court says.

The justices reversed an Appellate Division ruling that suppressed drug evidence found in the warrantless search in State v. Walker, A-49-11.

They stressed it was the defendant's own guilty behavior that gave the police authority. "We do not suggest that, had no one come to the door, the mere smell of marijuana would have justified a forced entry into defendant's home," the court said.

Two Newark policemen came to Rashad Walker's Riverview Court apartment, part of a public housing complex, on a tip from a confidential informant that he was selling drugs. They could smell marijuana smoke. One officer was dressed in plain clothes in order to attempt to make a purchase. When Walker opened the door and saw the second officer's badge, he threw the joint into his living room and attempted to shut the door. The officers gained entry. In plain view, they found 22.4 grams of marijuana, 27 packets of heroin, 4.2 grams of cocaine, a scale and a razor.

After Essex County Superior Court Judge Stephen Bernstein denied his motion to suppress, Walker pleaded guilty to multiple drug offenses but preserved his right to appeal the motion denial. The Appellate Division reversed.

At the Supreme Court, the state relied heavily on the reliability of the informant, who had provided valuable tips on at least 10 prior occasions.

The court said that was not enough to justify a warrantless search, but Walker's actions were.

"Although the information contained in the tip was uncorroborated, by the time the officers knocked at the door of defendant's apartment, subsequent events, created by defendant's own actions, established probable cause and exigent circumstances which justified an entry into defendant's apartment," wrote Judge Ariel Rodriguez for the court.

"Clearly, defendant must have been aware that the officers knew he was committing an offense," Rodriguez said. And once he threw the joint back into the living room and tried to shut the door, the officers "were compelled to act to prevent defendant from disposing of the marijuana cigarette, or eluding the officers."

Judge Mary Catherine Cuff did not participate in the otherwise unanimous decision.

Assistant Deputy Public Defender Amira Scurato, Walker's attorney on the appeal, says the ruling, being limited to its facts, "doesn't change the overall landscape regarding privacy in one's own house," she says.

New Jersey Law Journal 4/10/13

Gun Control: Update on gun laws and violent video gaming

Task Force on Violence Urges More Controls on Guns and Violent Videos

A task force set up by Gov. Chris Christie after last December's mass shooting at Sandy Hook Elementary School recommends moderate changes to New Jerseys' gun laws, restriction of sales of violent video game and enhancement of school security programs in an effort to curb violence.

The New Jersey SAFE Task Force on Gun Protection, Addiction, Mental Health and Families and Education Safety released a set of 50 recommendations on Wednesday that it said were "aspirational in their reach and practical in their implementation."

The most awaited recommendations from the task force, chaired by former Attorney General and Supreme Court Justice Peter Verniero and former Attorney General John Degnan, concerned further restrictions on sale, purchase and ownership of firearms.

The task force said the state's existing gun laws are in need of some updating, but did not urge major changes. Gun control advocates concede that New Jersey already has the second most restrictive gun laws in the United States, behind only California.

"The Newtown tragedy has given a new sense of urgency to a longstanding debate on how best to prevent senseless gun violence," the task force said in its 95-page report. "Public officials and concerned citizens are rightly scrutinizing state and federal gun laws in the hope of finding the optimal balance between the need to restrict access to firearms and the right of individuals to keep and bear arms under the Second Amendment.

"We need to make certain, however, that new or revised gun laws are carefully vetted, and are not only well-intentioned but are actually likely to reduce the risk of gun violence."

Chiefly, the task force recommends that the state take steps to:

• outlaw "straw purchases" in which someone buys a firearm for someone who otherwise would be ineligible to own one,

• conduct background checks of gun buyers,

• screen prospective gun purchasers for mental health issues if there are signs of mental illness,

• restrict firearm ownership for those who have been committed to mental institutions,

• further enhance criminal penalties for all crimes committed with a firearm,

• require frequently updated firearm purchaser license with photographs, and

• permit gun owners to be held civilly liable if they fail to take precautions in storing their weapons and those weapons are used to kill or injure another party.

The task force said it could not reach a consensus on whether there should be further restrictions on the size of ammunition magazines, currently limited in New Jersey to 15 rounds.

As for violent video games, options are somewhat limited because the U.S. Supreme Court's ruling in Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011). There, the court said video games are protected by the First Amendment and struck down a California law aimed at banning the sale of certain violent video games to minors without parental supervision.

"With regard to the research studies finding a causal link between virtual violence and actual violence, the Supreme Court found that those studies were not compelling. Indeed, the Court expressed that the studies 'do not prove that violent video games cause minors to act aggressively,' but merely suggest some correlation and suffer from significant flaws in methodology. Thus, absent stronger proof of causation, the Court would not take video games outside of the protection of the First Amendment," the task force said.

"Thus, the current state of the law regarding violent media further informs this Task Force's conclusion that there is currently no consensus with regard to the causal effect of violent media on real-world behavior. That said, it still appears that exposure to violent media can be a risk factor."

The task force recommends that the Legislature examine whether minors to be accompanied by an adult when buying video games with an "M," or mature, or AO, adults only, rating, and whether merchants can require buyers to present some form of identification when purchasing M or AO video games.

Lastly, the task force said law enforcement and school boards need to take steps to ensure that individual schools are made more secure, and that law enforcement continue with efforts to reduce gang violence in urban areas.

Christie is expected to issue a set of his own recommendations, based on the report, within seven to 10 days.

Said Assembly Speaker Sheila Oliver, D-Essex: "The Assembly will certainly review this report, but one thing that's immediately clear is that many of the themes behind the 22-bill Assembly gun violence prevention package can be found in this report.

"It's a shame Gov. Christie didn't openly embrace and support the Assembly package. Had he done so, those bills could have been law by now. We continue to hope the governor agrees to support the Assembly plan, along of course with any other good ideas that are being proposed by this task force."

The Senate may consider the Assembly bills in the coming weeks.

If you would like to download the document click here

New Jersey Law Journal 4/12/13

 

 

 

Criminal Law - A Juvenile Doesn't Have the Right to a Jury Trial

As far as one Monmouth County judge is concerned, New Jersey isn't ready to join the nearly half the states in the union that allow juveniles facing criminal-type charges to have their cases heard by juries. In a decision published April 27, Superior Court Judge Eugene Iadanza held a 1971 U.S. Supreme Court ruling that found no constitutional right to a jury trial is still good law. "The fact that a minority of our sister states have chosen to deal differently with the issue under their state constitutions does not require this State to follow in their footsteps," Iadanza wrote in State in the Interest of A.C., FJ-13-1392-11W.

JUVENILE FACING PUNITIVE CONSEQUENCES HAS NO RIGHT TO JURY TRIAL

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Does Megan's Law Apply for Juvenile Offenders?

Application of Megan's Law to a juvenile case does not give a minor the right to a jury trial, the Appellate Division ruled on Wednesday. In a published opinion, Interest of A.C., A-5308-10, the court reaffirmed the constitutionality of the juvenile justice code's jury-trial prohibition. In so doing, the judges rejected defense claims that Megan's Law — which can brand a minor as a sex offender for life — has shifted juvenile justice from rehabilitation to punishment, thus triggering a right to a jury. The appeals court said that "whether Megan's Law should apply to juveniles, either at all or in the manner that it currently does, is a policy decision to be addressed by the Legislature."

 

MEGAN'S LAW FACTOR IN JUVENILE CASE DOES NOT CREATE RIGHT TO JURY TRIAL

 

NJLJ 2/16/2012

 

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The Waiver Statute & Juveniles - Criminal Update

CRIMINAL LAW AND PROCEDURE — JUVENILES — WAIVER STATUTE

14-2-2626 State in the Interest of V.A., App. Div. (Baxter, J.A.D.) (24 pp.) We reversed the denial of the state's motions to waive four juveniles to the Law Division, because after finding probable cause, the judge impermissibly allowed his personal opinions and views, and his antipathy to the waiver statute, to color his evaluation of whether the prosecutor's waiver decision constituted a patent and gross abuse of discretion. We also concluded that the judge erred when he considered factors not articulated in the attorney general's waiver guidelines.

NJLJ 6/23/2011

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Law Decriminalizing Sexting by Minors Nearing Approval

LAW DECRIMINALIZING SEXTING BY MINORS NEARING FINAL LEGISLATIVE APPROVAL

New Jersey is a step away from creating an educational alternative to criminal prosecution of juveniles who transmit explicit photos of themselves or other minors over the air waves — otherwise known as "sexting." The measure, A-1561/S-2700, would call for the attorney general and the courts to develop a diversionary program, in view of testimony that teenagers who send out the images do so out of a psychological vulnerability, not a criminal mindset. The Senate version was reported favorably, by a 5-0 vote, by the Law and Public Safety Committee on June 13 and then referred to the Senate Budget and Appropriations Committee. Once the bill clears the Senate, it will head for the governor's desk, since the Assembly approved its version in a 78-0 vote on March 14.

NJLJ 6/22/2011

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