August 19

Constructive Possession

Possession is to be construed strictly as signifying intentional control and dominion. State v. McCoy, 116 N.J. 293, 299 (1989). In McCoy, the court characterized it as “the ability to affect physically and care for the item during a span of time”. Id. Possession is separate from knowledge. A person may possess a thing unknowingly in which case he or she will not be criminally liable for possession. See, State v. Pena, 178 N.J. 297, 304-305 (2004). A person may also be in proximity and have knowledge that possession would be criminal but not possess it. As in State v. McCoy, the Court found an insufficient factual basis for a guilty plea where the Defendant, who was charged with possession of stolen property, merely placed his hands on a car driven by a friend, even though he knew the car to be stolen and he intended to ride in it. State v. McCoy, 116 N.J. at 303-304. Likewise, in State v. Moore, 330 N.J. Super. 514 (App. Div 1992), the State conceded that a mere passenger in a stolen car, even one who may have known the car was stolen, did not have possession of the car to sustain a conviction of receiving stolen property. Regarding drugs, the mere presence of drugs in a bedroom shared with others is insufficient proof of possession where nothing else tied the defendant to the drugs. State v. Milton, 225 N.J. Super. 514 (App. Div. 1992).

Constructive possession arises out of a person’s conduct with regard to the item in question. State v. Schmidt, 110 N.J. 258, 268 (1988). It does not require immediate control and dominion but the capacity to gain almost immediate physical control by direct or indirect means and the ability to affect the item during the time in question. Id. at 270. A person’s mere presence at a location where contraband is found is not determinative of constructive possession. State v. $36,560.00, 289 N.J. Super. 237, 261 (App. Div. 1996), certif. den. 147 N.J. 579 (1997). In State v. Shipp, 216 N.J. Super. 662, 664-665 (App. Div. 1987) the Court held that the vehicle driver was not deemed to be in possession of heroin found in a bag of the rear seat passenger, who was also his stepmother.

In State v. Zapata, 297 N.J. Super. 160, 177-178 (App. Div. 1997), certif. den. 156 N.J. 405 (1998) the defendant was convicted of second degree possession with intent to distribute cocaine after police found cocaine in the rear passenger seat and inside the air conditioning vents supporting “the inference that the narcotics were constructively possessed by all of the passengers because no one possessed the narcotics more than any other person.” Id. at 178 (emphasis added). The Zapata Court stressed that in finding constructive possession in that case, the “drugs located in the back seat were within the defendant’s reach”. Id. See also, State v. Hurdle, 331 N.J. Super 89 (App. Div. 1998). In State v. Schmidt, supra, 110 N.J. at 273 the Court held that where the drugs in question were in the actual possession of a co-defendant and no clear nexus over that person could be shown, as in the case of a courier and a drug dealer, there was no constructive possession.

June 22

Privacy Rights In Stolen Vehicle?

In State v. Taylor, the police stopped a vehicle which was later determined to be stolen. Thereupon, police search the vehicle and discovered two handguns, and later a gun magazine. Defendants filed a motion to suppress which was denied. Citing State v. Lugo, the court found there was no reasonable expectation of privacy as they were occupants of a stolen vehicle. On appeal, the argument was made that the lower court erred in concluding that an occupant of a stolen car had no expecttion of privacy even if he did not know the car was stolen and he reasonably believed that the driver was in lawful possession.

The Appellate Division said that for fourth Amendment purposes, a court had to make a two step inquiry. First, had the individual manifested a subjective expectation of privacy in the object searched? Second, was society willing to recognize that expectation as reasonable? Interestingly, the Court refused to adopt a bright line rule that there was no reasonable expectation of privacy as argued by the State. The New Jersey Constitutional standard only requires that an expectation of privacy be reasonable. So whether the Defendant had a reasonable expectation of privacy in the car required a fact-sensitive inquiry.

June 17

Can Police Search A Vehicle For A License

Terry v. Ohio, 392 U.S. 1 (1968) permits a police officer who has a reasonable suspicion that a person is armed and dangerous to conduct a limited pat down search for weapons. The key issue is whether a reasonable prudent person in the officers position would be justified in believing that the safety of the officer or other persons was threatened. See, State v. Roach, 172 N.J. 19, 27 (2002). The sole lawful purpose of a pat down search on less than probable cause is to ensure safety. See, State v. Smith, 155 N.J. 83, 91 (1989). However, even if a pat down search is justified at it’s inception, an officer may not reach into a Defendant’s pocket to seize an object if the officer is satisfied that it is not a weapon. See, State v. Clarke, 198 N.J. Super. 219 (App. Div. 1985). Indeed, in State v. Clarke, the Court clearly concluded that “police may not uncover items not thought to be weapons during a pat down search for weapons”. Id. at 227. In Minnesota v. Dickerson, 508 U.S. 366 (1993), the Supreme Court also held, upon frisking a suspect, an officer feels an item that clearly does not feel like a weapon, the officer may not seize it or further tamper with it to determine what that object is. Terry and its progeny only allow a pat down search for weapons, not identification. In Minnesota v. Dickerson , the officer felt a “small hard object wrapped in plastic” during the course of a “frisk” which turned out to be drugs. The Court suppressed the evidence, reiterating that the sole purpose of a Terry frisk was to discover items on a defendant that would render him “immediately dangerous”, not to search wantonly for any and all illegal items. Id.

Regarding the search of the passenger compartment, notwithstanding the motor vehicle exception to the warrant requirement, a police officer must still have “probable cause” to search a vehicle. See, State v. Wilson, 178 N.J. 7, 13 (2003); State v. Martini, 87 N.J. 561, 567 (1981). In State v. Lark 319 N.J. Super. 618, 625-627 (App. Div. 1999), aff’d o.b. 163 N.J. 294 (2000), the Court held where registration and an insurance card were produced, but the driver could not produce a license and gave a false name, the police had two options: detention of the driver for further questioning or arrest of the driver for operating a vehicle without a license, but NOT search the vehicle for identification unless there is probable cause to believe the car was stolen or that a further offense had been committed. While a police officer may stop a vehicle for a traffic infraction, they cannot convert a routine motor vehicle violation into an occasion for a full automobile search. See, State v. Pierce, 136 N.J. 184 (1994); See also, State v. Carty, 332 N.J. Super. 200, 204 (App. Div. 2000). In State v. Holmgern, 282 N.J. Super. 212 (App. Div. 1995), the court suppressed CDS evidence police located through their non-consensual search for vehicle documentation in a passenger’s duffel bag.

As a result, it is well settled that “{t}he exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion”. Wong Sun v. United States, 371 U.S. 471, 485 (1963). Accordingly, items illegally seized from the Defendant’s personal belongings or from the compartment of the vehicle, without a warrant and without probable cause, must be suppressed.

June 16

Underage Drinking/Driving And Blood Alcohol Below 0.01

39: 4-50.14 provides the following:

Any person under the legal age to purchase alcoholic beverages who operates a motor vehicle with a blood concentration of 0.01 or more, but less than 0.10, by weight of alcohol in his blood, shall forfeit his right to operate a motor vehicle over the highways of this State, or shall be prohibited from obtaining a license to operate a motor vehicle in this State for a period of not less than 30 or more than 90 days beginning on the date he becomes eligible to obtain a license or on the date of conviction, whichever is later, and shall perform community service for a period of not less than 15 or more than 30 days.

The plain reading of the Statute requires a blood concentration of 0.01 or more in order to sustain a conviction. The Statue goes on to emphasize this point by reiterating that a conviction may only be had by “weight of alcohol in his blood”. Therefore, the Defense contends that a plain reading of the Statute requires a blood alcohol concentration of 0.01 or more. This precludes a conviction based upon psycho-physicals, admissions, or any other proofs, other than a blood alcohol concentration verified by an Alcotest or any other State approved, such as a blood test, blood analysis.

A review of the legislative history further bolsters the Defense reading of the Statute, which refers to a blood alcohol concentration of 0.10 as the “statutory standard for designating a person as ‘driving under the influence’ of an alcoholic beverage”. See Assembly Judiciary, Law and Public Safety Committee Statement, Assembly, Nos. 1447 and 1426-L.1992, c. 189. Obviously, the Legislature was knowingly penalizing a “blood concentration of more than 0.01”. Indeed, the Legislative history goes on to clarify that:

the penalties provided in this bill are in addition to those the court is currently authorized to impose for the purchase, possession or consumption of alcoholic beverages for underage persons. The substitute includes a reference to R.S. 39-4-50 because it is not intended to preclude any effort to prosecute under that section for a possible DWI conviction.

Therefore, the Statute is strictly construed by the Legislature to impose an additional penalty for operating a motor vehicle with a blood alcohol concentration of more than 0.01, over and above the mere “purchase, possession or consumption of alcoholic beverages for underage persons”, but does not preclude “any efforts to prosecute under [39:4-50] for a possible DWI conviction”. Moreover, the Legislature is very clear as to the quantum of proof required under the Statute and that is a blood alcohol content of more than 0.01. There is nothing in the Statute or Legislative history to indicate that this particular sub-section of 39:4-50 can be proven by psycho-physicals, admissions, or otherwise. This is not a two prong Statute like 39: 4-50, rather a violation can only be proven by a blood alcohol concentration of more than 0.01.

An exhaustive search of Westlaw only revealed three (3) cases that touch upon 39: 4-50.14. Two of the cases, In re Broom, 193 N.J. 36 (2007) and State v. Watkins, an unpublished Appellate Division opinion, merely reference the statute with any further elaboration. State v. Chun, 194 N.J. 54, 74 (2008) also references 39: 4-50.14 but recites the statute and delves into the purpose behind the statute. Indeed, a reading of Chun could be interpreted to support the position advocated herein. Chun recites the exact language of the statute and goes on to quote the legislative purpose behind the statute, that being “to establish penalties for any driver under the age of 21 who is ‘found to have consumed an alcoholic beverage’” Id. at 73. By reciting the exact language of the statute and concluding that a person who has a blood alcohol concentration of more than 0.01 is “found to have consumed an alcoholic beverage” supports the contention that in order to satisfy the statute, a blood alcohol concentration of 0.01 is necessary to support a conviction.

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