June 16

Exigent Circumstances To Search A Vehicle

The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect individuals against unreasonable searches and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). “[O]ur constitutional jurisprudence expresses a preference that [police officers] secure warrants issued by neutral and detached magistrates before executing a search ….” State v. Frankel, 179 N.J. 586, 597-98, cert. denied, 543 U.S. 876, 125 S.Ct. 108, 160 L. Ed.2d 128 (2004). A warrantless search is presumed to be unlawful unless it falls within one of the recognized exceptions to the warrant requirement. State v. DiLoreto, 180 N.J. 264, 275-77 (2004). “Those exceptions are based on the recognition that under certain exigent circumstances a search without a warrant is both reasonable and necessary.” Frankel, supra, 179 N.J. at 598. One exception to the warrant requirement is the automobile exception, which “applies only in cases in which probable cause and exigent circumstances are evident, making it impracticable for the police to obtain a warrant.” State v. Cooke, 163 N.J. 657, 671 (2000). The State has the burden to demonstrate that the search “falls within one of the few well-defined exceptions to the warrant requirement.” State v. Maryland, 167 N.J. 471, 482, 771 A.2d 1220 (2001) (internal citations omitted); State v. Patino, 83 N.J. 1, 7, 414 A.2d 1327 (1980). The State must demonstrate by a preponderance of the evidence that there was no constitutional violation. State v. Wilson, 178 N.J. 7, 13, 833 A.2d 1087 (2003).

In contrast to the federal precedents, New Jersey has refused to permit warrantless searches of motor vehicles in the absence of some exigency; reduced privacy expectations without exigent circumstances cannot justify a warrantless search based on probable case. The New Jersey Supreme Court has concluded that exigent circumstances must exist before the police will be allowed to conduct a warrantless search of a motor vehicle based on probable cause. State v. Dunlap, 185 N.J. 543, 549-551 (2006); State v. Wilson, 178 N.J. 7, 13 (2003), State v. Cooke, 163 N.J. 657 (2000).

Exigent circumstances may exist if “unanticipated circumstances that give rise to probable cause occur swiftly.” Cooke, supra, 163 N.J . at 672. They may also exist if an element of surprise has been lost, a vehicle contains contraband, a confederate is waiting to move the evidence, or where the police would otherwise had needed to call in reinforcements to guard the motor vehicle in order to obtain a search warrant. State v. Colvin, 123 N.J. 428, 434-35 (1991).

In State v. Pena-Flores, 198 N.J. 6, 28-31, 30-33 (2009), the Court examined whether there was sufficient exigencies to justify the vehicle search, explaining that exigency is determined case-by-case, based on the totality of the circumstances. In Pena-Flores’s, defendant’s vehicle was stopped for a traffic violation at which time the officer smelled marijuana and thus has probable cause to believe the vehicle contained contraband. There, the officers ordered both the defendant and the passenger out of the vehicle, and conducted pat-down searches of both defendant and the passenger. Neither had contraband on his person. At that point, unable to see in the vehicle because of the tinted windows, one officer entered the passenger side of the vehicle and began his search. Moments later, he uncovered two clear plastic bags on the front side passenger floor. The defendant and passenger were thereafter placed under arrest, and the officers continued a search of the vehicle in which they unveiled a 9 millimeter handgun in the child safety seat located in the backseat of the vehicle, along with large plastic bags containing over one hundred and eleven clear plastic bags of suspected marijuana. The Court found exigency where the stop was unexpected, in response to an aggressive traffic maneuver, the vehicle’s windows were heavily tinted, preventing the officer from looking for weapons or contraband from outside the vehicle, the defendant and passenger were removed from the vehicle but not placed under arrest or in the police car, and the relation of police to suspects was two-to two, with no available backup. It should be noted that the court in Pena-Flores noted the importance of the fact that the officers could not look for weapons or contraband from outside the vehicle because the windows were heavily tinted. This is not the case here.

Compare State v. Nishina, 175 N.J. 502 (2003), where only a single officer was present at the scene when a vehicle was searched based on exigent circumstances. The New Jersey Supreme Court concluded that there was an exigency because one officer could not guard the car and obtain a warrant at the same time. And compare State v. Baum, 393 N.J. Super, 275, 283, 291-292 (App. Div.), leave to appeal granted 192 N.J. 473 (2007), where the court found exigent circumstances to search for drugs where the driver admitted drugs were in the car and for weapons based on the location of vehicle, the time of night, the fact that two other passengers were in vehicle and only two officers were on the scene.

In a more recent case, State v. Ricardo Manuel Ortiz and Arnaldo A. Ortiz, unpublished opinion, App. Div. Docket No. A-4026-08T4 (December 28, 2009), the Appellate Division affirmed the suppression of evidence obtained from the glove compartment of the defendant’s vehicle. Although the stop of the vehicle for having too-darkly tinted windows was justified, and the smell of unburned marijuana gave the police “a well-grounded suspicion that criminal activity was afoot,” the court concluded that sufficient credible evidence existed in the record to support the motion judge’s finding that the police lacked exigency to search the glove compartment without first obtaining a warrant, either by telephone or in person.

In Ortiz, Defendant was pulled over for operating a vehicle which had heavily tinted windows. Upon approaching the vehicle, the officers detected the odor of “raw” marijuana. The Defendant’s credentials were requested, and the officer revealed that the Defendant had an outstanding warrant for his arrest, not the case herein. The defendant was thereafter placed in custody, and the officers questioned the passenger of the vehicle, at which time the smell of marijuana became stronger. The passenger was requested to exit the vehicle, at which time the one of the officers searched the glove box at which time he found a large plastic bag which he later discovered contained marijuana, and cocaine. The court held that the facts were lacking any indication that any delay occasioned by obtaining a warrant to search the car would have jeopardized either the officers’ safety or the integrity of the evidence. The Officer, upon opening the glove compartment and observing the bag, did not believe the bag contained a weapon of any kind. Even if the Officer lawfully opened the glove compartment, there would have been no justification under the State’s theory for further searching the plastic bag, which did not appear on its exterior to contain any weapon therein. Ultimately, the Court in Ortiz held that while the officers had probable cause to believe that a criminal offense had been committed based on the smell of the marijuana alone, no exigency was present.

June 15

Plain View Searches

The plain view doctrine was initially articulated in Coolidge v. New Hampshire, 403 U.S. 443 (1971), and, while it is one of the most often cited, it is probably the least understood doctrine in the law of search and seizure. Justice Stewart, in an opinion joined by a plurality of the Supreme Court, cautioned the legal community about the indiscriminate use of the term Plain View:

It is well-established that under certain circumstances the
Police may seize evidence in plain view without a warrant.
But it is important to keep in mind that, in the vast majority
of cases, any evidence seized by the police will be in plain
view, at least at the moment of seizure. The problem with
the plain view doctrine has been to identify the circumstances
in which plain view has legal significance rather than being
the normal concomitant of any search legal or illegal.

Coolidge at 443.

In order for the Plain View Doctrine to apply, the observation of the item must be made from a permissible vantage point, its discovery must be inadvertent, and it must be immediately apparent to the police that the item in question is contraband or evidence of a crime. Id. Plain View alone does not justify an initial intrusion to make a warrantless search of evidence. Probable cause may be established by Plain View, but before police can intrude on the reasonable expectation of privacy, they must either have a warrant or exigent circumstances.

Plain view alone is never enough to justify the warrantless
seizure of evidence. This is simply a corollary of the familiar
principles discussed above, that no amount of probable
cause can justify a warrantless search or seizure absent
exigent circumstances. Incontrovertible testimony of the
sense that an incriminating object is on premises belonging
to a criminal suspect may establish the fullest measure of
probable cause. But even where the object is contraband,
this Court has repeatedly stated and enforced the basic rule
that the police may not enter and make a warrantless

Id. at 468.

A review of the case law clearly shows that when officers seize contraband in Plain View the items seized are recognizable as contraband, meaning that the items seized serve no other purpose such as baggies of marijuana or foils used to contain heroin. See, State v. Mann, 203 N.J. 328 (2010); State v. Johnson, 171 N.J. 192 (2002); State v. Harris, 384 N.J. Super. 29 (App. Div. 2006); and State v. Herron, 153 N.J. Super. 570 (App. Div. 1977). In Texas v. Brown, 460 U.S 730, 741 (1983) the Court retracted the terminology of the Coolidge decision of “immediately apparent” reasoning that the phrase “was very likely an unhappy choice of words, since it can be taken to imply that a unduly high degree of certainty as to the incriminatory character of the evidence is necessary for an application of the plain view doctrine”. In State v. Bruzzese, 94 N.J. 210 (1983) the New Jersey Supreme Court followed suit and held that probable cause exists by objective facts interpreted by a reasonable person.

June 12

Vehicle Search For Weapons Not Allowed Under These Facts

On May 21, 2015 the Appellate divsion decided State v. Robinson. In this case, while on late night patrol, a police officer noticed a car pull out of a motel in a high crime, high drug area. Deciding that the operation of the car was suspicious, the officer stopped the car after odserving an air fresherner hanging from the mirror, obstructed view. The driver admitted that his license was suspended and none of the occupants could name the owner of the car.

Dispatch advised that the driver and a passanger had open warrants and were known to carry weapons. They were arrested, searched and secured in patrol cars. The other two occupants were pat down and detained roadside. The officers then swept the car for weapons. Lifting a purse the passanger left on the front seat, the officer felt a heavy object with the outline of a gun and found a loaded 38 caliber handgun.

Following the denial of a motion to supress, Defendant Robinson pleaded guilty to possession of a weapon. On appeal, he argued that police were required to obtain a warrant before searching the car. Applying the rationale of State v. Gamble, the Court concluded that the search of the car was unlawful. The Court found that the officers did not see any suspicious movements upon approaching the car, the two who had warrants and were known to carry weapons were under arrest and secured in police cars, the other two occupants were not licensed and could not leave, and they were cooperative and made no attempt to get back to the vehicle. Given these facts, there was no reasonable suspicion that the car contained a gun or that the unlicensed passangers posed any threat to the officers requiring a protective sweep of the car. The officers should have obtained a warrant and not having done so, the weapon was suppressed as an illegal search.

June 11

Custody And Visitation Rights

The courts of New Jersey have expressed a policy encouraging protection of family relationships by favoring full visitation and custody rights in order “to insure that [the children] shall not only retain the love of both parents but shall at all times and constantly be `deeply imbued with love and respect for both parents.’” Smith v. Smith, 85 N.J. Super. 462, 469 (J.D.R. Ct. 1964); Jackson v. Jackson, 13 N.J. Super. 144 (App. Div. 1951). In a contest between parents, the happiness and welfare of the children should be the determining factor and the court should strain every effort to attain for the child the affection of both parents rather than one. “The greatest benefit a court can bestow upon children” is to insure that they shall not only retain the love of both parents but shall at all times and constantly be “deeply imbued with love and respect for both parents.” Turney v. Nooney, 5 N.J.Super. 392, 397 (App. Div. 1949). In advancing the best interests of the child, “the courts should seek to minimize, if possible, conflicting pressures placed upon a child and to give effect to the reasonable agreement and expectations of the parents concerning the [issue in dispute] before their marital relationship foundered, subject to the predominant objective of serving the child’s welfare comprehensively.” Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978).

The New Jersey Legislature has found and declared “the public policy of this State to assure minor children of frequent and continuing contact with both parents [after divorce] and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” N.J.S.A. 9:2-4. Both parties here have a fundamental right to “the custody, care and nurturing of their child.” Watkins v. Nelson, 163 N.J. 235, 245 (2000). As neither has a right that is superior to the other, “the sole benchmark” to a determination of the parenting time issue is the best interests of the child, Sacharow v. Sacharow, 177 N.J. 62, 80 (2003), that is, what will protect the “safety, happiness, physical, mental and moral welfare of the child,” Beck v. Beck, 86 N.J. 480, 497 (1981).

Parental rights to custody and visitation are held “in high esteem” and are guaranteed judicial protection.  Wilke v. Culp, 196 N.J.Super. 487, 496 (App.Div.1984), certif.. denied, 99 N.J. 243 (1985). New Jersey courts have consistently held that denial of contact with a parent wrongly punishes the innocent child. As recently as May 7, 2012, the New Jersey Appellate Division ruled in T.J. v T.J. Docket No A-0253-11T4, stated that “[t]he focus of every judicial determination about custody and parenting time is “on the ‘safety, happiness, physical, mental and moral welfare’ of the children.” Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). Courts must therefore be continually vigilant to ensure that efforts to safeguard a child do not unintentionally have the contrary effect.

Thus, a relationship between a child and parent should be curtailed by the court only when in the child’s best interests and not as a means to punish a parent. See In re Guardianship of K.H.O., 161 N.J. 337, 350 (1999) (explaining that termination of parental rights is appropriate only to effectuate the best interests of the child and not as a means to punish a parent for past transgressions) (citing In re Guardianship of A.A.M., 268 N.J. Super. 533, 549 (App. Div. 1993) (Kestin, J., concurring)). Modification is appropriate when there is a change in circumstances warranting it, i.e., a development that affects the welfare of the child. Beck v. Beck, 86 N.J. 480, 496 (1981); Sheehan v. Sheehan, 51 N.J.Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).

The issue is “two-fold and sequential.” Faucett v. Vasquez, 411 N.J. Super. 108, 127 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). The party seeking a modification “must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child. . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts” Id. at 127-28 (internal citations and quotations omitted).

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