In this issue:
1 Recent cases: Defendant Can Select Its Own Attorney
2. If Drugs Acquired Jointly, No Distribution Crime.
3. Pre Trial Intervention Rejection Appeal Must be Completed Before Guilty Plea.
4. Holiday Gift Idea! ........Gift Certificates for Wills or Power of Attorney
5. Web Photo: Beverly Hills Author Jay Foonberg
6. Needed: Outdoor Nativity Scene
7. Apartment for Rent Edison
8. HAPPY HOLIDAYS & SEASON'S GREETINGS WORLDWIDE
9. Holly Jolly Christmas lyrics
1 Recent cases: Defendant Can Select Its Own Attorney.
1 Recent cases: Defendant Can Select Its Own Attorney. U.S. v. Gonzalez-Lopez 126 S.Ct. 2557 (2006)
A trial court's erroneous deprivation of a criminal defendant's choice of counsel entitles him to reversal of his conviction.
Source: 185 N.J.L.J. 53
2. If Drugs Acquired Jointly, No Distribution Crime. State v. Morrison 188 NJ 2 (2006) Because defendant and the decedent simultaneously and jointly acquired possession of the drugs for their own use, intending only to share it together, defendant cannot be charged with the crime of distribution.
Source: 185 N.J.L.J. 451
3. Pre Trial Intervention Rejection Appeal Must be Completed Before Guilty Plea. State v. Moraes Pena 386 NJ Super. 569 (Law Div. 2006) An appeal to the Law Division from the rejection of a defendant's application for pretrial intervention should be completed before the defendant enters a guilty plea. In this case in which the defendant pleaded guilty to assault by auto while intoxicated, there was no "patent and gross abuse of discretion" by the prosecutor in denying PTI based on a county-wide policy of discouraging drunk driving. Source: Facts-on-Call Order No. 93120
4. Holiday Gift Idea! ........Gift Certificates for Wills or Power of Attorney
During the Holiday season, we often buy gifts for our family and friends. May we suggest a holiday gift which truly shows how much you care. Purchase a Will Gift Certificate for loved ones. Secure their interests and make sure proper planning is done.
The Law Office of Kenneth Vercammen's Holiday special includes:
•A Simple Will without Trust
• Follow up legal advice
•A 2 year subscription to the NJ Laws Email News
- All for only $200.00! -
Call 732-572-0500 for the Gift Certificate
Details on Wills: http://www.njlaws.com/wills.htm
Power of Attorney http://www.njlaws.com/power_of_attorney.htm
Details on Wills:
5. Web Photo: Beverly Hills Author Jay Foonberg
Beverly Hills Author Jay Foonberg Ken Vercammen were speakers at the American Bar Association Annual Meeting program entitled: Elder Law Practice- New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need, plus Marketing and Expanding an Elder Law Practice
Details from topics at program: ANSWERS TO YOUR QUESTIONS ABOUT PROBATE AND ADMINISTRATION OF AN ESTATE http://www.njlaws.com/answers_to_probate.htm
Author Jay Foonberg
6. Needed: Outdoor Nativity Scene
A nativity scene, also called a crib or crèche (meaning "crib" or "manger" in French) generally refers to any depiction of the birth or birthplace of Jesus. The local Knight of Columbus members are looking for used outdoor nativity scenes no longer being used or displayed, to give them a new home.
Christian Nativity scenes three (sculpture or other three-dimensional crafts), usually show Jesus in a manger, Joseph and Mary in a barn (or cave) intended to accommodate farm animals. A donkey and an ox accompany them; besides the necessity of animals for a manager, this is an allusion to Isaiah: "the ox knoweth his owner, and the ass his master's crib; but Israel doth not know, my people doth not consider" (Is. 1:3). The scene sometimes includes the Magi or Three Wise Men, shepherds, angels and the Star of Bethlehem. The traditional scenes that show the shepherds and Magi together are of course not true to the Bible story, since the Magi arrived much later (Luke 2:7-16).
http://en.wikipedia.org/wiki/Nativity_scene
If you have an unused Nativity scene, call Ken Vercammen at 732-572-0500
7. Apartment for Rent Edison
- 1 Bedroom, 2nd floor, all utilities included. private parking $950 month Call 732-309-3730
8. HAPPY HOLIDAYS & SEASON'S GREETINGS WORLDWIDE:
FROHE
WEIHNACHTEN
PRÓSPERO AÑO NUEVO
HAPPY NEW YEAR
FRIEDEN
GLÜCKLICHES NEUES JAHR
JOYEUX NOËL
PRETTIGE
KERSTDAGEN
GELUKKIG
NIEUWJAAR
BUON
NATALE
BONNIE ANNEE
HYVÄÄ JOULUA
___________________________
9. Holly Jolly Christmas lyrics
Have a holly, jolly Christmas,
It's the best time of the year
I don't know if there'll be snow,
But have a cup of cheer.
Have a holly, jolly Christmas,
And when you walk down the street,
Say "Hello" to friends you know
And everyone you meet.
Oh, Ho, the mistletoe,
Hung where you can see,
Somebody waits for you,
Kiss her once for me.
Have a holly, jolly Christmas,
And in case you didn't hear,
Oh by golly, have a holly,
Jolly Christmas this year.
by Johnny Marks
_____________________________
New- Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 20 years of providing excellent service to clients 1985-2006" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2006. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
------------------------------------------------------------------------
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
Phone: 732-572-0500
Fax: 732-572-0030
Web site: http://www.njlaws.com
E-mail: kenvnjlaws@verizon.net
Friday, December 08, 2006
NJ Laws Newsletter E229 November 28, 2006
In this issue:
1 Recent cases: Threat to Bring in Drug Dog Does Not Invalidate Consent Search
2 911 Call Sometimes Admissible at Trial and Not Hearsay
3. "CONFIDENTIAL WILL QUESTIONNAIRE"
4. Fun, festive upcoming races with party afterwards.
_________________
1 Recent cases: Threat to Bring in Drug Dog Does Not Invalidate Consent Search. State v. Elders 386 NJ Super. 208 (App. Div. 2006)
Although State v. Carty requires a law enforcement officer to have a reasonable suspicion as a prerequisite to seeking consent to search a vehicle -- whether the officer initiated the stop or the driver stopped for other reasons -- the trial court in this case erred by suppressing evidence seized from a disabled vehicle and from several defendants because, under the totality of the circumstances, the State Troopers had reasonable suspicion to justify their request for consent to search the disabled vehicle.
Source: Facts-on-Call Order No. 93059
2 911 Call Sometimes Admissible at Trial and Not Hearsay. Davis v. Washington 126 S. Ct. 2266 (2006)
For Confrontation Clause purposes, witness statements are nontestimonial when the primary purpose of the interrogation in which they are made is to enable police assistance to meet an ongoing emergency; they are testimonial when the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. However, if witness is in safe environment, this is testimonial and not excited utterance. Therefore, witness testimony is required. Source: 184 N.J.L.J. 1173
_________
3. "CONFIDENTIAL WILL QUESTIONNAIRE"
Many Americans spend more time planning their next vacation than planning their entire future. Prepare for the legal issues that may arise for you and your family in your senior years or in death.
To have a Will or Power of Attorney prepared, please fill out the following information completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to meeting with the attorney. Fees for preparation of Wills, Durable Power of Attorney and Living Will are discussed with clients at initial consult.
Please be sure to check all appropriate boxes. If "NONE", please state "NONE". If "NOT APPLICABLE", please state "N/A".
PLEASE PRINT CLEARLY
1. Your Full Name:
______________________________________________________
First Last
2. IF MARRIED OR SEPARATED, complete (a) and (b) below:
(a) Spouse's Full Name:
______________________________________________________
First Last
3. Your Street Address: ____________________________________
City ____________________ State ____ Zip Code ______________
4. Telephone Numbers:
Cell: _____________________________________ ________________________
Day: ____________________/Night: ________________________
5. E-mail address: _______________________________________
6. Referred By: _________________________ 7. Today's Date ____________
If referred by a person, is this a client or attorney? __________________________________
We recommend a Living Will telling hospitals and doctors not to prolong your life by artificial means, i.e. Terri Schiavo; Karen Quinlan? Yes ________ No _____
We recommend a Durable Power of Attorney in the event of your physical or mental disability to help you with financial affairs? Yes ________ No ________
How can we help you? What are your questions/other important info?
______________________________________________________________
_______________________________________________________________
_______________________________________________________________
[It is required by New Jersey Court Rules that all pages be filled out in person's own handwriting prior to seeing the attorney]
8. Your Sex: [ ] Male [ ] Female
9. Your Marital Status: [ ] Single [ ] Married [ ] Separated [ ] Divorced [ ] Widowed
10. Your Date of Birth: ___________________ SS # __________________
Month Day Year
11. Spouse Date of Birth: _________________ SS # __________________
Month Day Year
12. If you are the parent or legal guardian of a minor child or minor children, please check here. [ ]
2. ESTATE EXECUTOR
The person charged with administering/Probating your estate, paying taxes and/or other debts, preserving, managing, and distributing estate assets and property is called an Executor. This person should be one in whom you have trust and confidence. Your SPOUSE is usually named as primary Executor, followed by the child who lives closest to you.
Please provide the following information about the person you wish to name to serve in this capacity.
1. PRIMARY Choice of Executor/Personal Representative:
Name: _______________________ _______________________
First Last
Relationship: _______________ Address: ____________________
2. SECOND Choice of Executor:
This individual will serve in the event that the primary executor/personal representative is not alive at the time of your death, or is unable to serve.
Full Name: ___________________________ _________________
First Last
Relationship: _______________ Address: ____________________
The two proposed Executors must be filled out prior to meeting the attorney.
Asset Information- Must Be Completed - If none, write “none”
House/Real Estate Address _______________________________
Estimate Total Real Estate Value: _____________ Approx mortgage _______
Bank Accounts, Stocks, CDs and Assets: ________________________
Approximate Amount _____________________________
Beneficiaries of Bank Accounts (if none write "none") ______________________________
Other Major Assets (if none, write "none"): _______________________________________
Approximate Life Insurance: _____ Beneficiary ____________________
In the Will- Who do you want to get your assets:
Beneficiary (1) _______________________ Relationship _______________
Beneficiary (2) _______________________ Relationship _______________
Beneficiary (3) _______________________ Relationship _______________
[It is required by New Jersey Court Rules that assets and beneficiaries be filled out prior to seeing the attorney]
Any Specific Bequests of Money and Property:
________________________________________________________
______________________________________________________________
[ ] A. MARRIED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN).
Generally most married people provide that, upon their death, property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse.
2. If your spouse predeceases you, then your estate will be divided in equal shares among all of your living children, If any child shall predecease you, then that child's share to their children (grandchildren).
Names of Children: _________________ Age: ______
______________________________ Age: ______
______________________________ Age: ______
LIST THE NAMES AND AGES OF ALL CHILDREN EVEN IF THEY ARE OLDER THAN EIGHTEEN. IF NO CHILDREN, WRITE NONE.
III. GUARDIAN(S) OF MINOR CHILD(REN)
[Skip this section if you have NO minor children and DO NOT want a trust. There are substantial additional fees for preparation of a Trust]
The surviving parent of a minor child is ordinarily entitled to be the GUARDIAN of that child. In the case of simultaneous death of you and your spouse, or if you are a single parent, you should appoint a Guardian for your minor child. It is advisable, prior to the completion of this Questionnaire, to make sure that your proposed Guardian(s) is (are) willing to serve as Guardian(s). In addition, the Guardian will also hold the monies for the minor children UNLESS you direct us otherwise. In your Will you can have any adult serve as Trustee of monies for minor children.
Provide the following information about the person(s) you select to be Guardian(s)/Trustee(s). In the event my spouse predeceases me, I name as GUARDIAN(S)/ TRUSTEE(S):
1. PRIMARY Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: ______________________________________
2. SECOND Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: _____________________________________
Are there any beneficiaries with special needs, or receiving SSI or SDD? Please answer in detail
________________________________________
[ ] B. MARRIED PERSONS WITH NO CHILD(REN) OR GRANDCHILD(REN).
Generally most married people with no child(ren) or grandchild(ren) provide that upon their death their property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse, but
2. If your spouse predeceases you, then your estate will be distributed to your living parent, or equally to your living parents.
3. But should both of your parents predecease you, then your estate will distributed equally to your brothers and sisters or equally to the children of a predeceased brother or sister.
Please check B above only if you wish your property distributed precisely and exactly as indicated in section B, 1 through 3, above.
Additional information on Wills, Probate and Elder Law available at www.njlaws.com
[ ] C. DIVORCED OR WIDOWED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN). Generally, most divorced or widowed persons with child(ren) or grandchild(ren) provide that upon their death property will be distributed as follows: 1. Your estate (all property and assets not owned jointly with another person) will be distributed in equal shares to all of your living child(ren).
2. But if one or more of your children predeceases you, that deceased child's share will be distributed to his or her child(ren), your grandchild(ren) in equal shares
[ ] D. ALTERNATE PLAN OF DISTRIBUTION - You may list specific gifts to individuals and/or divide your estate among several individuals by listing percentages to each, making sure that the percentages total 100%. You may add additional sheets if necessary or use the back of this form. There are additional Will preparation fees if there are gifts, called specific bequests.
PLEASE WRITE DOWN ANY QUESTIONS YOU HAVE HERE or anything else important that we should be aware. Use back of this page for additional important information:
_______________________________________________________________
_______________________________________________________________
ESTATE PLANNING
Your estate may be subject to Federal Estate Taxation if the total of your assets exceeds $2,000,000. If your assets exceed $2,000,000 and you desire estate planning to avoid or reduce your estate tax or require a Trust to protect a spouse, please advise Mr. Vercammen. A Standard Will is not designed to address estate tax issues. We do not do Tax Planning or Medicaid Planning.
WILLS:
T 1- Parents with minor children and trust for children ____________
T 2- Parents no spouse ____________
T 3- Unmarried ____________
T 4- Parents without trust ____________
T 5- Unified Credit Trust over $1 million? ____________
PAYMENT WILL BE MADE BY: (Please circle one)
Check, Credit Card (Visa, Mastercard, American Express) or Cash
Payment is required for Will, Power of Attorney and other document preparation at the first consult and prior to any documents being drafted. We charge a $100.00 consultation fee, which is credited to the preparation of the Will or other document. This $150.00 fee is non-refundable even if the documents are not prepared. If there are any changes to a draft Will, Power of Attorney, or other document, there will be a minimum charge of $75.00 per revision. The Will needs to be signed within 21 days of initial consult or an additional fee of $100.00 will be charged. This form was filled out by:
________________________
4. Fun, festive upcoming races with party afterwards. Car pool from East Brunswick area needed. Call Ken Vercammen 732-261-4005
Dec 3 Reindeer Romp, 5k Pt. Pleasant plenty of post race food, discount drinks
12/30 43rd Annual Polar Bear Race 5mi Run, 1pm, 10mi Racewalk, 10am Asbury Park, NJ 732-222-9080 Free Polar Plunge swim in Atlantic Ocean after race.
Kenneth Vercammen
3rd Degree Black Belt
Tae Kwon Do
Criminal and Civil Trial Attorney
The Black Belt of Trial Law
The toughest fight of your life needs a tough fighter.
All inquiries are confidential.
_____________________________
New- Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 20 years of providing excellent service to clients 1985-2006" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2006. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
1 Recent cases: Threat to Bring in Drug Dog Does Not Invalidate Consent Search
2 911 Call Sometimes Admissible at Trial and Not Hearsay
3. "CONFIDENTIAL WILL QUESTIONNAIRE"
4. Fun, festive upcoming races with party afterwards.
_________________
1 Recent cases: Threat to Bring in Drug Dog Does Not Invalidate Consent Search. State v. Elders 386 NJ Super. 208 (App. Div. 2006)
Although State v. Carty requires a law enforcement officer to have a reasonable suspicion as a prerequisite to seeking consent to search a vehicle -- whether the officer initiated the stop or the driver stopped for other reasons -- the trial court in this case erred by suppressing evidence seized from a disabled vehicle and from several defendants because, under the totality of the circumstances, the State Troopers had reasonable suspicion to justify their request for consent to search the disabled vehicle.
Source: Facts-on-Call Order No. 93059
2 911 Call Sometimes Admissible at Trial and Not Hearsay. Davis v. Washington 126 S. Ct. 2266 (2006)
For Confrontation Clause purposes, witness statements are nontestimonial when the primary purpose of the interrogation in which they are made is to enable police assistance to meet an ongoing emergency; they are testimonial when the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. However, if witness is in safe environment, this is testimonial and not excited utterance. Therefore, witness testimony is required. Source: 184 N.J.L.J. 1173
_________
3. "CONFIDENTIAL WILL QUESTIONNAIRE"
Many Americans spend more time planning their next vacation than planning their entire future. Prepare for the legal issues that may arise for you and your family in your senior years or in death.
To have a Will or Power of Attorney prepared, please fill out the following information completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to meeting with the attorney. Fees for preparation of Wills, Durable Power of Attorney and Living Will are discussed with clients at initial consult.
Please be sure to check all appropriate boxes. If "NONE", please state "NONE". If "NOT APPLICABLE", please state "N/A".
PLEASE PRINT CLEARLY
1. Your Full Name:
______________________________________________________
First Last
2. IF MARRIED OR SEPARATED, complete (a) and (b) below:
(a) Spouse's Full Name:
______________________________________________________
First Last
3. Your Street Address: ____________________________________
City ____________________ State ____ Zip Code ______________
4. Telephone Numbers:
Cell: _____________________________________ ________________________
Day: ____________________/Night: ________________________
5. E-mail address: _______________________________________
6. Referred By: _________________________ 7. Today's Date ____________
If referred by a person, is this a client or attorney? __________________________________
We recommend a Living Will telling hospitals and doctors not to prolong your life by artificial means, i.e. Terri Schiavo; Karen Quinlan? Yes ________ No _____
We recommend a Durable Power of Attorney in the event of your physical or mental disability to help you with financial affairs? Yes ________ No ________
How can we help you? What are your questions/other important info?
______________________________________________________________
_______________________________________________________________
_______________________________________________________________
[It is required by New Jersey Court Rules that all pages be filled out in person's own handwriting prior to seeing the attorney]
8. Your Sex: [ ] Male [ ] Female
9. Your Marital Status: [ ] Single [ ] Married [ ] Separated [ ] Divorced [ ] Widowed
10. Your Date of Birth: ___________________ SS # __________________
Month Day Year
11. Spouse Date of Birth: _________________ SS # __________________
Month Day Year
12. If you are the parent or legal guardian of a minor child or minor children, please check here. [ ]
2. ESTATE EXECUTOR
The person charged with administering/Probating your estate, paying taxes and/or other debts, preserving, managing, and distributing estate assets and property is called an Executor. This person should be one in whom you have trust and confidence. Your SPOUSE is usually named as primary Executor, followed by the child who lives closest to you.
Please provide the following information about the person you wish to name to serve in this capacity.
1. PRIMARY Choice of Executor/Personal Representative:
Name: _______________________ _______________________
First Last
Relationship: _______________ Address: ____________________
2. SECOND Choice of Executor:
This individual will serve in the event that the primary executor/personal representative is not alive at the time of your death, or is unable to serve.
Full Name: ___________________________ _________________
First Last
Relationship: _______________ Address: ____________________
The two proposed Executors must be filled out prior to meeting the attorney.
Asset Information- Must Be Completed - If none, write “none”
House/Real Estate Address _______________________________
Estimate Total Real Estate Value: _____________ Approx mortgage _______
Bank Accounts, Stocks, CDs and Assets: ________________________
Approximate Amount _____________________________
Beneficiaries of Bank Accounts (if none write "none") ______________________________
Other Major Assets (if none, write "none"): _______________________________________
Approximate Life Insurance: _____ Beneficiary ____________________
In the Will- Who do you want to get your assets:
Beneficiary (1) _______________________ Relationship _______________
Beneficiary (2) _______________________ Relationship _______________
Beneficiary (3) _______________________ Relationship _______________
[It is required by New Jersey Court Rules that assets and beneficiaries be filled out prior to seeing the attorney]
Any Specific Bequests of Money and Property:
________________________________________________________
______________________________________________________________
[ ] A. MARRIED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN).
Generally most married people provide that, upon their death, property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse.
2. If your spouse predeceases you, then your estate will be divided in equal shares among all of your living children, If any child shall predecease you, then that child's share to their children (grandchildren).
Names of Children: _________________ Age: ______
______________________________ Age: ______
______________________________ Age: ______
LIST THE NAMES AND AGES OF ALL CHILDREN EVEN IF THEY ARE OLDER THAN EIGHTEEN. IF NO CHILDREN, WRITE NONE.
III. GUARDIAN(S) OF MINOR CHILD(REN)
[Skip this section if you have NO minor children and DO NOT want a trust. There are substantial additional fees for preparation of a Trust]
The surviving parent of a minor child is ordinarily entitled to be the GUARDIAN of that child. In the case of simultaneous death of you and your spouse, or if you are a single parent, you should appoint a Guardian for your minor child. It is advisable, prior to the completion of this Questionnaire, to make sure that your proposed Guardian(s) is (are) willing to serve as Guardian(s). In addition, the Guardian will also hold the monies for the minor children UNLESS you direct us otherwise. In your Will you can have any adult serve as Trustee of monies for minor children.
Provide the following information about the person(s) you select to be Guardian(s)/Trustee(s). In the event my spouse predeceases me, I name as GUARDIAN(S)/ TRUSTEE(S):
1. PRIMARY Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: ______________________________________
2. SECOND Choice of GUARDIAN / TRUSTEE:
Full Name: _______________________________________
Relationship: _____________________________________
Are there any beneficiaries with special needs, or receiving SSI or SDD? Please answer in detail
________________________________________
[ ] B. MARRIED PERSONS WITH NO CHILD(REN) OR GRANDCHILD(REN).
Generally most married people with no child(ren) or grandchild(ren) provide that upon their death their property will be distributed as follows:
1. Your estate (all property and assets not owned jointly with another person) will be distributed to your surviving spouse, but
2. If your spouse predeceases you, then your estate will be distributed to your living parent, or equally to your living parents.
3. But should both of your parents predecease you, then your estate will distributed equally to your brothers and sisters or equally to the children of a predeceased brother or sister.
Please check B above only if you wish your property distributed precisely and exactly as indicated in section B, 1 through 3, above.
Additional information on Wills, Probate and Elder Law available at www.njlaws.com
[ ] C. DIVORCED OR WIDOWED PERSONS WITH CHILD(REN) OR GRANDCHILD(REN). Generally, most divorced or widowed persons with child(ren) or grandchild(ren) provide that upon their death property will be distributed as follows: 1. Your estate (all property and assets not owned jointly with another person) will be distributed in equal shares to all of your living child(ren).
2. But if one or more of your children predeceases you, that deceased child's share will be distributed to his or her child(ren), your grandchild(ren) in equal shares
[ ] D. ALTERNATE PLAN OF DISTRIBUTION - You may list specific gifts to individuals and/or divide your estate among several individuals by listing percentages to each, making sure that the percentages total 100%. You may add additional sheets if necessary or use the back of this form. There are additional Will preparation fees if there are gifts, called specific bequests.
PLEASE WRITE DOWN ANY QUESTIONS YOU HAVE HERE or anything else important that we should be aware. Use back of this page for additional important information:
_______________________________________________________________
_______________________________________________________________
ESTATE PLANNING
Your estate may be subject to Federal Estate Taxation if the total of your assets exceeds $2,000,000. If your assets exceed $2,000,000 and you desire estate planning to avoid or reduce your estate tax or require a Trust to protect a spouse, please advise Mr. Vercammen. A Standard Will is not designed to address estate tax issues. We do not do Tax Planning or Medicaid Planning.
WILLS:
T 1- Parents with minor children and trust for children ____________
T 2- Parents no spouse ____________
T 3- Unmarried ____________
T 4- Parents without trust ____________
T 5- Unified Credit Trust over $1 million? ____________
PAYMENT WILL BE MADE BY: (Please circle one)
Check, Credit Card (Visa, Mastercard, American Express) or Cash
Payment is required for Will, Power of Attorney and other document preparation at the first consult and prior to any documents being drafted. We charge a $100.00 consultation fee, which is credited to the preparation of the Will or other document. This $150.00 fee is non-refundable even if the documents are not prepared. If there are any changes to a draft Will, Power of Attorney, or other document, there will be a minimum charge of $75.00 per revision. The Will needs to be signed within 21 days of initial consult or an additional fee of $100.00 will be charged. This form was filled out by:
________________________
4. Fun, festive upcoming races with party afterwards. Car pool from East Brunswick area needed. Call Ken Vercammen 732-261-4005
Dec 3 Reindeer Romp, 5k Pt. Pleasant plenty of post race food, discount drinks
12/30 43rd Annual Polar Bear Race 5mi Run, 1pm, 10mi Racewalk, 10am Asbury Park, NJ 732-222-9080 Free Polar Plunge swim in Atlantic Ocean after race.
Kenneth Vercammen
3rd Degree Black Belt
Tae Kwon Do
Criminal and Civil Trial Attorney
The Black Belt of Trial Law
The toughest fight of your life needs a tough fighter.
All inquiries are confidential.
_____________________________
New- Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 20 years of providing excellent service to clients 1985-2006" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2006. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
NJ Laws Newsletter E228 November 14, 2006
In this issue:
1 Protecting the Rights of non- traditional couples
2 Pre Trial Dismissal/PTI Available Even If They Had a Similar PTI in Pennsylvania
_________________
1 Protecting the Rights of non- traditional couples
By Thomas D. Begley, Jr., Esquire
What is a Non-Traditional Couple?
Non-traditional couples are either same sex couples or heterosexual unmarried couples. They may even include transgender couples. Typically, these relationships are characterized as domestic partnerships. The partnerships often have the following characteristics:
$ Common residence
$ Some form of joint responsibility for each other's common welfare
$ Joint responsibility for living expenses
$ Neither partner is in a valid marriage, except in those states permitting same sex marriages
$ There is a committed relationship of mutual caring
$ Both parties are at least 18 years of age
$ An Affidavit of Domestic Partnership has been filed in those states where such partnerships are authorized
Important Issues for Non-Traditional Couples
$ Financial Control. If one partner is incapacitated, that person usually wants the healthy partner to handle financial affairs.
$ Health Care. If one partner is incapacitated, that person usually wants the healthy partner to handle medical affairs.
$ Autopsy. In certain cases, a domestic partner may want the surviving partner to consent to an autopsy.
$ Organ Donations. A domestic partner may wish the surviving partner to consent to organ donations.
$ Inheritance. Domestic partners usually want their partner to inherit upon death.
$ Ownership and Management of Real Estate. Domestic partners often purchase real estate together and are often concerned about how the property is titled and how the property will be maintained.
Tools
To accomplish these objectives certain tools are available. While these tools are important in all relationships, they are particularly important in non-traditional couple relationships.
- Power of Attorney. A Power of Attorney allows the clients to grant their partners (and/or other people) the right to make financial decisions and to have access to bank accounts.
Failure to execute a Power of Attorney may lead to unpleasant future consequences. Absent a Power of Attorney it may be necessary for someone to be appointed guardian of the incapacitated partner. Most state statutes do not give a domestic partner any priority in being named guardian. Family members, generally, would come ahead of a domestic partner. The financial power of attorney should obviate the need for having a guardian appointed.
- Advanced Medical Directive. An Advanced Medical Directive, sometimes called a Health Care Proxy or a Medical Durable Power of Attorney, allows the clients to grant their partners (and/or other people) the right to make health care decisions and to have access to medical records.
Failure to have an Advanced Medical Directive in place might necessarily lead to the appointment of a medical guardian. Again, the domestic partner has no statutory right, in most states, to be named health care representative. Most state statutes give priority to family members.
- Living Will. A Living Will allows the clients to be "on record" as to whether they want heroic measures used to keep them alive if there is otherwise no hope. Although a Living Will is not legally enforceable in some states, it is always valuable in a legal dispute or inquiry about what the patient would want.
- Burial Directive. A Burial Directive, like a Living Will, at the very least allows the clients to be "on record" as to how to dispose of their remains, and in some states it even gives the designated agent authority equal to or greater than family members who would otherwise be assumed to have authority over such decisions.
Absent a Burial Directive the domestic partner has no right to make any decisions pertaining to the burial of the deceased partner. Family members and/or the executor are given priority.
- Will. It is very important that non-traditional partners have Wills. Absent a Will each state has an Intestacy statute. The Intestacy statute is, in effect, a Will for the deceased partner, which has been written by the state. The domestic partner will not benefit through Intestacy. In order for the domestic partner to inherit from the deceased partner, a Will must be drafted.
- Living Trust. A Living Trust allows the clients to grant their partners (and/or other people) the right to manage their assets and investments.
- Beneficiary Designations. If a domestic partner wants the surviving partner to benefit from the deceased partner's life insurance, retirement account and/or annuity, the domestic partner must be named as beneficiary. There may be an issue in some states as to whether the domestic partner has an "Insurable interest" with respect to life insurance. State law must be consulted carefully.
- Equity Sharing Agreement. An Equity Sharing Agreement is an agreement between the unmarried couple pertaining to ownership and management of real estate. -
- Domestic Partnership Agreement. Some states authorize Domestic Partnership Agreements, and some state laws grant various rights to domestic partners. It is important that an agreement be drafted to comply with the state statute in these cases.
Thank you to Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
_________
2 Pre Trial Dismissal/PTI Available Even If They Had a Similar PTI in Pennsylvania. State v. McKeon 385 NJ Super. 559 (App. Div 2006)
A defendant is not be barred, pursuant to N.J.S.A. 2C:43-12g, from PTI even if they had were previously enrolled in a program similar to PTI in Pennsylvania for a criminal DWI charge.
Source: 184 N.J.L.J. 712
Auto accident cases- Hisenaj v. Kuehner
387 N.J. Super. 262
The trial court erred in allowing biomechanical engineering testimony that a low-impact, rear-end collision cannot cause a herniated disc.
_____________________________
New- Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 20 years of providing excellent service to clients 1985-2006" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2006. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
1 Protecting the Rights of non- traditional couples
2 Pre Trial Dismissal/PTI Available Even If They Had a Similar PTI in Pennsylvania
_________________
1 Protecting the Rights of non- traditional couples
By Thomas D. Begley, Jr., Esquire
What is a Non-Traditional Couple?
Non-traditional couples are either same sex couples or heterosexual unmarried couples. They may even include transgender couples. Typically, these relationships are characterized as domestic partnerships. The partnerships often have the following characteristics:
$ Common residence
$ Some form of joint responsibility for each other's common welfare
$ Joint responsibility for living expenses
$ Neither partner is in a valid marriage, except in those states permitting same sex marriages
$ There is a committed relationship of mutual caring
$ Both parties are at least 18 years of age
$ An Affidavit of Domestic Partnership has been filed in those states where such partnerships are authorized
Important Issues for Non-Traditional Couples
$ Financial Control. If one partner is incapacitated, that person usually wants the healthy partner to handle financial affairs.
$ Health Care. If one partner is incapacitated, that person usually wants the healthy partner to handle medical affairs.
$ Autopsy. In certain cases, a domestic partner may want the surviving partner to consent to an autopsy.
$ Organ Donations. A domestic partner may wish the surviving partner to consent to organ donations.
$ Inheritance. Domestic partners usually want their partner to inherit upon death.
$ Ownership and Management of Real Estate. Domestic partners often purchase real estate together and are often concerned about how the property is titled and how the property will be maintained.
Tools
To accomplish these objectives certain tools are available. While these tools are important in all relationships, they are particularly important in non-traditional couple relationships.
- Power of Attorney. A Power of Attorney allows the clients to grant their partners (and/or other people) the right to make financial decisions and to have access to bank accounts.
Failure to execute a Power of Attorney may lead to unpleasant future consequences. Absent a Power of Attorney it may be necessary for someone to be appointed guardian of the incapacitated partner. Most state statutes do not give a domestic partner any priority in being named guardian. Family members, generally, would come ahead of a domestic partner. The financial power of attorney should obviate the need for having a guardian appointed.
- Advanced Medical Directive. An Advanced Medical Directive, sometimes called a Health Care Proxy or a Medical Durable Power of Attorney, allows the clients to grant their partners (and/or other people) the right to make health care decisions and to have access to medical records.
Failure to have an Advanced Medical Directive in place might necessarily lead to the appointment of a medical guardian. Again, the domestic partner has no statutory right, in most states, to be named health care representative. Most state statutes give priority to family members.
- Living Will. A Living Will allows the clients to be "on record" as to whether they want heroic measures used to keep them alive if there is otherwise no hope. Although a Living Will is not legally enforceable in some states, it is always valuable in a legal dispute or inquiry about what the patient would want.
- Burial Directive. A Burial Directive, like a Living Will, at the very least allows the clients to be "on record" as to how to dispose of their remains, and in some states it even gives the designated agent authority equal to or greater than family members who would otherwise be assumed to have authority over such decisions.
Absent a Burial Directive the domestic partner has no right to make any decisions pertaining to the burial of the deceased partner. Family members and/or the executor are given priority.
- Will. It is very important that non-traditional partners have Wills. Absent a Will each state has an Intestacy statute. The Intestacy statute is, in effect, a Will for the deceased partner, which has been written by the state. The domestic partner will not benefit through Intestacy. In order for the domestic partner to inherit from the deceased partner, a Will must be drafted.
- Living Trust. A Living Trust allows the clients to grant their partners (and/or other people) the right to manage their assets and investments.
- Beneficiary Designations. If a domestic partner wants the surviving partner to benefit from the deceased partner's life insurance, retirement account and/or annuity, the domestic partner must be named as beneficiary. There may be an issue in some states as to whether the domestic partner has an "Insurable interest" with respect to life insurance. State law must be consulted carefully.
- Equity Sharing Agreement. An Equity Sharing Agreement is an agreement between the unmarried couple pertaining to ownership and management of real estate. -
- Domestic Partnership Agreement. Some states authorize Domestic Partnership Agreements, and some state laws grant various rights to domestic partners. It is important that an agreement be drafted to comply with the state statute in these cases.
Thank you to Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania.
_________
2 Pre Trial Dismissal/PTI Available Even If They Had a Similar PTI in Pennsylvania. State v. McKeon 385 NJ Super. 559 (App. Div 2006)
A defendant is not be barred, pursuant to N.J.S.A. 2C:43-12g, from PTI even if they had were previously enrolled in a program similar to PTI in Pennsylvania for a criminal DWI charge.
Source: 184 N.J.L.J. 712
Auto accident cases- Hisenaj v. Kuehner
387 N.J. Super. 262
The trial court erred in allowing biomechanical engineering testimony that a low-impact, rear-end collision cannot cause a herniated disc.
_____________________________
New- Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 20 years of providing excellent service to clients 1985-2006" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2006. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com
Friday, November 10, 2006
NJ Laws Newsletter E227 November 1, 2006
In this issue:
1 Marketing Survey for ABA Article
2 New Laws Upgrades simple assault against a private school teacher
2C:33-8.1 Makes it a disorderly persons offense to purposely disrupt funeral
3. Police Could Not Search Bag in Stolen Car Without a Warrant
4. Eyewitness 911 Call to Report Attack Admissible as Excited Utterance
5 NJ Supreme Court rejects Gay marriage in New Jersey but supports equal rights
1 MARKETING SURVEY FOR ABA ARTICLE
Greetings friends. I serve as the Chair of the Elder Law Committee of the American Bar Association- General Practice Division.
I am organizing an article on marketing and public relations for a business. To help us, we request professionals and business owner to please fill out the below form and either fax, mail or even email your response to my office. Supply a marketing tip and you will receive credit.
1 Best sources of regular new business: _____________
2. Your marketing home run. Something you did to try to get business that exceeded your expectations: _____________
3. Your marketing zero. Something you did marketing/ advertising that was not worth the time, money or effort: _____________
4. Future trends in the types of business you practice: _____________
5. Other suggestions for young professionals starting their business: _____________
________
2 New Laws N.J.S. 2C:1-14 and N.J.S. 2C:12-1.Â
2C:33-8.1 Makes it a disorderly persons offense to purposely disrupt funeral
The Legislature finds and declares:
    a. Families have a substantial interest in attending funeral services for their loved ones;
    b. The interests of families in privately and peacefully mourning the loss of their relatives are violated when funerals are targeted for disruption, picketing and other demonstrations;
    c. Such disruption causes emotional disturbance and distress to grieving families; and
    d. It is in the interest of the State of New Jersey to protect families’ privacy immediately prior to, during and after a funeral service.
Recent cases: 3. Police Could Not Search Bag in Stolen Car Without a Warrant. State v. Carroll 386 NJ Super. 143 (App. Div. 2006)
Although the warrantless police search and seizure of a bag with narcotics from a stolen vehicle following a police chase and the arrest of the vehicle's driver was not justified under the incident-to-arrest exception in light of the New Jersey Supreme Court's recent decisions in State v. Eckel and State v. Dunlap, the search was constitutional under the automobile exception and the doctrine of abandonment.
Source: Facts-on-Call Order No. 93053
4. Eyewitness 911 Call to Report Attack Admissible as Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)
In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington.
Source: Facts-on-Call Order No. 93030
5 NJ Supreme Court rejects Gay marriage in New Jersey but supports equal rights
Lewis v. . Harris
SUPREME COURT OF NEW JERSEY
Decided October 25, 2006 (Docket A-68-05)
Plaintiffs are seven same-sex couples who have been in permanent committed relationships for more than ten years. Each seeks to marry his or her partner and to enjoy the legal, financial, and social benefits that marriage affords. After being denied marriage licenses in their respective municipalities, plaintiffs sued challenging the constitutionality of the State's marriage statutes.
    In a complaint filed in the Superior Court, Law Division, plaintiffs sought a declaration that laws denying same-sex marriage violated the liberty and equal protection guarantees of Article I, Paragraph 1 of the New Jersey Constitution.
   Â
HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.
_____________________________
New- Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 20 years of providing excellent service to clients 1985-2006" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2006. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison , NJ 08817
Phone: 732-572-0500
Fax: 732-572-0030
Web site: http://www.njlaws.com
E-mail: Kenvnjlaws@verizon.net
1 Marketing Survey for ABA Article
2 New Laws Upgrades simple assault against a private school teacher
2C:33-8.1 Makes it a disorderly persons offense to purposely disrupt funeral
3. Police Could Not Search Bag in Stolen Car Without a Warrant
4. Eyewitness 911 Call to Report Attack Admissible as Excited Utterance
5 NJ Supreme Court rejects Gay marriage in New Jersey but supports equal rights
1 MARKETING SURVEY FOR ABA ARTICLE
Greetings friends. I serve as the Chair of the Elder Law Committee of the American Bar Association- General Practice Division.
I am organizing an article on marketing and public relations for a business. To help us, we request professionals and business owner to please fill out the below form and either fax, mail or even email your response to my office. Supply a marketing tip and you will receive credit.
1 Best sources of regular new business: _____________
2. Your marketing home run. Something you did to try to get business that exceeded your expectations: _____________
3. Your marketing zero. Something you did marketing/ advertising that was not worth the time, money or effort: _____________
4. Future trends in the types of business you practice: _____________
5. Other suggestions for young professionals starting their business: _____________
________
2 New Laws N.J.S. 2C:1-14 and N.J.S. 2C:12-1.Â
2C:33-8.1 Makes it a disorderly persons offense to purposely disrupt funeral
The Legislature finds and declares:
    a. Families have a substantial interest in attending funeral services for their loved ones;
    b. The interests of families in privately and peacefully mourning the loss of their relatives are violated when funerals are targeted for disruption, picketing and other demonstrations;
    c. Such disruption causes emotional disturbance and distress to grieving families; and
    d. It is in the interest of the State of New Jersey to protect families’ privacy immediately prior to, during and after a funeral service.
Recent cases: 3. Police Could Not Search Bag in Stolen Car Without a Warrant. State v. Carroll 386 NJ Super. 143 (App. Div. 2006)
Although the warrantless police search and seizure of a bag with narcotics from a stolen vehicle following a police chase and the arrest of the vehicle's driver was not justified under the incident-to-arrest exception in light of the New Jersey Supreme Court's recent decisions in State v. Eckel and State v. Dunlap, the search was constitutional under the automobile exception and the doctrine of abandonment.
Source: Facts-on-Call Order No. 93053
4. Eyewitness 911 Call to Report Attack Admissible as Excited Utterance. State in the Interest of J.A 385 NJ Super. 544 (App. Div. 2006)
In this adjudication of delinquency, the non testifying eyewitness's description of an assailant -- which was made to the police by phone while he witnessed the attack and pursued the fleeing suspect -- was a present sense impression under N.J.R.E. 803(c)(1) and an excited utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not violate the U.S. Supreme Court's decision in Crawford v. Washington.
Source: Facts-on-Call Order No. 93030
5 NJ Supreme Court rejects Gay marriage in New Jersey but supports equal rights
Lewis v. . Harris
SUPREME COURT OF NEW JERSEY
Decided October 25, 2006 (Docket A-68-05)
Plaintiffs are seven same-sex couples who have been in permanent committed relationships for more than ten years. Each seeks to marry his or her partner and to enjoy the legal, financial, and social benefits that marriage affords. After being denied marriage licenses in their respective municipalities, plaintiffs sued challenging the constitutionality of the State's marriage statutes.
    In a complaint filed in the Superior Court, Law Division, plaintiffs sought a declaration that laws denying same-sex marriage violated the liberty and equal protection guarantees of Article I, Paragraph 1 of the New Jersey Constitution.
   Â
HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.
_____________________________
New- Our law blog- http://njlaws1.blogspot.com/
Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
"Celebrating more than 20 years of providing excellent service to clients 1985-2006" Former Prosecutor
This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com.
Free T- shirts and soda can holders available for all current and past clients. Please come into office.
Editor's Note and Disclaimer: All materials Copyright 2006. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison , NJ 08817
Phone: 732-572-0500
Fax: 732-572-0030
Web site: http://www.njlaws.com
E-mail: Kenvnjlaws@verizon.net
Thursday, October 26, 2006
NJ Supreme Court rejects Gay marriage in New Jersey
Mark Lewis and Dennis Winslow, v. Gwendolyn L. Harris
NJ Supreme Court rejects Gay marriage in New Jersey
SUPREME COURT OF NEW JERSEY
Decided October 25, 2006
(Docket A-68-05)
ALBIN, J., wrote for a majority of the Court.
Plaintiffs are seven same-sex couples who have been in permanent committed relationships for more than ten years. Each seeks to marry his or her partner and to enjoy the legal, financial, and social benefits that marriage affords. After being denied marriage licenses in their respective municipalities, plaintiffs sued challenging the constitutionality of the State's marriage statutes.
In a complaint filed in the Superior Court, Law Division, plaintiffs sought a declaration that laws denying same-sex marriage violated the liberty and equal protection guarantees of Article I, Paragraph 1 of the New Jersey Constitution. They also sought injunctive relief compelling the defendant State officials to grant them marriage licenses. (The named defendants are Gwendolyn L. Harris, former Commissioner of the Department of Human Services, Clifton R. Lacy, former Commissioner of the Department of Health and Senior Services, and Joseph Komosinski, former Acting State Registrar of Vital Statistics. For the purpose of this decision, they are being referred to collectively as the "State.")
ÊÊÊÊBoth parties moved for summary judgment. The trial court, Superior Court Judge Linda Feinberg, entered summary judgment in the State's favor and dismissed the complaint. Plaintiffs appealed. In a split decision, the Appellate Division affirmed. Judge Stephen Skillman wrote the majority opinion in which he concluded that New Jersey's marriage statutes do not contravene the substantive due process and equal protection guarantees of Article I, Paragraph 1 of the State Constitution. He determined that only the Legislature could authorize same-sex marriages.
ÊÊÊÊAppellate Division Judge Anthony Parrillo filed a concurring opinion. Although joining Judge Skillman's opinion, Judge Parrillo added his view of the twofold nature of the relief sought by plaintiffs -- the right to marry and the rights of marriage. He submitted that it was the Legislature's role to weigh the benefits and costs flowing from a profound change in the meaning of marriage.
ÊÊÊÊAppellate Division Judge Donald Collester, Jr., dissented. He concluded that the substantive due process and equal protection guarantees of Article I, Paragraph 1 obligate the State to afford same-sex couples the right to marry on terms equal to those afforded opposite-sex couples.
ÊÊÊÊThe matter came before the Court as an appeal as of right by virtue of the dissent in the Appellate Division.
HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.
1. As this case presents no factual dispute, the Court addresses solely questions of law. The Court perceives plaintiffs' equal protection claim to have two components: whether committed same-sex couples have a constitutional right to the benefits and privileges afforded to married heterosexual couples, and, if so, whether they have a constitutional right to have their relationship recognized by the name of marriage.
2. In attempting to discern the substantive rights that are "fundamental" under Article I, Paragraph 1, of the State Constitution, the Court has followed the general standard adopted by the United States Supreme Court in construing the Due Process Clause of the Fourteenth Amendment. First, the asserted fundamental liberty interest must be clearly identified. In this case, the identified right is the right of same-sex couples to marry. Second, the liberty interest in same-sex marriage must be objectively and deeply rooted in the traditions, history, and conscience of the people of this State.
3. New Jersey's marriage laws, which were first enacted in 1912, limit marriage to heterosexual couples. The recently enacted Domestic Partnership Act explicitly acknowledges that same-sex couples cannot marry. Although today there is a national debate over whether same-sex marriages should be authorized by the states, the framers of the 1947 New Jersey Constitution could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced same-sex marriage.
4. Times and attitudes have changed. There has been a developing understanding that discrimination against gays and lesbians is no longer acceptable in this State. On the federal level, the United States Supreme Court has struck down laws that have unconstitutionally targeted gays and lesbians for disparate treatment. Although plaintiffs rely on the federal cases to support the argument that they have a fundamental right to marry under our State Constitution, those cases fall far short of establishing a fundamental right to same-sex marriage "deeply rooted in the traditions, history, and conscience of the people of this State." Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, the Court cannot find that the right to same-sex marriage is a fundamental right under our constitution.
5. The Court has construed the expansive language of Article I, Paragraph 1 to embrace the fundamental guarantee of equal protection, thereby requiring the Court to determine whether the State's marriage laws permissibly distinguish between same-sex and heterosexual couples. The test the Court has applied to equal protection claims is a flexible one that includes three factors: the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction.
6. In conducting its equal protection analysis, the Court discerns two distinct issues. The first is whether same-sex couples have the right to the statutory benefits and privileges conferred on heterosexual married couples. Assuming that right, the next issue is whether committed same-sex partners have a constitutional right to define their relationship by the name of marriage.
7. New Jersey's courts and its Legislature have been at the forefront of combating sexual orientation discrimination and advancing equality of treatment toward gays and lesbians. In 1992, through an amendment to the Law Against Discrimination (LAD), New Jersey became the fifth state to prohibit discrimination on the basis of "affectional or sexual orientation." In making sexual orientation a protected category, the Legislature committed New Jersey to the goal of eradicating discrimination against gays and lesbians. In 2004, the Legislature added "domestic partnership status" to the categories protected by the LAD.
8. Discrimination on the basis of sexual orientation is also outlawed in our criminal law and public contracts law. The Legislature, moreover, created the New Jersey Human Relations Council to promote educational programs aimed at reducing bias and bias-related acts, identifying sexual orientation as a protected category. In 2004, the Legislature passed the Domestic Partnership Act, which confers certain benefits and rights on same-sex partners who enter into a partnership under the Act.
9. The Domestic Partnership Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples. Significantly, the economic and financial inequities that are borne by same-sex domestic partners are also borne by their children. Further, even though same-sex couples are provided fewer benefits and rights by the Act, they are subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering a marriage.
10. At this point, the Court does not consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples. Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people.
11. The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving committed same-sex couples of the host of benefits and privileges that are afforded to married heterosexual couples. There is, on the one hand, no rational basis for giving gays and lesbians full civil rights as individuals while, on the other hand, giving them an incomplete set of rights when they enter into committed same-sex relationships. To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, the Court cannot discern a public need that would justify the legal disabilities that now afflict same-sex domestic partnerships.
12. In arguing to uphold the system of disparate treatment that disfavors same-sex couples, the State offers as a justification the interest in uniformity with other states' laws. Our current laws concerning same-sex couples are more in line with those of Vermont, Massachusetts, and Connecticut than the majority of other states. Equality of treatment is a dominant theme of our laws and a central guarantee of our State Constitution. This is fitting for a state with so diverse a population. Article I, Paragraph 1 protects not only the rights of the majority but also the rights of the disfavored and the disadvantaged; they too are promised a fair opportunity for "pursuing and obtaining safety and happiness."
13. The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union. Because this State has no experience with a civil union construct, the Court will not speculate that identical schemes offering equal rights and benefits would create a distinction that would offend Article I, Paragraph 1, and will not presume that a difference in name is of constitutional magnitude. New language is developing to describe new social and familial relationships, and in time will find a place in our common vocabulary. However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship.
14. In the last two centuries, the institution of marriage has reflected society's changing social mores and values. Legislatures, along with courts, have played a major role in ushering marriage into the modern era of equality of partners. The great engine for social change in this country has always been the democratic process. Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society. Plaintiffs' quest does not end here. They must now appeal to their fellow citizens whose voices are heard through their popularly elected representatives.
15. To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision
NJ Supreme Court rejects Gay marriage in New Jersey
SUPREME COURT OF NEW JERSEY
Decided October 25, 2006
(Docket A-68-05)
ALBIN, J., wrote for a majority of the Court.
Plaintiffs are seven same-sex couples who have been in permanent committed relationships for more than ten years. Each seeks to marry his or her partner and to enjoy the legal, financial, and social benefits that marriage affords. After being denied marriage licenses in their respective municipalities, plaintiffs sued challenging the constitutionality of the State's marriage statutes.
In a complaint filed in the Superior Court, Law Division, plaintiffs sought a declaration that laws denying same-sex marriage violated the liberty and equal protection guarantees of Article I, Paragraph 1 of the New Jersey Constitution. They also sought injunctive relief compelling the defendant State officials to grant them marriage licenses. (The named defendants are Gwendolyn L. Harris, former Commissioner of the Department of Human Services, Clifton R. Lacy, former Commissioner of the Department of Health and Senior Services, and Joseph Komosinski, former Acting State Registrar of Vital Statistics. For the purpose of this decision, they are being referred to collectively as the "State.")
ÊÊÊÊBoth parties moved for summary judgment. The trial court, Superior Court Judge Linda Feinberg, entered summary judgment in the State's favor and dismissed the complaint. Plaintiffs appealed. In a split decision, the Appellate Division affirmed. Judge Stephen Skillman wrote the majority opinion in which he concluded that New Jersey's marriage statutes do not contravene the substantive due process and equal protection guarantees of Article I, Paragraph 1 of the State Constitution. He determined that only the Legislature could authorize same-sex marriages.
ÊÊÊÊAppellate Division Judge Anthony Parrillo filed a concurring opinion. Although joining Judge Skillman's opinion, Judge Parrillo added his view of the twofold nature of the relief sought by plaintiffs -- the right to marry and the rights of marriage. He submitted that it was the Legislature's role to weigh the benefits and costs flowing from a profound change in the meaning of marriage.
ÊÊÊÊAppellate Division Judge Donald Collester, Jr., dissented. He concluded that the substantive due process and equal protection guarantees of Article I, Paragraph 1 obligate the State to afford same-sex couples the right to marry on terms equal to those afforded opposite-sex couples.
ÊÊÊÊThe matter came before the Court as an appeal as of right by virtue of the dissent in the Appellate Division.
HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to same-sex couples, whether marriage or some other term, is a matter left to the democratic process.
1. As this case presents no factual dispute, the Court addresses solely questions of law. The Court perceives plaintiffs' equal protection claim to have two components: whether committed same-sex couples have a constitutional right to the benefits and privileges afforded to married heterosexual couples, and, if so, whether they have a constitutional right to have their relationship recognized by the name of marriage.
2. In attempting to discern the substantive rights that are "fundamental" under Article I, Paragraph 1, of the State Constitution, the Court has followed the general standard adopted by the United States Supreme Court in construing the Due Process Clause of the Fourteenth Amendment. First, the asserted fundamental liberty interest must be clearly identified. In this case, the identified right is the right of same-sex couples to marry. Second, the liberty interest in same-sex marriage must be objectively and deeply rooted in the traditions, history, and conscience of the people of this State.
3. New Jersey's marriage laws, which were first enacted in 1912, limit marriage to heterosexual couples. The recently enacted Domestic Partnership Act explicitly acknowledges that same-sex couples cannot marry. Although today there is a national debate over whether same-sex marriages should be authorized by the states, the framers of the 1947 New Jersey Constitution could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced same-sex marriage.
4. Times and attitudes have changed. There has been a developing understanding that discrimination against gays and lesbians is no longer acceptable in this State. On the federal level, the United States Supreme Court has struck down laws that have unconstitutionally targeted gays and lesbians for disparate treatment. Although plaintiffs rely on the federal cases to support the argument that they have a fundamental right to marry under our State Constitution, those cases fall far short of establishing a fundamental right to same-sex marriage "deeply rooted in the traditions, history, and conscience of the people of this State." Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, the Court cannot find that the right to same-sex marriage is a fundamental right under our constitution.
5. The Court has construed the expansive language of Article I, Paragraph 1 to embrace the fundamental guarantee of equal protection, thereby requiring the Court to determine whether the State's marriage laws permissibly distinguish between same-sex and heterosexual couples. The test the Court has applied to equal protection claims is a flexible one that includes three factors: the nature of the right at stake, the extent to which the challenged statutory scheme restricts that right, and the public need for the statutory restriction.
6. In conducting its equal protection analysis, the Court discerns two distinct issues. The first is whether same-sex couples have the right to the statutory benefits and privileges conferred on heterosexual married couples. Assuming that right, the next issue is whether committed same-sex partners have a constitutional right to define their relationship by the name of marriage.
7. New Jersey's courts and its Legislature have been at the forefront of combating sexual orientation discrimination and advancing equality of treatment toward gays and lesbians. In 1992, through an amendment to the Law Against Discrimination (LAD), New Jersey became the fifth state to prohibit discrimination on the basis of "affectional or sexual orientation." In making sexual orientation a protected category, the Legislature committed New Jersey to the goal of eradicating discrimination against gays and lesbians. In 2004, the Legislature added "domestic partnership status" to the categories protected by the LAD.
8. Discrimination on the basis of sexual orientation is also outlawed in our criminal law and public contracts law. The Legislature, moreover, created the New Jersey Human Relations Council to promote educational programs aimed at reducing bias and bias-related acts, identifying sexual orientation as a protected category. In 2004, the Legislature passed the Domestic Partnership Act, which confers certain benefits and rights on same-sex partners who enter into a partnership under the Act.
9. The Domestic Partnership Act has failed to bridge the inequality gap between committed same-sex couples and married opposite-sex couples. Significantly, the economic and financial inequities that are borne by same-sex domestic partners are also borne by their children. Further, even though same-sex couples are provided fewer benefits and rights by the Act, they are subject to more stringent requirements to enter into a domestic partnership than opposite-sex couples entering a marriage.
10. At this point, the Court does not consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples. Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people.
11. The State does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving committed same-sex couples of the host of benefits and privileges that are afforded to married heterosexual couples. There is, on the one hand, no rational basis for giving gays and lesbians full civil rights as individuals while, on the other hand, giving them an incomplete set of rights when they enter into committed same-sex relationships. To the extent that families are strengthened by encouraging monogamous relationships, whether heterosexual or homosexual, the Court cannot discern a public need that would justify the legal disabilities that now afflict same-sex domestic partnerships.
12. In arguing to uphold the system of disparate treatment that disfavors same-sex couples, the State offers as a justification the interest in uniformity with other states' laws. Our current laws concerning same-sex couples are more in line with those of Vermont, Massachusetts, and Connecticut than the majority of other states. Equality of treatment is a dominant theme of our laws and a central guarantee of our State Constitution. This is fitting for a state with so diverse a population. Article I, Paragraph 1 protects not only the rights of the majority but also the rights of the disfavored and the disadvantaged; they too are promised a fair opportunity for "pursuing and obtaining safety and happiness."
13. The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include same-sex couples, or it could create a separate statutory structure, such as a civil union. Because this State has no experience with a civil union construct, the Court will not speculate that identical schemes offering equal rights and benefits would create a distinction that would offend Article I, Paragraph 1, and will not presume that a difference in name is of constitutional magnitude. New language is developing to describe new social and familial relationships, and in time will find a place in our common vocabulary. However the Legislature may act, same-sex couples will be free to call their relationships by the name they choose and to sanctify their relationships in religious ceremonies in houses of worship.
14. In the last two centuries, the institution of marriage has reflected society's changing social mores and values. Legislatures, along with courts, have played a major role in ushering marriage into the modern era of equality of partners. The great engine for social change in this country has always been the democratic process. Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society. Plaintiffs' quest does not end here. They must now appeal to their fellow citizens whose voices are heard through their popularly elected representatives.
15. To bring the State into compliance with Article I, Paragraph 1 so that plaintiffs can exercise their full constitutional rights, the Legislature must either amend the marriage statutes or enact an appropriate statutory structure within 180 days of the date of this decision
Sunday, October 22, 2006
Police are not required to have a reasonable and articulable suspicion that criminal activity in home before consent search
State v. Keith R. Domicz (A-42-05)
Argued March 21, 2006 -- Decided September 20, 2006
ALBIN, J., writing for a majority of the Court.
After a search of his home resulted in the seizure of marijuana and growing equipment, defendant Keith R. Domicz was indicted on charges of operating a controlled dangerous substance (CDS) production facility, possession with intent to distribute a CDS (marijuana), and possession of CDS (marijuana and methamphetamine).
Six months before defendant’s home was searched, Detective William Peacock of the New Jersey State Police Marijuana Eradication Unit learned that defendant had received specialized horticultural equipment commonly used to grow marijuana. Pursuant to a grand jury subpoena, the police obtained electrical use records of defendant’s residence. Those records did not provide any useful investigative information. Two months later, without a warrant, Detective Peacock conducted a thermal scan of defendant’s home to determine whether there was an unusual amount of heat, which might indicate the use of specialized marijuana growth equipment. The thermal scan also did not provide any leads.
At the suppression hearing, the State and defendant presented conflicting accounts of what occurred on the day of the search. According to the State, five detectives dressed in plain clothes went to defendant’s home. Three detectives went to the front door. Along with another officer, Detective Peacock went to the back door, which he believed was used as an entrance because of the location of the cars in the driveway. When defendant answered the front door, those two detectives joined the others at the front of the house. One detective identified himself and told defendant, “We need to speak to you.” Defendant replied, “Come on in, get out of the rain.” When they entered, Detective Peacock noticed a strong odor of raw marijuana. He introduced himself as a member of the State Police Marijuana Eradication Unit and said, “We’re here to request permission to search your residence.” He presented a consent-to-search form, which he read and explained to defendant. At one point, defendant put his head down and said, “I have 40 plants in the basement.” Detective Peacock responded, “We’ll get to that in a minute,” and finished reading the consent form, while defendant listened and looked at the form. Detective Peacock advised defendant that the right to refuse to give consent to the search. The other officers did not surround or intimidate defendant. Defendant authorized the search by signing the form under a statement that read: “I have knowingly and voluntarily given my consent” and “fully understand that I have the right to refuse giving my consent to search.” The detectives then searched the house and found nearly 100 plants in the basement and growing next to the garage, an apparatus for cultivating marijuana plants, bags of processed marijuana, a digital scale, and a bag of methamphetamine.
Defendant’s version of the events was very different. He testified that three detectives came to his front door, where the “head guy” showed a badge and said he had a search warrant. Without permission, they came into the house and let the two other officers in the back door. Defendant was handcuffed, told to sit on a couch, and read his rights. An hour later, the detectives gave defendant a form to sign, but they did not read it or explain it to him.
At the hearing, the trial court did not allow testimony from a polygraph examiner who would have testified for the defense about the results of a polygraph examination taken by defendant. The trial court denied defendant’s motion to suppress the evidence seized from his home. The court accepted Detective Peacock’s testimony and rejected defendant’s testimony as unbelievable, and determined that the State had proven by clear and convincing evidence that defendant knowingly and voluntarily consented to the search. Defendant pled guilty to operating a CDS production facility. He was sentenced to 10 years in prison with a 40-month period of parole ineligibility. The remaining charges were dropped.
The Appellate Division, in an opinion published at 377 N.J. Super. 515 (2005), reversed the suppression order, vacated defendant’s conviction, and remanded for a new suppression hearing. The panel found that the warrantless thermal scan of defendant’s home and warrantless seizure of his utility records were unconstitutional, may have “tainted” defendant’s consent, and could cast doubt upon the credibility of Detective’s Peacock’s version of events. Although not previously raised by defendant, the panel also held that police officers must have a reasonable and articulable suspicion that criminal activity is occurring inside a residence before requesting consent to search the home. Finally, the panel would have allowed testimony about the polygraph test.
The Supreme Court granted certification. 185 N.J. 268 (2005). The Court also granted the motion of the Criminal Defense Lawyers of New Jersey to participate as amicus curiae.
HELD: Under the circumstances, the warrantless thermal scan and seizure of electricity records did not constitute prior unlawful conduct that could have tainted the later search. Grand jury subpoena procedures adequately protect any privacy interest in utility records. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence.
1. The record does not support a conclusion that the detectives engaged in prior unlawful conduct that tainted the consent search. At the time Detective Peacock conducted the thermal scan, a majority of federal courts had ruled that a thermal scan was not a “search” requiring a warrant under the Fourth Amendment. The detective’s failure to predict that one year later the United State Supreme Court would reach the opposite conclusion cannot be considered part of a pattern of illegality or used to impair his credibility. (pp. 12-15)
2. A grand jury subpoena is sufficient to satisfy whatever privacy interest defendant had in his electricity records under Article I, Paragraph 7 of the State Constitution. The Court previously held that grand jury subpoena procedures sufficiently protect citizens’ reasonable expectation of privacy in bank records. There is no persuasive reason why utility records should be given more protection than bank records, which expose more about a person’s private life. (pp. 15-20)
3. The area around a home to which the public is welcome, such as a walkway leading to an entrance, is not given Fourth Amendment protection because the resident has given implied consent to visitors to approach the home that way. When a law enforcement officer walks to a back door of a home to make contact with a resident and, as the trial court found in this case, reasonably believes that the door is used by visitors, there is no unconstitutional trespass. (pp. 21-23)
4. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence. The Court does not extend its decision in State v. Carty, 170 N.J. 632 (2002), which requires a reasonable and articulable suspicion of criminal wrongdoing before seeking consent to search a lawfully stopped motor vehicle, to the search of a home. Carty addressed concerns about racial profiling on New Jersey highways and widespread abuse of consent searches of vehicles stopped for minor traffic violations. There is no claim here that there is an abuse of consent searches of homes or that minority residents are disproportionately targeted by such searches. Also, a person in his home is under less compulsion to consent to a search than a motorist on the highway after a motor vehicle stop. (pp. 24-33)
5. The trial court correctly rejected defendant’s attempt to introduce testimony about the results of an unstipulated private polygraph test he took in his lawyer’s office eighteen months after the search of his home. The Court declines to extend its decision in State v. McDavitt, 62 N.J. 36 (1972) (holding that results of polygraph examination are admissible only “in a criminal case when the State and defendant enter into a stipulation to have defendant submit to a polygraph test”) to unstipulated polygraph examinations, even in a suppression hearing presided over by a judge. Judges are capable of making credibility decisions in the traditional way, by assessing the testimony and demeanor of the witness. (pp. 33-40)
The judgment of the Appellate Division is REVERSED and the judgment of conviction is REINSTATED.
JUSTICE WALLACE, JR., joined by CHIEF JUSTICE PORITZ and JUSTICE LONG, has filed a separate opinion CONCURRING in part and DISSENTING in part. In his view, the Court was not required to address the issue of whether the reasonable and articulable suspicion standard is a prerequisite to a consent search of a home, as defendant did not raise the issue at his suppression hearing or before the Appellate Division. The majority having decided the issue, Justice Wallace is of the view that the reasonable and articulate suspicion standard applies to a consent search of a home.
JUSTICES LaVECCHIA, ZAZZALI, and RIVERA-SOTO join in JUSTICE ALBIN’s opinion. JUSTICE WALLACE filed a separate opinion concurring in part and dissenting in part, in which CHIEF JUSTICE PORITZ and JUSTICE LONG join.
SUPREME COURT OF NEW JERSEY
A- 42 September Term 2005
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KEITH R. DOMICZ,
Defendant-Respondent.
Argued March 21, 2006 – Decided September 20, 2006
On certification to the Superior Court, Appellate Division, whose opinion is reported at 377 N.J. Super. 515 (2005).
Paul H. Heinzel and Leslie-Ann M. Justus, Deputy Attorneys General, argued the cause for appellant (Zulima V. Farber, Attorney General of New Jersey, attorney; Mr. Heinzel, Ms. Justus, Deborah C. Bartolomey, Daniel I. Bornstein and Russell J. Curley, Deputy Attorneys General, on the briefs).
Alison S. Perrone, Designated Counsel, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).
William H. Buckman and Justin T. Loughry submitted a brief on behalf of amicus curiae, Association of Criminal Defense Lawyers of New Jersey.
JUSTICE ALBIN delivered the opinion of the Court.
This case involves defendant Keith R. Domicz’s challenge to the constitutionality of a police search of his home that resulted in the seizure of nearly one hundred marijuana plants and assorted growing equipment. After a testimonial hearing, the trial court denied defendant’s motion to suppress the evidence seized from his home, determining that defendant knowingly and voluntarily consented to the search. In overturning that ruling and ordering a new suppression hearing, the Appellate Division reached a number of novel legal conclusions that are not supported by our established constitutional jurisprudence and case law. Therefore, we now reverse.
I.
A.
A state grand jury returned an indictment charging defendant with first-degree maintaining or operating a controlled dangerous substance (CDS) production facility, in violation of N.J.S.A. 2C:35-4; first-degree possession with intent to distribute a CDS (marijuana), in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(a); fourth-degree possession of a CDS (marijuana), in violation of N.J.S.A. 2C:35-10(a)(3); and third-degree possession of a CDS (methamphetamine), in violation of N.J.S.A. 2C:35-10(a)(1).
At a suppression hearing, the State and defendant presented conflicting accounts of what occurred at defendant’s home on July 27, 2000. See footnote 1 Detective William Peacock of the New Jersey State Police Marijuana Eradication Unit testified that defendant first attracted his attention six months earlier when he learned that defendant had received at his home in the Williamstown section of Monroe Township, Gloucester County, four packages of specialized horticultural equipment “commonly used to grow marijuana.” That the equipment also had legitimate uses did not dampen the detective’s interest. As part of the detective’s investigation, a grand jury subpoena See footnote 2 was issued for the electrical use records of defendant’s residence and two “comparable houses.” With those records, the State Police supposedly could compare defendant’s electrical usage in his home with similarly situated consumers. Those records, it appears, did not provide any useful information linking defendant’s electricity consumption with the suspected harvesting of marijuana in his home.
About two months before the search, Detective Peacock conducted a thermal scan of defendant’s home to determine whether an abnormal amount of heat was emanating from it. See footnote 3 Detective Peacock did not seek authorization for the thermal scan by means of a search warrant because he did not think that a warrant was necessary. See footnote 4 The thermal scan, as well as Detective Peacock’s frequent drives by defendant’s home on his commute to work, did not provide any investigative leads.
On the rainy morning of July 27, 2000, accompanied by two State Police detectives, a Monroe Township Police detective, and a Gloucester County Prosecutor’s Office detective, Detective Peacock went to defendant’s home for a “knock and talk.” The goal was to speak with defendant and, if possible, gain his consent to search his home. Detective Peacock admitted that he did not have probable cause to secure a search warrant.
The officers were all dressed in plain clothes. Three proceeded to defendant’s front door while Detective Peacock and State Police Detective Dennis Donovan approached the back door by passing through a gate that separated the driveway from the rear of the residence. Because of the location of cars in defendant’s driveway, it appeared to Detective Peacock that the back door was used as an entrance to the home. Immediately after Detective Peacock knocked on the door, State Police Detective Sergeant Joe DiBiase advised him that defendant was at the front door. Detectives Peacock and Donovan then joined the other officers at the front of the house. In a calm and professional tone, with the other officers standing behind him, Detective Sergeant DiBiase identified himself to defendant and told him, “We need to speak to you.” Defendant invited the officers inside, saying, “Come on in, get out of the rain.”
As soon as Detective Peacock entered the house, he “detected a strong odor of raw marijuana.” Detective Peacock introduced himself as a member of the State Police Marijuana Eradication Unit and said, “We’re here to request permission to search your residence.” They were standing in a small room, about eight or ten feet square, adjacent to the kitchen, where defendant’s girlfriend was located. Detective Peacock then presented to defendant a consent-to-search form and began reading and explaining the form to him. At that point, defendant put his head down and said, “I have 40 plants in the basement.” Detective Peacock responded, “We’ll get to that in a minute,” and continued reading the consent form in its entirety to defendant, who was listening attentively and looking at the form. Among other things, Detective Peacock advised defendant that he had the right to refuse to give consent to the search. At no point did the other detectives surround, hover over, or intimidate defendant. After the form was read to him, defendant authorized the search by signing the form beneath the following acknowledgement: “I have knowingly and voluntarily given my consent to the search . . . and fully understand that I have the right to refuse giving my consent to search.”
The detectives then searched the house. At the foot of the basement stairs, they found thirty-nine marijuana plants stashed in garbage bags. In a makeshift plywood room in the basement, they found forty-four actively growing marijuana plants, as well as apparatus for cultivating marijuana plants. They also found nine clear plastic bags containing processed marijuana in the kitchen freezer; three bags of marijuana, a digital scale, and a bag of methamphetamine in the master bedroom; and a bag of marijuana in another bedroom. In addition, Detective Peacock and two of the officers observed in plain view another fourteen marijuana plants growing next to the garage.
Defendant offered a starkly different version of the events surrounding the search. Defendant testified that at around 7:00 or 8:00 a.m. on July 27, 2000, three detectives arrived at his front door. The “head guy” showed him a badge and stated that he had a search warrant, and then, without asking permission, the three detectives entered his house. The detectives then opened the back door, letting in two other officers. Defendant was handcuffed, told to sit on a couch where his girlfriend was also seated, and read his rights. Approximately one hour later, the detectives presented a document to defendant without reading or explaining it to him. Defendant signed the folded document as he was told to do. He denied that he ever read the document or was ever advised of his right to refuse to consent to the search. He also suggested that the detectives concealed the contents of the document by folding it in half before he signed it.
Retired State Police Lieutenant Vincent Bellaran testified for the defense. He stated that the detectives involved in the case did not use the most recently issued consent form, which apparently had been adapted to deal with motor vehicle stops. Last, the trial court did not allow defense witness Alan Hart, a polygraph examiner, to testify about the results of a polygraph examination taken by defendant.
In denying defendant’s motion to suppress, the trial court determined that the State had carried its burden of proving by clear and convincing evidence that defendant voluntarily and knowingly consented to the search of his house and garage. The court made specific credibility findings, accepting Detective Peacock’s testimony and rejecting defendant’s testimony as unbelievable. The court did not credit defendant’s argument that the detectives tricked and coerced him into signing the consent form or that they had folded it in half to conceal its true nature. The court accepted as truthful Detective Peacock’s assertion that he smelled the odor of raw marijuana upon entering defendant’s house. The court also weighed favorably Detective Peacock’s candid admission that he did not have probable cause to conduct a search at the time he proceeded with the “knock and talk” with defendant. The court found Lieutenant Bellaran’s testimony to have no value because the Lieutenant did not specify whether the consent “forms are different for motor vehicle searches as opposed to” other kinds of searches.
After entering into a plea agreement with the State, defendant pled guilty to operating a CDS production facility. On that charge, the court sentenced defendant to ten years imprisonment with a forty-month parole ineligibility period, imposed financial penalties, and suspended his driving privileges for twelve months. In accordance with the plea agreement, the remaining charges were dismissed.
Defendant appealed the denial of his suppression motion.
B.
The Appellate Division reversed the trial court’s suppression order and vacated his conviction based on its determination that the warrantless thermal scan of defendant’s home violated the Fourth Amendment of the United States Constitution and the warrantless seizure of his utility records violated Article I, Paragraph 7 of the New Jersey Constitution. State v. Domicz, 377 N.J. Super. 515, 561 (App. Div. 2005). The appellate panel remanded for a new hearing before a different judge to consider “whether [defendant’s consent] was tainted by the prior unlawful conduct” and to weigh the impact of that conduct “(1) on the credibility of the police version of the alleged consent search, (2) on the legitimacy of the manner in which the police sought consent, and (3) on whether police had a reasonable suspicion that would justify seeking defendant’s consent to a search of his home.” Id. at 548-59. The panel also concluded that the court “erred by failing to allow testimony about a polygraph test administered to defendant.” Id. at 523.
The warrantless thermal scan of defendant’s home in this case occurred more than one year before the United States Supreme Court in Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 2046, 150 L. Ed.2d 94, 106 (2001), ruled that the Fourth Amendment required law enforcement officers to secure a warrant to conduct such a “search.” Domicz, supra, 377 N.J. Super. at 530-31. Before Kyllo, a majority of courts in the country did not consider a thermal scan a search triggering the protections of the Fourth Amendment. Id. at 532. Nonetheless, the panel held that Detective Peacock and his fellow officers should have anticipated that under Article I, Paragraph 7 of our State Constitution, the courts of this State would prohibit thermal scans of homes without a warrant. Id. at 532-34.
Similarly, the panel held that the officers should have anticipated that a warrantless seizure of utility records would also be declared an unreasonable seizure under Article I, Paragraph 7 by our state courts. Id. at 536-38. In this “matter of first impression” in New Jersey, the panel concluded “that there is a legitimate expectation of privacy in electrical usage records maintained by a power company that precludes the intrusion of law enforcement in the absence of a warrant.” Id. at 538, 546.
The panel considered the conducting of a thermal scan without a warrant and the acquisition of the electrical utility records by a grand jury subpoena to be not only “unlawful conduct,” but also prior bad acts evidence that might suggest that the police also engaged in an unlawful search of defendant’s home. Id. at 549-50. “In other words,” the panel explained, “the [court] is entitled to doubt the likelihood that the officers acted in a constitutionally permissible manner on July 27, 2000, when they did not so act on prior occasions.” Id. at 549. The “prior willingness of the police to engage in unlawful conduct,” the panel stated, could be used to impugn the “credibility of the police version” and lead a court to conclude that defendant’s account was the more believable one. Id. at 549-50. In the same vein, the panel maintained that at a new suppression hearing the court could consider “whether the warrantless intrusion by Detective Peacock and another officer into the gated backyard of defendant’s property” violated the Fourth Amendment and, if so, its impact on “the credibility of the State’s contention that the police acted lawfully when seeking defendant’s consent to a search of his home.” Id. at 550.
Additionally, although defendant did not raise the issue either at the suppression hearing or on appeal, the panel held that police officers must have a reasonable and articulable suspicion that criminal activity is occurring inside a home before requesting consent to search the premises. Id. at 551. By that first-time-ever ruling, the panel extended to the searches of homes the standard that we made applicable to searches of motor vehicles in State v. Carty, 170 N.J. 632, modified on other grounds, 174 N.J. 351 (2002). Domicz, supra, 377 N.J. Super. at 551. The panel “seriously question[ed] whether this standard could be met on the evidence” in the present case. Ibid.
Finally, the panel concluded that defendant should have been given the opportunity to present the results of the polygraph test administered to him by a private polygraph examiner. In yet another matter of first impression, the panel determined that the admissibility of polygraph evidence “in a non-jury setting” is not dependent on a prior agreement between the State and the defendant, thus carving out an exception to the stipulation requirement of State v. McDavitt, 62 N.J. 36 (1972). Domicz, supra, 377 N.J. Super. at 557-58. The panel expressly held that subject to N.J.R.E. 403, “polygraph evidence may be admitted at a suppression hearing, even in the absence of the consent of the State, when credibility is an issue.” Id. at 559-60.
We granted the State’s motion for a stay of the Appellate Division decision, and then its petition for certification. 185 N.J. 268 (2005). We also granted the motion of the Association of Criminal Defense Lawyers of New Jersey to participate as amicus curiae.
II.
We begin by addressing whether the warrantless conducting of a thermal scan of defendant’s home and the acquiring of defendant’s electric utility records pursuant to a grand jury subpoena constituted “unlawful conduct” that could taint the consent search of defendant’s home. The Appellate Division submits that the willingness of the police officers to engage in prior misconduct is evidence that might suggest that the consent search was itself a sham. Domicz, supra, 377 N.J. Super. at 548-50. The panel contends that the prior illegalities could impugn the credibility of Detective Peacock’s account of what occurred on July 27, 2000. Ibid.
A.
First, the panel’s conclusion that the police officers in this case engaged in “prior unlawful conduct” that tainted the consent search cannot be supported on this record. When Detective Peacock conducted the warrantless thermal scan of defendant’s home in May 2000, a majority of the federal circuit courts of appeal had ruled that such a surveillance procedure did not constitute a “search” within the meaning of the Fourth Amendment. United States v. Elkins, 300 F.3d 638, 646 (6th Cir. 2002). In those jurisdictions, therefore, the police did not have to seek a warrant to engage in a procedure that was not deemed a search. At the time of the thermal scan of defendant’s home, no court in this State had addressed the issue. In June 2001, the constitutional landscape became clear when in a five-four decision the United States Supreme Court issued Kyllo v. United States, supra. There, the Court held that when law enforcement officials “use[] a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant” under the Fourth Amendment. 533 U.S. at 40, 121 S. Ct. at 2046, 150 L. Ed. 2d at 106.
We need not decide here whether Kyllo should retroactively apply to this case, which was on appeal at the time of the United States Supreme Court’s decision, or whether this State would have come to a similar result under Article I, Paragraph 7 to the one reached by the Kyllo majority. From the record before us, Detective Peacock learned nothing of value from the thermal scan of defendant’s home. Accordingly, there was nothing wrongfully seized that law enforcement could exploit to defendant’s detriment. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed.2d 441, 454 (1963); State v. Badessa, 185 N.J. 303, 311 (2005). No one has suggested that Detective Peacock developed a lead from the scan or that it somehow furthered the investigation. Without any tangible result from the scan, there was nothing to suppress. Thus, even if Kyllo applied, we fail to see how the thermal scan affected the later consent search.
We cannot agree with the Appellate Division that the failure of the law enforcement officials in this case to anticipate the Kyllo decision, along with most federal circuit courts, suggests willful misconduct, or that such a lack of prescience should be considered part of a pattern of illegality or be used to impair the credibility of an investigating detective. Nor can we agree that the officers may have engaged in willful misconduct because they did not have the foresight to predict what this Court might have done under this State’s Constitution if it had been faced with the Kyllo issue. Even experienced and able jurists, at times, have been unable to forecast decisions of this Court. To permit a court to infer willful wrongdoing from the failure of Detective Peacock to obtain a thermal scan warrant would be unfair and unreasonable in the circumstances of this case.
B.
We next determine that whatever privacy interest attached to defendant’s utility records, the acquiring of those records by a grand jury subpoena satisfied Article I, Paragraph 7 of the State Constitution. The appellate panel appears to concede that no expectation of privacy recognized under the Fourth Amendment was breached when law enforcement officials obtained defendant’s electric utility records through a grand jury subpoena. See Domicz, supra, 377 N.J. Super. at 534-38. However, based on its view of this Court’s Article I, Paragraph 7 search-and-seizure jurisprudence, the panel concluded that defendant had a reasonable expectation of privacy in those records under our State Constitution that required law enforcement officials to obtain a warrant supported by probable cause. Id. at 533-38. Therefore, the panel held that the seizure of defendant’s electricity records by means of only a grand jury subpoena constituted an unlawful search. Id. at 534.
In rendering its decision, the Appellate Division did not have the benefit of our opinion in State v. McAllister, 184 N.J. 17 (2005). There, we held that “under the New Jersey Constitution, citizens have a reasonable expectation of privacy in bank records,” but that “existing grand jury subpoena procedures sufficiently protect that expectation.” Id. at 19. In light of that decision, neither defendant nor amicus curiae offer any persuasive reasons why electric utility records should be afforded greater protection than bank records.
We noted in McAllister that “the Federal Constitution does not recognize an expectation of privacy in bank records.” Id. at 24-26 (citing United States v. Payner, 447 U.S. 727, 100 S. Ct. 2439, 65 L. Ed.2d 468 (1980); United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed.2d 71 (1976)). Therefore, under the Fourth Amendment neither a warrant nor a grand jury subpoena is required for law enforcement officials to gain access to such records. See Payner, supra, 447 U.S. at 732, 100 S. Ct. at 2444, 65 L. Ed. 2d at 474; Miller, supra, 425 U.S. at 442-43, 446, 96 S. Ct. at 1623-24, 1626, 48 L. Ed 2d at 78-79, 81.
In contrast, under our State Constitution we “recognize a citizen’s reasonable expectation of privacy in his or her bank records, even when those records are in the possession of the bank.” McAllister, supra, 184 N.J. at 29. That privacy interest follows from the understanding that, by revealing a history of expenses and purchases, bank records can provide a “virtual current biography” of the account holder. See id. at 31. Bank customers provide personal financial information to banks with the expectation that such information “will remain confidential” and not be turned over to the government “without adequate process.” Ibid.
In McAllister, we acknowledged that an account holder’s privacy interest in his bank records under the New Jersey Constitution must be weighed against the legitimate investigatory needs of law enforcement. Id. at 33. Thus, we held “that the issuance of a grand jury subpoena duces tecum based on a relevancy standard satisfies the constitutional prohibition against improper governmental intrusion.” Id. at 36. We declined to impose a probable cause standard as a precondition to law enforcement officials obtaining a subpoena for bank records. Id. at 33-34, 36. Instead, we applied the prevailing standard for the issuance of a grand jury subpoena, requiring only that the records sought “bear some possible relationship, however indirect, to the grand jury investigation.” Id. at 34 (internal quotation marks omitted).
We discern no basis for treating electric utility records differently from bank records. We do not accept defendant’s comparison of warrantless thermal scanning of a home, which detects amounts of heat emanating from within the premises, to acquiring of utility records by a grand jury subpoena. Although both reveal details about activities within the home, thermal scanning is the equivalent of a physical intrusion into a residence by means of a highly sophisticated surveillance apparatus and therefore constitutes a “search” for purposes of the Fourth Amendment. See Kyllo, supra, 533 U.S. at 35-36, 40, 121 S. Ct. at 2044, 2046, 150 L. Ed 2d at 103, 106. We are not aware of any case that holds that obtaining residential utility records by lawful process is akin to a home invasion or constitutes a search.
Bank records expose much more about a person’s private life and activities within the home than utility records. Bank records may reveal all types of household items purchased and possessed by a person, such as furniture, artwork, and electronic equipment. Through check and debit card payments, those records may disclose what a person eats and drinks, what newspapers and magazines he reads, and even where he vacations. Bank records also may indicate the amount of a person’s utility and telephone bills. In comparison, utility records reveal only the total amount of electricity a person is using in his home on a periodic basis and the amount being paid for those services. It does not divulge personal details -- whether or when the person is watching television, talking on the telephone, or using any particular appliance. Thus, one could easily conclude that a person has a far greater expectation of privacy in his bank records than his utility records.
Significantly, no state court has interpreted its own constitution to mandate that the police first obtain a warrant to obtain electric utility records. The state courts that have considered the issue have rejected the notion that there is a legitimate expectation of privacy in such records. See Samson v. State, 919 P.2d 171, 173 (Alaska Ct. App. 1996) (holding that no reasonable expectation of privacy in utility records exists under Alaska Constitution); People v. Stanley, 86 Cal. Rptr. 2d 89, 94 (Cal. Ct. App. 1999) (finding that defendant did not have “a reasonable expectation of privacy in the quantity of electricity delivered by the utility to [his] house”); People v. Dunkin, 888 P.2d 305, 307 (Colo. Ct. App. 1994) (holding that there is no reasonable expectation of privacy in utility records under either State or Federal Constitution), cert. denied, Smith v. Colorado, 515 U.S. 1105, 115 S. Ct. 2251, 132 L. Ed.2d 259 (1995); State v. Kluss, 867 P.2d 247, 254 (Idaho Ct. App. 1993) (finding that there is no reasonable expectation of privacy in power records under State Constitution); In re Pers. Restraint of Maxfield, 945 P.2d 196 (Wash. 1997) (majority of justices concluding that no reasonable expectation of privacy exists in utility records under State Constitution). See footnote 5
We therefore conclude that defendant’s utility records were obtained properly through a grand jury subpoena and that the Appellate Division erred in finding that those records were obtained through unconstitutional means. See footnote 6 Because there was no official wrongdoing in acquiring the records, the Appellate Division had no basis to reverse the order denying defendant’s motion to suppress or to remand for a determination whether “prior unlawful conduct” tainted the consent search.
III.
We do not agree with the Appellate Division that the trial court “mistakenly rejected the significance of the fact that the officers, by passing through a gate and entering defendant’s backyard, had entered the curtilage of defendant’s home without consent, without a warrant and without probable cause.” Domicz, supra, 377 N.J. Super. at 550. In rendering its decision, the trial court stated that it found Detective Peacock’s testimony “to be credible and believable.” In recounting that testimony, the court recalled that Detective Peacock and a fellow officer passed through the rear gate and entered the curtilage for the purpose of knocking on defendant’s back door and speaking with him. The position of the parked cars in defendant’s driveway led the officers to believe that the back door was used by residents and visitors. The detectives did not observe any criminal wrongdoing or contraband before they were called to the front of the house where defendant had answered the door. Accepting that explanation as truthful, as the trial court did, there was no unconstitutional incursion of the curtilage of defendant’s home.
Curtilage is land adjacent to a home and may include walkways, driveways, and porches. State v. Johnson, 171 N.J. 192, 208-09 (2002). Whether the Fourth Amendment safeguards an area of curtilage depends on a consideration of various factors, including “‘whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.’” Ibid. (quoting United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed.2d 326, 334-35 (1987)). An area within the curtilage to which the public is welcome, such as a walkway leading to an entrance to a home, is not afforded Fourth Amendment protection because the resident has given implicit consent to visitors to approach the home that way. See id. at 209. In other words, when a law enforcement officer walks to a front or back door for the purpose of making contact with a resident and reasonably believes that the door is used by visitors, he is not unconstitutionally trespassing on to the property. Ibid. (declaring that “‘when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go’” the Fourth Amendment is not offended (quoting 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.3(f) (3d ed. 1996))); see also United States v. Garcia, 997 F.2d 1273, 1279-80 (9th Cir. 1993) (observing that “the Fourth Amendment is not implicated when officers go to the back door reasonably believing it is used as a principal entrance to the dwelling”); United States v. Reed, 733 F.2d 492, 501 (8th Cir. 1984) (“[N]o Fourth Amendment search occurs when police officers who enter private property restrict their movements to those areas generally made accessible to visitors.”); United States v. Titemore, 335 F. Supp.2d 502, 505-06 (D. Vt. 2004) (“[T]he law does not require an officer to determine which door most closely approximates the Platonic form of ‘main entrance’ and then, after successfully completing this metaphysical inquiry, approach only that door. An officer making a ‘knock and talk’ visit may approach any part of the building where uninvited visitors could be expected.”), aff’d, 437 F.3d 251 (2d Cir. 2006); United States v. Daoust, 728 F. Supp. 41, 46 (D. Me. 1989) (mem.) (“[P]olice with legitimate business may enter the areas of the curtilage which are impliedly open to use by the public.”), aff’d, 916 F.2d 757 (1st Cir. 1990).
In light of the trial court’s findings, there was no unconstitutional intrusion onto defendant’s property when Detective Peacock and another officer approached the back door. Accordingly, a remand on this issue is unnecessary.
IV.
A.
We next address the Appellate Division’s novel holding that the law enforcement officers in this case had no lawful right to seek consent to search defendant’s home unless they had sufficient information “to generate a reasonable and articulable suspicion that criminal activity was occurring within” the residence. Domicz, supra, 377 N.J. Super. at 551. The panel raised that issue on its own, defendant having failed to raise it at his suppression hearing or before the Appellate Division. Until the panel’s decision, no jurisdiction, including our own, had placed such a restriction on the longstanding and universally acknowledged consent exception to the warrant requirement in the context of a home search. See footnote 7
In establishing a reasonable and articulable suspicion standard as a prerequisite to a consent search of a home, the panel extended our limited holding in State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002), which dealt with the specific problems that had attended motor vehicle stops in this State. We held in Carty that Article I, Paragraph 7 of the New Jersey Constitution requires “law enforcement personnel [to] have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle.” Id. at 635. Our Carty decision addressed concerns about the then intractable problem of racial profiling on our highways, see id. at 644-45 (citing publications detailing racial profiling), and “the widespread abuse of our existing law that allow[ed] law enforcement officers to obtain consent searches of every motor vehicle stopped for even the most minor traffic violation.” Id. at 646.
We specifically limited our holding in Carty “to consent searches pursuant to a stop for a traffic infraction.” Id. at 654. “[I]n light of the September 11, 2001 attack on the World Trade Center and the Pentagon,” we cautioned against “attempts to overextend our holding in [Carty,]” recognizing that “[t]he need to protect public safety today is even more readily apparent than” in earlier times. Id. at 652, 654. We noted that our decision did not affect “roadblocks, checkpoints and the like based on a concern for public safety.” Id. at 652. To accentuate the narrow breadth of the Court’s holding, Justice Stein observed in his concurring opinion that it “ha[d] no application to consent searches in airports, bus terminals, train stations, college dormitories, private homes, or business premises.” Id. at 656 (Stein, J., concurring) (emphasis added).
Nonetheless, the panel in this case untethered itself from the factual and jurisprudential moorings of Carty and declared in a footnote that “it would be incongruous to view Carty as being limited to motor vehicles since intrusion into the privacy of the home is ‘the chief evil’ that the Fourth Amendment and Article I, paragraph 7 were designed to prevent.” Domicz, supra, 377 N.J. Super. at 551 n.17. The panel, however, did not have before it a record indicating statistically or even anecdotally that law enforcement officials were indiscriminately misusing the warrant requirement’s consent search exception to gain entry into homes. See Carty, supra, 170 N.J. at 641, 644-45. As noted, before the trial court and Appellate Division, defendant did not claim that such a problem existed. Nor has defendant, amicus curiae, or our dissenting colleagues brought to our attention any evidence (such as research studies, scholarly articles, or periodicals) of law enforcement abuse of the consent exception as it applies to home searches. Because we find no factual or legal justification for such a profound change in our constitutional jurisprudence, we reject the panel’s extension of our Carty holding to the search of a home. See footnote 8
B.
A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed.2d 854, 858 (1973); Carty, supra, 170 N.J. at 650. Indeed, consent searches are considered a “legitimate aspect of effective police activity.” Schneckloth, supra, 412 U.S. at 228, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863. On the record before us, we do not believe that there are sufficient reasons to alter that longstanding constitutional doctrine. We do not agree with the appellate panel that “it would be incongruous to view Carty as being limited to motor vehicles.” Domicz, supra, 377 N.J. Super. at 551 n.17. First, Carty dealt with a problem peculiar to automobiles and disproportionately affecting minority drivers –- the indiscriminate abuse of consent searches of cars whose operators had been stopped for minor traffic infractions. Carty, supra, 170 N.J. at 644-47. Here, there is no claim by defendant or amicus curiae that there is a problem of misuse of consent searches of homes or that minority residents are disproportionately targeted by such searches.
Second, we perceive that there is a greater degree of compulsion to accede to a consent search when a motorist is stranded on a highway after a motor vehicle stop for a minor traffic infraction and the detaining police officer requests permission to search than when a person is secure in his own home and not under any form of detention and a similar request is made. See Carty, supra, 170 N.J. at 644 (“In the context of motor vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume that the individual feels compelled to consent.”). In Carty, we described the inherently coercive predicament of the driver who is stopped on the highway and faced with the perceived choice of either refusing consent to search and therefore increasing the likelihood of receiving a traffic summons, or giving consent to search in the hope of escaping with only a warning. Id. at 641.
The choices are not so stark for the person who, in the familiar surroundings of his home, can send the police away without fear of immediate repercussions. See Schneckloth, supra, 412 U.S. at 247, 93 S. Ct. at 2058, 36 L. Ed. 2d at 874 (suggesting that consent searches are not “inherently coercive” when they “occur on a person’s own familiar territory”); United States v. Carter, 378 F.3d 584, 589 (6th Cir. 2004) (stating that “a man’s home is his castle,” and that “police may be kept out or invited in as informally as any other guest”), cert. denied, 543 U.S. 1155, 125 S. Ct. 1298, 161 L. Ed.2d 121 (2005); cf. State v. Timmendequas, 161 N.J. 515, 615 (1999) (stating that, because questioning of defendant took place in his home, it “was not inherently intimidating”), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001); State v. P.Z., 152 N.J. 86, 103 (1997) (noting that, during interview of defendant in his home, he had “complete freedom to come and go as he pleased”). In limiting the reach of our holding in Carty, we recognized the distinct disadvantage of the motorist detained at the side of the road and the history of abuse of the consent search in the context of motor vehicle stops. Carty, supra, 170 N.J. at 641, 644, 646.
That is not to say that a person will not feel some degree of compulsion whenever a police officer makes a request. See State v. McCloskey, 90 N.J. 18, 24 (1982); State v. Hickman, 335 N.J. Super. 623, 633 (App. Div. 2000). Surely, during a field inquiry, when a police officer asks a question of a person on the street, although that person is lawfully free to leave, he may feel some compulsion to respond. Nonetheless, we do not mandate that police officers have reasonable suspicion before making an inquiry. See State v. Maryland, 167 N.J. 471, 484 (2001). Under our State Constitution, we have heightened requirements to ensure that the waiver of the right to refuse a consent search is voluntarily and knowingly exercised. In State v. Johnson, we held that under Article I, Paragraph 7, if “the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.” 68 N.J. 349, 353-54 (1975). Indeed, New Jersey is one of a small minority of jurisdictions in the country requiring the State to prove, as a precondition to the validity of a consent search, that a person have knowledge of his right to refuse to give consent. See State v. Brown, 156 S.W.3d 722, 724 (Ark. 2004) (holding that “a home dweller must be advised of his or her right to refuse consent in order to validate a consensual search under the Arkansas Constitution”); State v. Ferrier, 960 P.2d 927, 934 (Wash. 1998) (holding that police “must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search”). Detective Peacock did in this case what police officers routinely do throughout the State –- he advised defendant that he had a right to refuse to give consent to a search of his home.
Mandating that police officers have reasonable and articulable suspicion to believe that criminal activity is afoot in a home before they can make a request to search the residence will not dispel whatever compulsion a person might feel when confronted by authority figures at his door; certainly the same compulsion would be felt by the person if the officers had reasonable suspicion. The reasonable suspicion standard, however, will limit consent searches to a much smaller universe of cases. In the dangerous times in which we live, we have not been presented with any compelling reason –- such as the record of abuse presented in Carty -- to restrict law enforcement officers in a way that no other jurisdiction has done to date.
As articulated in our case law, to determine whether a person’s consent was voluntarily given or coerced, the proper analytical framework is whether a person has knowingly waived his right to refuse to consent to the search. See Johnson, supra, 68 N.J. at 353-54 (establishing standard of voluntariness of consent under Article I, Paragraph 7, as knowing and intelligent waiver, which includes knowledge of right to refuse consent); State v. King, 44 N.J. 346, 352-53 (1965) (setting forth various non-exhaustive factors supporting either voluntary or coerced nature of consent). Free choice remains an indispensable tenet of our law –- for example, the choice to submit to interrogation or to consent to a search. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed.2d 694, 707 (1966); Johnson, supra, 68 N.J. at 355 (Schreiber, J., concurring) (“Consent contemplates the exercise of a choice” and free choice is “effectively safeguarded if the occupant of the premises knows that the search may be refused.”); see also King, supra, 44 N.J. at 353 (noting that “many decisions have sustained a finding that consent was voluntarily given even though the consent was obtained under the authority of the badge or after the accused had been arrested”). The Constitution protects against unreasonable searches and seizures and against coerced waivers of constitutional rights. It does not disallow voluntary cooperation with the police.
Our dissenting colleagues claim that a “knock and talk” encounter between police and a citizen at his or her home is “coercive,” post at __ (slip op. at 8), despite the Johnson warnings. That position undermines the very essence of Johnson, which is predicated on the principle that informed and voluntary consent is not coerced consent. Moreover, our dissenting colleagues have failed to explain how, under their construct, a “knock and talk” encounter is any less “coercive” if based on reasonable and articulable suspicion. The dissent apparently would allow for the search of defendant’s home, despite a coerced consent to search, provided there is reasonable and articulable suspicion for the search.
In this case, after presiding over the suppression hearing, the trial court determined that the State had proven by clear and convincing evidence that defendant knowingly and voluntarily gave consent to the police to search his home. The positions of the parties were hotly contested and the accounts given by Detective Peacock and defendant were so different and discordant that only one could be telling the truth. The trial court had the “‘feel’ of the case,” the opportunity to make observations of the witnesses denied to an appellate court. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Ultimately, the court found Detective Peacock credible. Defendant does not challenge the sufficiency of the evidence to support that conclusion on the present record. See Johnson, supra, 42 N.J. at 162 (stating that aim of appellate review is “to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record”).
For the reasons discussed, we decline to extend Carty to require that the police have a reasonable and articulable suspicion of criminal activity in a home to justify requesting consent to conduct a search of the premises.
V.
At the suppression hearing, to bolster his credibility, defendant attempted to introduce testimony about the results of an unstipulated private polygraph test he took in his lawyer’s office eighteen months after the search of his home. See footnote 9 Defendant called to the stand Alan Hart, Ph.D., a polygraph examiner, who conducted the polygraph examination and who, according to his report, was prepared to testify that defendant “demonstrated no reactions indicative of deception” when responding to three questions concerning the events surrounding the search of his home. In response to one such question, defendant denied that “any police officer [told him] that [he] could refuse [the] search.” See footnote 10 The State received Dr. Hart’s report four days before the suppression hearing.
The trial court declared Dr. Hart’s testimony irrelevant and barred him from testifying, presumably based on this Court’s decision in State v. McDavitt, 62 N.J. 36, 46 (1972), in which we held that the results of a polygraph examination are admissible only “in a criminal case when the State and defendant enter into a stipulation to have defendant submit to a polygraph test.” The court asserted that determining credibility was the motion judge’s function.
The Appellate Division concluded that the trial court erred by completely excluding the polygraph evidence at the suppression hearing. Domicz, supra, 377 N.J. Super. at 556. The panel distinguished the jury trial case in McDavitt, which restricted the admissibility of polygraph examinations to criminal cases involving stipulations between the State and the defendant, from the suppression hearing in this case, in which defendant intended to introduce his unstipulated polygraph examination to a judge. Id. at 559. The panel held that “in a non-jury setting the admission of [polygraph] evidence, when a proper foundation has been laid, is not limited by McDavitt’s stipulation requirement.” Id. at 558. The panel maintained that “[t]he judge may give that testimony such weight as it warrants, but the extent to which the judge values that evidence should not determine its admissibility.” Id. at 560. The panel, however, conceded that “the State would be entitled to offer the same type of evidence” and that its ruling could “turn some suppression hearings, where credibility is a central issue, into battles between polygraphers.” Id. at 560 n.19.
Defendant and the State dispute the reliability and therefore the relevance of the results of an unstipulated polygraph examination sought to be introduced at a suppression hearing. Defendant essentially argues that if the results of a stipulated examination are sufficiently reliable for a jury’s consideration, results from an unstipulated examination surely must be reliable enough for a judge’s consideration at a motion hearing. The State stresses that McDavitt was a singular exception to the general rule that polygraph evidence is inadmissible, emphasizing that with a stipulated polygraph examination it is “the stipulation between the State and defendant” that confers “probative value” on the polygraph evidence.
First, it must be mentioned that defendant did not seek to present to the trial court evidence that the overall reliability of polygraph examinations has achieved significantly greater acceptance in the scientific and legal community since our decision in McDavitt. The Court acknowledged in McDavitt the general rule that “lie detector testing has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception.” 62 N.J. at 44. In that case, the Court carved out a narrow exception to that rule, holding that “[p]olygraph testing has sufficient probative value to warrant admissibility” only when both the State and the defendant agree to be bound by the results. Id. at 46. Thus, limited to a criminal case involving a stipulation between the parties, the Court concluded that “polygraph testing has been developed to such a point of reliability” to allow the admissibility of the results. Ibid.
It is instructive to note that the “circumstance under which the stipulation came into existence [in McDavitt]” was “a consideration” for the Court in deciding that case. Id. at 45. In a criminal jury trial, the defendant in McDavitt, over the prosecutor’s objection, testified that he offered to submit to a polygraph examination after his burglary arrest. Id. at 41. That testimony, this Court noted, should not have been permitted. Id. at 43. But the door was opened. On cross-examination, in response to a question by the prosecutor, the defendant stated he would be willing to take a polygraph test that day. Id. at 41. Eventually, the defendant and the State entered into a court-approved stipulation, agreeing to the admissibility of the results of a polygraph test. Id. at 41-42. Unfortunately for the defendant, the examiner found him to be untruthful. Id. at 42-43. From those unusual facts was born the McDavitt exception.
There is a lack of scientific consensus concerning the reliability of polygraph evidence, which in turn is reflected in the disagreement among state and federal courts concerning the admissibility of such evidence. United States v. Scheffer, 523 U.S. 303, 309-12, 118 S. Ct. 1261, 1265-66, 140 L. Ed.2d 413, 419-21 (1998). In criminal cases, either in a jury or non-jury setting, the vast majority of states either ban polygraph evidence altogether or do not admit such evidence absent a stipulation between the State and the defendant. See Am. Polygraph Ass’n, Polygraph: Quick Reference Guide to the Law iii (17th ed. 2002) (noting that eighteen states require stipulation as precondition of admission and that thirty-one states either ban polygraph evidence per se or have not yet addressed issue), available at http://www.polygraph.org/intro.htm. To our knowledge, New Mexico is the only state in which polygraph evidence is admissible without significant restriction in criminal trials, even absent a stipulation between the parties. See Lee v. Martinez, 96 P.3d 291, 303 (N.M. 2004); Scheffer, supra, 523 U.S. at 311-12, 118 S. Ct. at 1266, 140 L. Ed. 2d at 420 (citing N.M. Rule Evid. § 11-707). See footnote 11 Today, both “state and federal courts continue to express doubt about whether [polygraph] evidence is reliable.” Scheffer, supra, 523 U.S. at 312, 118 S. Ct. at 1266, 140 L. Ed. 2d at 420; see also United States v. Catalan Roman, 368 F. Supp. 2d 119, 123 (D.P.R. 2005); United States v. Canter, 338 F. Supp.2d 460, 463-64 (S.D.N.Y. 2004); see generally Am. Polygraph Ass’n, supra. In the more than thirty years since McDavitt, serious questions about the reliability of polygraph evidence remain.
We realize that some may question the very premise of McDavitt, that polygraph test evidence can be reliable in some circumstances and for some purposes but not others. This is not the occasion to revisit McDavitt’s narrow holding. On the record before us, we are not prepared to extend McDavitt to unstipulated polygraph examinations, even in a suppression hearing presided over by a judge. We are confident that our judges are capable of making credibility decisions in the traditional way, by assessing the logic and sense of the testimony and the manner in which the witness testifies. See Locurto, supra, 157 N.J. at 474. That approach is not fool proof, for whenever human judgment comes into play there is the potential for error, but we are not convinced that polygraph evidence is likely to lead to more correct outcomes.
We also do not believe that the paradigm proposed by the Appellate Division is workable, even in a non-jury setting. If a defendant sought to introduce the results of a private polygraph examination, then the State would have to be given the opportunity to conduct its own polygraph test of the defendant. Cf. State v. Whitlow, 45 N.J. 3, 24-25 (1965) (stating that when defendant presents insanity defense through psychiatric testimony he is subject to examination by State’s psychiatrists); State v. Myers, 239 N.J. Super. 158, 169-70 (App. Div. 1990) (stating that State is entitled to examine defendant who raises defense of insanity or diminished capacity as response “to the anticipated testimony of defendant’s experts on the same subject”), certif. denied, 127 N.J. 323 (1990). Moreover, the Appellate Division admitted that under its approach the State would be permitted to give its witness a polygraph test, and then presumably the defendant would want his polygraph expert to examine that witness. And if the outcome of the case hinged on the credibility of other witnesses, more polygraph examinations likely would follow, leading to the absurd situation of the judge determining the credibility of the experts who are opining about the truthfulness of the witnesses. We will not sanction a war of the experts in an area in which there is so much uncertainty concerning the reliability of the testing procedure itself and which distracts the judge from fulfilling his essential function of assessing directly the credibility of the witnesses.
VI.
For the reasons given, we reverse the decision of the Appellate Division and reinstate the judgment of conviction.
JUSTICES LaVECCHIA, ZAZZALI and RIVERA-SOTO join in JUSTICE ALBIN’s opinion. JUSTICE WALLACE filed a separate opinion concurring in part and dissenting in part in which CHIEF JUSTICE PORITZ and JUSTICE LONG join.
SUPREME COURT OF NEW JERSEY
A- 42 September Term 2005
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KEITH R. DOMICZ,
Defendant-Respondent.
Justice Wallace, Jr., concurring and dissenting.
In my view, the Court is not required to address the difficult issue of whether the reasonable and articulable suspicion standard is a prerequisite to a consent search of a home. Defendant did not raise that issue at his suppression hearing or before the Appellate Division. We have frequently “expressed our reluctance to decide issues that were not addressed in the trial court or the Appellate Division.” Gac v. Gac, 186 N.J. 535, 547 (2006). Moreover, “[w]e have applied that principle even when a constitutional issue is presented.” Ibid. Although the majority opinion recognizes that the issue of the standard for a consent search of a home was not raised below, it nevertheless decides the issue. Because I disagree with the majority’s disposition, I dissent from the conclusion that police are not required to have a reasonable and articulable suspicion of criminal activity in a home before seeking a consent search.
Similar to the Fourth Amendment to the United States Constitution, the New Jersey Constitution prohibits unreasonable searches and seizures. N.J. Const. art. I, ¶ 7. “A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement.” State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The State has the burden of establishing that a warrantless search falls within one of the recognized exceptions. Ibid. In the present case the State urges that the warrantless search of defendant’s home was valid under the consent-search exception. See Schneckloth v. Bustamonte, 412 U.S. 218, 280, 93 S. Ct. 2041, 2075, 36 L. Ed.2d 854, 893 (1973).
We have interpreted Article I, paragraph 7 of the State Constitution to provide enhanced protections beyond that of the Fourth Amendment. See, e.g., State v. Eckel, 185 N.J. 523, 538, 524 (2006) (holding New Jersey Constitution prohibits search of auto incident to arrest where occupant removed from vehicle and secured elsewhere); State v. McAllister, 184 N.J. 17, 33 (2005) (finding legitimate expectation of privacy in bank records under State Constitution in contrast to Federal Constitution); State v. Pierce, 136 N.J. 184, 215 (1994) (invalidating warrantless vehicular search based on arrest for motor vehicle offense); State v. Tucker, 136 N.J. 158, 166-70 (1994) (holding that in contrast with Fourth Amendment, New Jersey Constitution prohibits police from stopping defendant solely because of flight upon seeing police); State v. Hempele, 120 N.J. 182, 195-215 (1990) (holding warrantless searches of garbage bags left on curb for collection invalid under State Constitution); State v. Novembrino, 105 N.J. 95, 145-58 (1987) (rejecting under State Constitution federal “good faith” exception to exclusionary rule for search warrants issued in good faith but without probable cause); State v. Hunt, 91 N.J. 338, 350 (1982) (holding State Constitution affords protectable interest in telephone toll billing records); Alston, supra, at 224-30 (recognizing possessory interest in property sufficient to confer standing under State Constitution to challenge validity of vehicle search); State v. Johnson, 68 N.J. 349, 353-54 (1975) (holding under State Constitution the validity of consent search requires knowledge of right to refuse consent).
Specifically, our consent-search jurisprudence requires the police to inform the person from whom consent is sought of the right to refuse consent. That requirement is not provided under the Federal Constitution. In Schneckloth, supra, the United States Supreme Court held that a consent to search need only be voluntary and whether the defendant knew of the right to refuse consent is only one of the factors to be considered in evaluating the totality of circumstances to determine whether the consent was voluntary. 412 U.S. at 227, 93 S. Ct. at 2047-48, 36 L. Ed. 2d at 862-63. In Johnson, supra, we added to those requirements and held that the validity of a consent to search requires proof that the defendant had “knowledge of the right to refuse consent.” 68 N.J. at 354. We recognized that “[m]any persons, perhaps most, would view the request of a police officer to make a search as having the force of law.” Ibid. As a result, we concluded that “[u]nless it is shown by the State that the person involved knew that he had the right to refuse to accede to such a request [for a consent search], his assenting to the search is not meaningful.” Ibid.
At least one other jurisdiction has followed Johnson and expanded upon the protective procedures for a valid consent to search a home. In State v. Ferrer, 960 P.2d 927, 928 (Wash. 1998), the Supreme Court of Washington addressed a fact pattern analogous to the present case. There the police received information that the defendant was growing marijuana in her home and planned to conduct a “knock and talk.” See footnote 12 Ibid. One of three officers who testified at the suppression hearing indicated that almost everyone subject to a “knock and talk” lets the police into their homes. Ibid. Four officers went to the defendant’s home, two in the front and two in the back to secure the premises. Ibid. After the defendant opened the front door and invited the two officers inside, the two remaining officers were let inside the home. Ibid. The police explained that they had information the defendant was growing marijuana and asked for consent to search the home. Id. at 929. They read the consent form to the defendant, who signed it. Ibid. The search of the home revealed numerous marijuana plants. Ibid. Subsequently, the defendant moved to suppress the evidence. Ibid. In invalidating the search, the court declared that “any knock and talk is inherently coercive to some degree,” id. at 933, and “the home receives heightened constitutional protection,” id. at 934 (quoting State v. Young, 867 P.2d 593, 599 (1994)). As a result, the court held that
when police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.
[Ibid. (emphasis added).]
Recently, in the context of a motor vehicle stop, we expanded the requirements for a consent search. In State v. Carty, 170 N.J. 632, 647, modified on other grounds, 174 N.J. 351 (2002), we affirmed the judgment of the Appellate Division “that consent searches following a lawful stop of a motor vehicle should not be deemed valid under Johnson unless there is reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity.” In explaining the need for a modification of the Johnson standard, we emphasized that our review of scholarly articles, cases from other jurisdictions, and the empirical data available, demonstrated
that despite use of the first-tell-then-ask rule or the voluntary and knowing standard adopted in Johnson, consent searches following valid motor vehicle stops are either not voluntary because people feel compelled to consent for various reasons, or are not reasonable because of the detention associated with obtaining and executing the consent search.
[Id. at 646.]
In the present case, the Appellate Division concluded that the standard we applied to motor vehicles in Carty must apply to the home. State v. Domicz, 377 N.J. Super. 515, 551 n.17 (2005). The panel reasoned that “it would be incongruous to view Carty as being limited to motor vehicles since intrusion into the privacy of the home is ‘the chief evil’ that the Fourth Amendment and Article I, paragraph 7 were designed to prevent.” Ibid. I agree.
We provide greater protections against unreasonable searches and seizures of the home than for other encounters. As expressed by one court, “‘[a]n individual’s privacy interests are nowhere more clearly defined or rigorously protected by the courts than in the home[,] the core of fourth amendment rights.’” Kornegay v. Cottingham, 120 F.3d 392, 397-400 (3d Cir. 1997) (quoting Wanger v. Bonner, 621 F.2d 675, 681 (5th Cir. 1980)). We have emphasized that “[t]here is a lesser expectation of privacy in one’s automobile and in one’s office, than in one’s home.” State v. Johnson, 168 N.J. 608, 625 (2001) (citations omitted); see also State v. Stott, 171 N.J. 343, 355 (2002) (noting that “hospital room is more akin to one’s home than to one’s car or office” in invalidating warrantless search of hospital room). It naturally follows that whatever protections pertain to an automobile search, at a minimum, they must apply to a home.
In refusing to apply the reasonable and articulable suspicion standard to the consent search of the home, the majority overlooks the express limitation of the holding in Carty that was directed to the motor vehicle context. Justice Coleman explained that
[t]o avoid confusion in attempts to overextend our holding in this case in light of the September 11, 2001 attack on the World Trade Center and the Pentagon, we wish to make clear the limitations of this opinion. This decision does not affect the principles enunciated in various state and federal cases that allow roadblocks, checkpoints and the like based on a concern for the public safety.
[Carty, supra, 170 N.J. at 652.]
In short, Carty did not place a restriction on the application of its holding to the private home but rather expressed the Court’s concern that it not be extended to “roadblocks, checkpoints and the like.”
Further, I disagree with the majority’s conclusion that police presence at a home is not coercive. On the contrary, I believe a “knock and talk,” like the one at issue involving numerous officers attempting to enter the home at both means of egress, suffers from at least the same infirmities identified in Carty. See Adrian J. Barrio, Note, Rethinking Schneckloth v. Bustamonte: Incorporating Obedience Theory into the Supreme Court’s Conception of Voluntary Consent, 1 997 U. Ill. L. Rev. 215, 218 (“consent searches contain inherently compelling pressures that threaten the exercise of valuable privacy right.”). Until today, the application of our consent search jurisprudence, including the clear logical extension of our holding in Carty, would require that we extend to the house the reasonable and articulable suspicion standard that we apply to consent searches of automobiles. See also State v. Rodriguez, 172 N.J. 117, 132 (2002) (ordering suppression of evidence seized in consent search not supported by reasonable and articulable suspicion because “illegal detention voids the consent”).
I would also follow the approach of the Supreme Court of Washington and rule that in the future, when the police have reasonable and articulable suspicion to request a consent search, that before they enter the premises, they must make the request for the search and explain the right to refuse and to stop the search at any time. See Ferrer, supra, 960 P.2d at 934.
I would affirm that part of the Appellate Division judgment remanding the case to the Law Division for a hearing to determine whether the police had reasonable and articulable suspicion of criminal activity to request a valid consent search. In all other respects, I concur in the opinion of the Court.
CHIEF JUSTICE PORITZ and JUSTICE LONG join in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-42 SEPTEMBER TERM 2005
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KEITH R. DOMICZ,
Defendant-Respondent.
DECIDED September 20, 2006
Chief Justice Poritz PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY Justice Wallace
DISSENTING OPINION BY
CHECKLIST REVERSE AND REINSTATE CONCUR IN PART/DISSENT IN PART CHIEF JUSTICE PORITZ X JUSTICE LONG X JUSTICE LaVECCHIA X JUSTICE ZAZZALI X JUSTICE ALBIN X JUSTICE WALLACE X JUSTICE RIVERA-SOTO X TOTALS 4 3
Footnote: 1 This statement of facts is based solely on the evidence presented at the suppression hearing.
Footnote: 2 Although the suppression hearing transcript only refers to the issuance of a subpoena, the State represented to the Court at oral argument that the subpoena was issued by the grand jury.
Footnote: 3 “Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. . . . [I]t operates somewhat like a video camera showing heat images.” Kyllo v. United States, 533 U.S. 27, 29-30, 121 S. Ct. 2038, 2041, 150 L. Ed.2d 94, 99 (2001). By conducting a thermal scan of defendant’s home, police could determine whether an unusual amount of heat was coming from the building, which might indicate the use of specialized growth equipment, such as grow lamps.
Footnote: 4 The thermal scan of defendant’s house was conducted prior to the United States Supreme Court’s decision in Kyllo v. United States, supra. In that case, decided June 11, 2001, the Court held that use of a thermal imaging device by police to detect the amount of heat emanating from a person’s home constituted a search for Fourth Amendment purposes, and thus was unconstitutional absent a warrant supported by probable cause. 533 U.S. at 40, 121 S. Ct. at 2046, 150 L. Ed. 2d at 106.
Footnote: 5 We note that the Appellate Division misread Maxfield, a case comprised of three separate opinions. The panel asserted that Maxfield was “the only case we are aware of that has found a reasonable expectation of privacy in [utility] records.” See Domicz, supra, 377 N.J. Super. at 540. In fact, five of nine justices concluded “that there is no constitutionally protected privacy right in electrical consumption records” under the Washington State Constitution. See Maxfield, supra, 945 P.2d at 202 (Madsen, J., concurring); id. at 205-07 (Guy, J., dissenting); see also State v. McKinney, 60 P.3d 46, 50 (Wash. 2002) (“A majority of the justices in Maxfield held there is no protected privacy interest in power records.”).
Footnote: 6 It bears mentioning that based on our review of the record, no information of value was learned by law enforcement by reference to those records. The State conceded that even with the thermal scan and the utility records it did not have probable cause to secure a warrant to search defendant’s home.
Footnote: 7 Because defendant did not raise the issue below, our dissenting colleagues chide us for addressing it, even though the issue is one of the pillars of a published Appellate Division opinion. See post at __ (slip op. at 1). We cannot, however, allow to remain standing an erroneous conclusion of law with such far-reaching effects.
Footnote: 8 Based on the facts and the carefully limited holding of Carty, we do not see how the dissent can conclude that requiring reasonable and articulable suspicion for consent searches of homes is a “clear logical extension of our holding in Carty.” Post at __ (slip op. at 8).
Footnote: 9 By measuring “respiration, pulse rate and blood pressure, and galvanic skin response,” polygraph examinations are used to determine whether a person is telling the truth as that person is asked and answers questions. 31 Leonard N. Arnold, New Jersey Practice Series: Criminal Practice and Procedure § 1.41, at 59 (2005).
Footnote: 10 Defendant also showed “no reactions indicative of deception” when answering the following questions affirmatively: “Did the police announce ‘State police – we have a search warrant’ when they came to your door on July 27, 2000?” and “When you signed that paper on July 27, 2000, did you believe the police had a search warrant?” The results of the examination were inconclusive with regard to the question: “Did you invite the police into your house in Williamstown on July 27, 2000?”
Footnote: 11 See also State v. Barbara, 255 N.W.2d 171, 173 (Mich. 1977) (permitting, at judge’s discretion, admission of polygraph evidence on post-conviction motions for new trial); State v. McHoney, 544 S.E.2d 30, 35 (S.C. 2001) (declaring that polygraph evidence is subject to general rules of evidence but is “generally inadmissible”).
Footnote: 12 A “knock and talk” occurs when the police knock on the door, make contact with the resident, ask if they may enter to talk about their concern, and once inside, ask permission to search the premises.
Argued March 21, 2006 -- Decided September 20, 2006
ALBIN, J., writing for a majority of the Court.
After a search of his home resulted in the seizure of marijuana and growing equipment, defendant Keith R. Domicz was indicted on charges of operating a controlled dangerous substance (CDS) production facility, possession with intent to distribute a CDS (marijuana), and possession of CDS (marijuana and methamphetamine).
Six months before defendant’s home was searched, Detective William Peacock of the New Jersey State Police Marijuana Eradication Unit learned that defendant had received specialized horticultural equipment commonly used to grow marijuana. Pursuant to a grand jury subpoena, the police obtained electrical use records of defendant’s residence. Those records did not provide any useful investigative information. Two months later, without a warrant, Detective Peacock conducted a thermal scan of defendant’s home to determine whether there was an unusual amount of heat, which might indicate the use of specialized marijuana growth equipment. The thermal scan also did not provide any leads.
At the suppression hearing, the State and defendant presented conflicting accounts of what occurred on the day of the search. According to the State, five detectives dressed in plain clothes went to defendant’s home. Three detectives went to the front door. Along with another officer, Detective Peacock went to the back door, which he believed was used as an entrance because of the location of the cars in the driveway. When defendant answered the front door, those two detectives joined the others at the front of the house. One detective identified himself and told defendant, “We need to speak to you.” Defendant replied, “Come on in, get out of the rain.” When they entered, Detective Peacock noticed a strong odor of raw marijuana. He introduced himself as a member of the State Police Marijuana Eradication Unit and said, “We’re here to request permission to search your residence.” He presented a consent-to-search form, which he read and explained to defendant. At one point, defendant put his head down and said, “I have 40 plants in the basement.” Detective Peacock responded, “We’ll get to that in a minute,” and finished reading the consent form, while defendant listened and looked at the form. Detective Peacock advised defendant that the right to refuse to give consent to the search. The other officers did not surround or intimidate defendant. Defendant authorized the search by signing the form under a statement that read: “I have knowingly and voluntarily given my consent” and “fully understand that I have the right to refuse giving my consent to search.” The detectives then searched the house and found nearly 100 plants in the basement and growing next to the garage, an apparatus for cultivating marijuana plants, bags of processed marijuana, a digital scale, and a bag of methamphetamine.
Defendant’s version of the events was very different. He testified that three detectives came to his front door, where the “head guy” showed a badge and said he had a search warrant. Without permission, they came into the house and let the two other officers in the back door. Defendant was handcuffed, told to sit on a couch, and read his rights. An hour later, the detectives gave defendant a form to sign, but they did not read it or explain it to him.
At the hearing, the trial court did not allow testimony from a polygraph examiner who would have testified for the defense about the results of a polygraph examination taken by defendant. The trial court denied defendant’s motion to suppress the evidence seized from his home. The court accepted Detective Peacock’s testimony and rejected defendant’s testimony as unbelievable, and determined that the State had proven by clear and convincing evidence that defendant knowingly and voluntarily consented to the search. Defendant pled guilty to operating a CDS production facility. He was sentenced to 10 years in prison with a 40-month period of parole ineligibility. The remaining charges were dropped.
The Appellate Division, in an opinion published at 377 N.J. Super. 515 (2005), reversed the suppression order, vacated defendant’s conviction, and remanded for a new suppression hearing. The panel found that the warrantless thermal scan of defendant’s home and warrantless seizure of his utility records were unconstitutional, may have “tainted” defendant’s consent, and could cast doubt upon the credibility of Detective’s Peacock’s version of events. Although not previously raised by defendant, the panel also held that police officers must have a reasonable and articulable suspicion that criminal activity is occurring inside a residence before requesting consent to search the home. Finally, the panel would have allowed testimony about the polygraph test.
The Supreme Court granted certification. 185 N.J. 268 (2005). The Court also granted the motion of the Criminal Defense Lawyers of New Jersey to participate as amicus curiae.
HELD: Under the circumstances, the warrantless thermal scan and seizure of electricity records did not constitute prior unlawful conduct that could have tainted the later search. Grand jury subpoena procedures adequately protect any privacy interest in utility records. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence.
1. The record does not support a conclusion that the detectives engaged in prior unlawful conduct that tainted the consent search. At the time Detective Peacock conducted the thermal scan, a majority of federal courts had ruled that a thermal scan was not a “search” requiring a warrant under the Fourth Amendment. The detective’s failure to predict that one year later the United State Supreme Court would reach the opposite conclusion cannot be considered part of a pattern of illegality or used to impair his credibility. (pp. 12-15)
2. A grand jury subpoena is sufficient to satisfy whatever privacy interest defendant had in his electricity records under Article I, Paragraph 7 of the State Constitution. The Court previously held that grand jury subpoena procedures sufficiently protect citizens’ reasonable expectation of privacy in bank records. There is no persuasive reason why utility records should be given more protection than bank records, which expose more about a person’s private life. (pp. 15-20)
3. The area around a home to which the public is welcome, such as a walkway leading to an entrance, is not given Fourth Amendment protection because the resident has given implied consent to visitors to approach the home that way. When a law enforcement officer walks to a back door of a home to make contact with a resident and, as the trial court found in this case, reasonably believes that the door is used by visitors, there is no unconstitutional trespass. (pp. 21-23)
4. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence. The Court does not extend its decision in State v. Carty, 170 N.J. 632 (2002), which requires a reasonable and articulable suspicion of criminal wrongdoing before seeking consent to search a lawfully stopped motor vehicle, to the search of a home. Carty addressed concerns about racial profiling on New Jersey highways and widespread abuse of consent searches of vehicles stopped for minor traffic violations. There is no claim here that there is an abuse of consent searches of homes or that minority residents are disproportionately targeted by such searches. Also, a person in his home is under less compulsion to consent to a search than a motorist on the highway after a motor vehicle stop. (pp. 24-33)
5. The trial court correctly rejected defendant’s attempt to introduce testimony about the results of an unstipulated private polygraph test he took in his lawyer’s office eighteen months after the search of his home. The Court declines to extend its decision in State v. McDavitt, 62 N.J. 36 (1972) (holding that results of polygraph examination are admissible only “in a criminal case when the State and defendant enter into a stipulation to have defendant submit to a polygraph test”) to unstipulated polygraph examinations, even in a suppression hearing presided over by a judge. Judges are capable of making credibility decisions in the traditional way, by assessing the testimony and demeanor of the witness. (pp. 33-40)
The judgment of the Appellate Division is REVERSED and the judgment of conviction is REINSTATED.
JUSTICE WALLACE, JR., joined by CHIEF JUSTICE PORITZ and JUSTICE LONG, has filed a separate opinion CONCURRING in part and DISSENTING in part. In his view, the Court was not required to address the issue of whether the reasonable and articulable suspicion standard is a prerequisite to a consent search of a home, as defendant did not raise the issue at his suppression hearing or before the Appellate Division. The majority having decided the issue, Justice Wallace is of the view that the reasonable and articulate suspicion standard applies to a consent search of a home.
JUSTICES LaVECCHIA, ZAZZALI, and RIVERA-SOTO join in JUSTICE ALBIN’s opinion. JUSTICE WALLACE filed a separate opinion concurring in part and dissenting in part, in which CHIEF JUSTICE PORITZ and JUSTICE LONG join.
SUPREME COURT OF NEW JERSEY
A- 42 September Term 2005
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KEITH R. DOMICZ,
Defendant-Respondent.
Argued March 21, 2006 – Decided September 20, 2006
On certification to the Superior Court, Appellate Division, whose opinion is reported at 377 N.J. Super. 515 (2005).
Paul H. Heinzel and Leslie-Ann M. Justus, Deputy Attorneys General, argued the cause for appellant (Zulima V. Farber, Attorney General of New Jersey, attorney; Mr. Heinzel, Ms. Justus, Deborah C. Bartolomey, Daniel I. Bornstein and Russell J. Curley, Deputy Attorneys General, on the briefs).
Alison S. Perrone, Designated Counsel, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).
William H. Buckman and Justin T. Loughry submitted a brief on behalf of amicus curiae, Association of Criminal Defense Lawyers of New Jersey.
JUSTICE ALBIN delivered the opinion of the Court.
This case involves defendant Keith R. Domicz’s challenge to the constitutionality of a police search of his home that resulted in the seizure of nearly one hundred marijuana plants and assorted growing equipment. After a testimonial hearing, the trial court denied defendant’s motion to suppress the evidence seized from his home, determining that defendant knowingly and voluntarily consented to the search. In overturning that ruling and ordering a new suppression hearing, the Appellate Division reached a number of novel legal conclusions that are not supported by our established constitutional jurisprudence and case law. Therefore, we now reverse.
I.
A.
A state grand jury returned an indictment charging defendant with first-degree maintaining or operating a controlled dangerous substance (CDS) production facility, in violation of N.J.S.A. 2C:35-4; first-degree possession with intent to distribute a CDS (marijuana), in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(a); fourth-degree possession of a CDS (marijuana), in violation of N.J.S.A. 2C:35-10(a)(3); and third-degree possession of a CDS (methamphetamine), in violation of N.J.S.A. 2C:35-10(a)(1).
At a suppression hearing, the State and defendant presented conflicting accounts of what occurred at defendant’s home on July 27, 2000. See footnote 1 Detective William Peacock of the New Jersey State Police Marijuana Eradication Unit testified that defendant first attracted his attention six months earlier when he learned that defendant had received at his home in the Williamstown section of Monroe Township, Gloucester County, four packages of specialized horticultural equipment “commonly used to grow marijuana.” That the equipment also had legitimate uses did not dampen the detective’s interest. As part of the detective’s investigation, a grand jury subpoena See footnote 2 was issued for the electrical use records of defendant’s residence and two “comparable houses.” With those records, the State Police supposedly could compare defendant’s electrical usage in his home with similarly situated consumers. Those records, it appears, did not provide any useful information linking defendant’s electricity consumption with the suspected harvesting of marijuana in his home.
About two months before the search, Detective Peacock conducted a thermal scan of defendant’s home to determine whether an abnormal amount of heat was emanating from it. See footnote 3 Detective Peacock did not seek authorization for the thermal scan by means of a search warrant because he did not think that a warrant was necessary. See footnote 4 The thermal scan, as well as Detective Peacock’s frequent drives by defendant’s home on his commute to work, did not provide any investigative leads.
On the rainy morning of July 27, 2000, accompanied by two State Police detectives, a Monroe Township Police detective, and a Gloucester County Prosecutor’s Office detective, Detective Peacock went to defendant’s home for a “knock and talk.” The goal was to speak with defendant and, if possible, gain his consent to search his home. Detective Peacock admitted that he did not have probable cause to secure a search warrant.
The officers were all dressed in plain clothes. Three proceeded to defendant’s front door while Detective Peacock and State Police Detective Dennis Donovan approached the back door by passing through a gate that separated the driveway from the rear of the residence. Because of the location of cars in defendant’s driveway, it appeared to Detective Peacock that the back door was used as an entrance to the home. Immediately after Detective Peacock knocked on the door, State Police Detective Sergeant Joe DiBiase advised him that defendant was at the front door. Detectives Peacock and Donovan then joined the other officers at the front of the house. In a calm and professional tone, with the other officers standing behind him, Detective Sergeant DiBiase identified himself to defendant and told him, “We need to speak to you.” Defendant invited the officers inside, saying, “Come on in, get out of the rain.”
As soon as Detective Peacock entered the house, he “detected a strong odor of raw marijuana.” Detective Peacock introduced himself as a member of the State Police Marijuana Eradication Unit and said, “We’re here to request permission to search your residence.” They were standing in a small room, about eight or ten feet square, adjacent to the kitchen, where defendant’s girlfriend was located. Detective Peacock then presented to defendant a consent-to-search form and began reading and explaining the form to him. At that point, defendant put his head down and said, “I have 40 plants in the basement.” Detective Peacock responded, “We’ll get to that in a minute,” and continued reading the consent form in its entirety to defendant, who was listening attentively and looking at the form. Among other things, Detective Peacock advised defendant that he had the right to refuse to give consent to the search. At no point did the other detectives surround, hover over, or intimidate defendant. After the form was read to him, defendant authorized the search by signing the form beneath the following acknowledgement: “I have knowingly and voluntarily given my consent to the search . . . and fully understand that I have the right to refuse giving my consent to search.”
The detectives then searched the house. At the foot of the basement stairs, they found thirty-nine marijuana plants stashed in garbage bags. In a makeshift plywood room in the basement, they found forty-four actively growing marijuana plants, as well as apparatus for cultivating marijuana plants. They also found nine clear plastic bags containing processed marijuana in the kitchen freezer; three bags of marijuana, a digital scale, and a bag of methamphetamine in the master bedroom; and a bag of marijuana in another bedroom. In addition, Detective Peacock and two of the officers observed in plain view another fourteen marijuana plants growing next to the garage.
Defendant offered a starkly different version of the events surrounding the search. Defendant testified that at around 7:00 or 8:00 a.m. on July 27, 2000, three detectives arrived at his front door. The “head guy” showed him a badge and stated that he had a search warrant, and then, without asking permission, the three detectives entered his house. The detectives then opened the back door, letting in two other officers. Defendant was handcuffed, told to sit on a couch where his girlfriend was also seated, and read his rights. Approximately one hour later, the detectives presented a document to defendant without reading or explaining it to him. Defendant signed the folded document as he was told to do. He denied that he ever read the document or was ever advised of his right to refuse to consent to the search. He also suggested that the detectives concealed the contents of the document by folding it in half before he signed it.
Retired State Police Lieutenant Vincent Bellaran testified for the defense. He stated that the detectives involved in the case did not use the most recently issued consent form, which apparently had been adapted to deal with motor vehicle stops. Last, the trial court did not allow defense witness Alan Hart, a polygraph examiner, to testify about the results of a polygraph examination taken by defendant.
In denying defendant’s motion to suppress, the trial court determined that the State had carried its burden of proving by clear and convincing evidence that defendant voluntarily and knowingly consented to the search of his house and garage. The court made specific credibility findings, accepting Detective Peacock’s testimony and rejecting defendant’s testimony as unbelievable. The court did not credit defendant’s argument that the detectives tricked and coerced him into signing the consent form or that they had folded it in half to conceal its true nature. The court accepted as truthful Detective Peacock’s assertion that he smelled the odor of raw marijuana upon entering defendant’s house. The court also weighed favorably Detective Peacock’s candid admission that he did not have probable cause to conduct a search at the time he proceeded with the “knock and talk” with defendant. The court found Lieutenant Bellaran’s testimony to have no value because the Lieutenant did not specify whether the consent “forms are different for motor vehicle searches as opposed to” other kinds of searches.
After entering into a plea agreement with the State, defendant pled guilty to operating a CDS production facility. On that charge, the court sentenced defendant to ten years imprisonment with a forty-month parole ineligibility period, imposed financial penalties, and suspended his driving privileges for twelve months. In accordance with the plea agreement, the remaining charges were dismissed.
Defendant appealed the denial of his suppression motion.
B.
The Appellate Division reversed the trial court’s suppression order and vacated his conviction based on its determination that the warrantless thermal scan of defendant’s home violated the Fourth Amendment of the United States Constitution and the warrantless seizure of his utility records violated Article I, Paragraph 7 of the New Jersey Constitution. State v. Domicz, 377 N.J. Super. 515, 561 (App. Div. 2005). The appellate panel remanded for a new hearing before a different judge to consider “whether [defendant’s consent] was tainted by the prior unlawful conduct” and to weigh the impact of that conduct “(1) on the credibility of the police version of the alleged consent search, (2) on the legitimacy of the manner in which the police sought consent, and (3) on whether police had a reasonable suspicion that would justify seeking defendant’s consent to a search of his home.” Id. at 548-59. The panel also concluded that the court “erred by failing to allow testimony about a polygraph test administered to defendant.” Id. at 523.
The warrantless thermal scan of defendant’s home in this case occurred more than one year before the United States Supreme Court in Kyllo v. United States, 533 U.S. 27, 40, 121 S. Ct. 2038, 2046, 150 L. Ed.2d 94, 106 (2001), ruled that the Fourth Amendment required law enforcement officers to secure a warrant to conduct such a “search.” Domicz, supra, 377 N.J. Super. at 530-31. Before Kyllo, a majority of courts in the country did not consider a thermal scan a search triggering the protections of the Fourth Amendment. Id. at 532. Nonetheless, the panel held that Detective Peacock and his fellow officers should have anticipated that under Article I, Paragraph 7 of our State Constitution, the courts of this State would prohibit thermal scans of homes without a warrant. Id. at 532-34.
Similarly, the panel held that the officers should have anticipated that a warrantless seizure of utility records would also be declared an unreasonable seizure under Article I, Paragraph 7 by our state courts. Id. at 536-38. In this “matter of first impression” in New Jersey, the panel concluded “that there is a legitimate expectation of privacy in electrical usage records maintained by a power company that precludes the intrusion of law enforcement in the absence of a warrant.” Id. at 538, 546.
The panel considered the conducting of a thermal scan without a warrant and the acquisition of the electrical utility records by a grand jury subpoena to be not only “unlawful conduct,” but also prior bad acts evidence that might suggest that the police also engaged in an unlawful search of defendant’s home. Id. at 549-50. “In other words,” the panel explained, “the [court] is entitled to doubt the likelihood that the officers acted in a constitutionally permissible manner on July 27, 2000, when they did not so act on prior occasions.” Id. at 549. The “prior willingness of the police to engage in unlawful conduct,” the panel stated, could be used to impugn the “credibility of the police version” and lead a court to conclude that defendant’s account was the more believable one. Id. at 549-50. In the same vein, the panel maintained that at a new suppression hearing the court could consider “whether the warrantless intrusion by Detective Peacock and another officer into the gated backyard of defendant’s property” violated the Fourth Amendment and, if so, its impact on “the credibility of the State’s contention that the police acted lawfully when seeking defendant’s consent to a search of his home.” Id. at 550.
Additionally, although defendant did not raise the issue either at the suppression hearing or on appeal, the panel held that police officers must have a reasonable and articulable suspicion that criminal activity is occurring inside a home before requesting consent to search the premises. Id. at 551. By that first-time-ever ruling, the panel extended to the searches of homes the standard that we made applicable to searches of motor vehicles in State v. Carty, 170 N.J. 632, modified on other grounds, 174 N.J. 351 (2002). Domicz, supra, 377 N.J. Super. at 551. The panel “seriously question[ed] whether this standard could be met on the evidence” in the present case. Ibid.
Finally, the panel concluded that defendant should have been given the opportunity to present the results of the polygraph test administered to him by a private polygraph examiner. In yet another matter of first impression, the panel determined that the admissibility of polygraph evidence “in a non-jury setting” is not dependent on a prior agreement between the State and the defendant, thus carving out an exception to the stipulation requirement of State v. McDavitt, 62 N.J. 36 (1972). Domicz, supra, 377 N.J. Super. at 557-58. The panel expressly held that subject to N.J.R.E. 403, “polygraph evidence may be admitted at a suppression hearing, even in the absence of the consent of the State, when credibility is an issue.” Id. at 559-60.
We granted the State’s motion for a stay of the Appellate Division decision, and then its petition for certification. 185 N.J. 268 (2005). We also granted the motion of the Association of Criminal Defense Lawyers of New Jersey to participate as amicus curiae.
II.
We begin by addressing whether the warrantless conducting of a thermal scan of defendant’s home and the acquiring of defendant’s electric utility records pursuant to a grand jury subpoena constituted “unlawful conduct” that could taint the consent search of defendant’s home. The Appellate Division submits that the willingness of the police officers to engage in prior misconduct is evidence that might suggest that the consent search was itself a sham. Domicz, supra, 377 N.J. Super. at 548-50. The panel contends that the prior illegalities could impugn the credibility of Detective Peacock’s account of what occurred on July 27, 2000. Ibid.
A.
First, the panel’s conclusion that the police officers in this case engaged in “prior unlawful conduct” that tainted the consent search cannot be supported on this record. When Detective Peacock conducted the warrantless thermal scan of defendant’s home in May 2000, a majority of the federal circuit courts of appeal had ruled that such a surveillance procedure did not constitute a “search” within the meaning of the Fourth Amendment. United States v. Elkins, 300 F.3d 638, 646 (6th Cir. 2002). In those jurisdictions, therefore, the police did not have to seek a warrant to engage in a procedure that was not deemed a search. At the time of the thermal scan of defendant’s home, no court in this State had addressed the issue. In June 2001, the constitutional landscape became clear when in a five-four decision the United States Supreme Court issued Kyllo v. United States, supra. There, the Court held that when law enforcement officials “use[] a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant” under the Fourth Amendment. 533 U.S. at 40, 121 S. Ct. at 2046, 150 L. Ed. 2d at 106.
We need not decide here whether Kyllo should retroactively apply to this case, which was on appeal at the time of the United States Supreme Court’s decision, or whether this State would have come to a similar result under Article I, Paragraph 7 to the one reached by the Kyllo majority. From the record before us, Detective Peacock learned nothing of value from the thermal scan of defendant’s home. Accordingly, there was nothing wrongfully seized that law enforcement could exploit to defendant’s detriment. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed.2d 441, 454 (1963); State v. Badessa, 185 N.J. 303, 311 (2005). No one has suggested that Detective Peacock developed a lead from the scan or that it somehow furthered the investigation. Without any tangible result from the scan, there was nothing to suppress. Thus, even if Kyllo applied, we fail to see how the thermal scan affected the later consent search.
We cannot agree with the Appellate Division that the failure of the law enforcement officials in this case to anticipate the Kyllo decision, along with most federal circuit courts, suggests willful misconduct, or that such a lack of prescience should be considered part of a pattern of illegality or be used to impair the credibility of an investigating detective. Nor can we agree that the officers may have engaged in willful misconduct because they did not have the foresight to predict what this Court might have done under this State’s Constitution if it had been faced with the Kyllo issue. Even experienced and able jurists, at times, have been unable to forecast decisions of this Court. To permit a court to infer willful wrongdoing from the failure of Detective Peacock to obtain a thermal scan warrant would be unfair and unreasonable in the circumstances of this case.
B.
We next determine that whatever privacy interest attached to defendant’s utility records, the acquiring of those records by a grand jury subpoena satisfied Article I, Paragraph 7 of the State Constitution. The appellate panel appears to concede that no expectation of privacy recognized under the Fourth Amendment was breached when law enforcement officials obtained defendant’s electric utility records through a grand jury subpoena. See Domicz, supra, 377 N.J. Super. at 534-38. However, based on its view of this Court’s Article I, Paragraph 7 search-and-seizure jurisprudence, the panel concluded that defendant had a reasonable expectation of privacy in those records under our State Constitution that required law enforcement officials to obtain a warrant supported by probable cause. Id. at 533-38. Therefore, the panel held that the seizure of defendant’s electricity records by means of only a grand jury subpoena constituted an unlawful search. Id. at 534.
In rendering its decision, the Appellate Division did not have the benefit of our opinion in State v. McAllister, 184 N.J. 17 (2005). There, we held that “under the New Jersey Constitution, citizens have a reasonable expectation of privacy in bank records,” but that “existing grand jury subpoena procedures sufficiently protect that expectation.” Id. at 19. In light of that decision, neither defendant nor amicus curiae offer any persuasive reasons why electric utility records should be afforded greater protection than bank records.
We noted in McAllister that “the Federal Constitution does not recognize an expectation of privacy in bank records.” Id. at 24-26 (citing United States v. Payner, 447 U.S. 727, 100 S. Ct. 2439, 65 L. Ed.2d 468 (1980); United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed.2d 71 (1976)). Therefore, under the Fourth Amendment neither a warrant nor a grand jury subpoena is required for law enforcement officials to gain access to such records. See Payner, supra, 447 U.S. at 732, 100 S. Ct. at 2444, 65 L. Ed. 2d at 474; Miller, supra, 425 U.S. at 442-43, 446, 96 S. Ct. at 1623-24, 1626, 48 L. Ed 2d at 78-79, 81.
In contrast, under our State Constitution we “recognize a citizen’s reasonable expectation of privacy in his or her bank records, even when those records are in the possession of the bank.” McAllister, supra, 184 N.J. at 29. That privacy interest follows from the understanding that, by revealing a history of expenses and purchases, bank records can provide a “virtual current biography” of the account holder. See id. at 31. Bank customers provide personal financial information to banks with the expectation that such information “will remain confidential” and not be turned over to the government “without adequate process.” Ibid.
In McAllister, we acknowledged that an account holder’s privacy interest in his bank records under the New Jersey Constitution must be weighed against the legitimate investigatory needs of law enforcement. Id. at 33. Thus, we held “that the issuance of a grand jury subpoena duces tecum based on a relevancy standard satisfies the constitutional prohibition against improper governmental intrusion.” Id. at 36. We declined to impose a probable cause standard as a precondition to law enforcement officials obtaining a subpoena for bank records. Id. at 33-34, 36. Instead, we applied the prevailing standard for the issuance of a grand jury subpoena, requiring only that the records sought “bear some possible relationship, however indirect, to the grand jury investigation.” Id. at 34 (internal quotation marks omitted).
We discern no basis for treating electric utility records differently from bank records. We do not accept defendant’s comparison of warrantless thermal scanning of a home, which detects amounts of heat emanating from within the premises, to acquiring of utility records by a grand jury subpoena. Although both reveal details about activities within the home, thermal scanning is the equivalent of a physical intrusion into a residence by means of a highly sophisticated surveillance apparatus and therefore constitutes a “search” for purposes of the Fourth Amendment. See Kyllo, supra, 533 U.S. at 35-36, 40, 121 S. Ct. at 2044, 2046, 150 L. Ed 2d at 103, 106. We are not aware of any case that holds that obtaining residential utility records by lawful process is akin to a home invasion or constitutes a search.
Bank records expose much more about a person’s private life and activities within the home than utility records. Bank records may reveal all types of household items purchased and possessed by a person, such as furniture, artwork, and electronic equipment. Through check and debit card payments, those records may disclose what a person eats and drinks, what newspapers and magazines he reads, and even where he vacations. Bank records also may indicate the amount of a person’s utility and telephone bills. In comparison, utility records reveal only the total amount of electricity a person is using in his home on a periodic basis and the amount being paid for those services. It does not divulge personal details -- whether or when the person is watching television, talking on the telephone, or using any particular appliance. Thus, one could easily conclude that a person has a far greater expectation of privacy in his bank records than his utility records.
Significantly, no state court has interpreted its own constitution to mandate that the police first obtain a warrant to obtain electric utility records. The state courts that have considered the issue have rejected the notion that there is a legitimate expectation of privacy in such records. See Samson v. State, 919 P.2d 171, 173 (Alaska Ct. App. 1996) (holding that no reasonable expectation of privacy in utility records exists under Alaska Constitution); People v. Stanley, 86 Cal. Rptr. 2d 89, 94 (Cal. Ct. App. 1999) (finding that defendant did not have “a reasonable expectation of privacy in the quantity of electricity delivered by the utility to [his] house”); People v. Dunkin, 888 P.2d 305, 307 (Colo. Ct. App. 1994) (holding that there is no reasonable expectation of privacy in utility records under either State or Federal Constitution), cert. denied, Smith v. Colorado, 515 U.S. 1105, 115 S. Ct. 2251, 132 L. Ed.2d 259 (1995); State v. Kluss, 867 P.2d 247, 254 (Idaho Ct. App. 1993) (finding that there is no reasonable expectation of privacy in power records under State Constitution); In re Pers. Restraint of Maxfield, 945 P.2d 196 (Wash. 1997) (majority of justices concluding that no reasonable expectation of privacy exists in utility records under State Constitution). See footnote 5
We therefore conclude that defendant’s utility records were obtained properly through a grand jury subpoena and that the Appellate Division erred in finding that those records were obtained through unconstitutional means. See footnote 6 Because there was no official wrongdoing in acquiring the records, the Appellate Division had no basis to reverse the order denying defendant’s motion to suppress or to remand for a determination whether “prior unlawful conduct” tainted the consent search.
III.
We do not agree with the Appellate Division that the trial court “mistakenly rejected the significance of the fact that the officers, by passing through a gate and entering defendant’s backyard, had entered the curtilage of defendant’s home without consent, without a warrant and without probable cause.” Domicz, supra, 377 N.J. Super. at 550. In rendering its decision, the trial court stated that it found Detective Peacock’s testimony “to be credible and believable.” In recounting that testimony, the court recalled that Detective Peacock and a fellow officer passed through the rear gate and entered the curtilage for the purpose of knocking on defendant’s back door and speaking with him. The position of the parked cars in defendant’s driveway led the officers to believe that the back door was used by residents and visitors. The detectives did not observe any criminal wrongdoing or contraband before they were called to the front of the house where defendant had answered the door. Accepting that explanation as truthful, as the trial court did, there was no unconstitutional incursion of the curtilage of defendant’s home.
Curtilage is land adjacent to a home and may include walkways, driveways, and porches. State v. Johnson, 171 N.J. 192, 208-09 (2002). Whether the Fourth Amendment safeguards an area of curtilage depends on a consideration of various factors, including “‘whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.’” Ibid. (quoting United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed.2d 326, 334-35 (1987)). An area within the curtilage to which the public is welcome, such as a walkway leading to an entrance to a home, is not afforded Fourth Amendment protection because the resident has given implicit consent to visitors to approach the home that way. See id. at 209. In other words, when a law enforcement officer walks to a front or back door for the purpose of making contact with a resident and reasonably believes that the door is used by visitors, he is not unconstitutionally trespassing on to the property. Ibid. (declaring that “‘when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go’” the Fourth Amendment is not offended (quoting 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.3(f) (3d ed. 1996))); see also United States v. Garcia, 997 F.2d 1273, 1279-80 (9th Cir. 1993) (observing that “the Fourth Amendment is not implicated when officers go to the back door reasonably believing it is used as a principal entrance to the dwelling”); United States v. Reed, 733 F.2d 492, 501 (8th Cir. 1984) (“[N]o Fourth Amendment search occurs when police officers who enter private property restrict their movements to those areas generally made accessible to visitors.”); United States v. Titemore, 335 F. Supp.2d 502, 505-06 (D. Vt. 2004) (“[T]he law does not require an officer to determine which door most closely approximates the Platonic form of ‘main entrance’ and then, after successfully completing this metaphysical inquiry, approach only that door. An officer making a ‘knock and talk’ visit may approach any part of the building where uninvited visitors could be expected.”), aff’d, 437 F.3d 251 (2d Cir. 2006); United States v. Daoust, 728 F. Supp. 41, 46 (D. Me. 1989) (mem.) (“[P]olice with legitimate business may enter the areas of the curtilage which are impliedly open to use by the public.”), aff’d, 916 F.2d 757 (1st Cir. 1990).
In light of the trial court’s findings, there was no unconstitutional intrusion onto defendant’s property when Detective Peacock and another officer approached the back door. Accordingly, a remand on this issue is unnecessary.
IV.
A.
We next address the Appellate Division’s novel holding that the law enforcement officers in this case had no lawful right to seek consent to search defendant’s home unless they had sufficient information “to generate a reasonable and articulable suspicion that criminal activity was occurring within” the residence. Domicz, supra, 377 N.J. Super. at 551. The panel raised that issue on its own, defendant having failed to raise it at his suppression hearing or before the Appellate Division. Until the panel’s decision, no jurisdiction, including our own, had placed such a restriction on the longstanding and universally acknowledged consent exception to the warrant requirement in the context of a home search. See footnote 7
In establishing a reasonable and articulable suspicion standard as a prerequisite to a consent search of a home, the panel extended our limited holding in State v. Carty, 170 N.J. 632, 635, modified on other grounds, 174 N.J. 351 (2002), which dealt with the specific problems that had attended motor vehicle stops in this State. We held in Carty that Article I, Paragraph 7 of the New Jersey Constitution requires “law enforcement personnel [to] have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle.” Id. at 635. Our Carty decision addressed concerns about the then intractable problem of racial profiling on our highways, see id. at 644-45 (citing publications detailing racial profiling), and “the widespread abuse of our existing law that allow[ed] law enforcement officers to obtain consent searches of every motor vehicle stopped for even the most minor traffic violation.” Id. at 646.
We specifically limited our holding in Carty “to consent searches pursuant to a stop for a traffic infraction.” Id. at 654. “[I]n light of the September 11, 2001 attack on the World Trade Center and the Pentagon,” we cautioned against “attempts to overextend our holding in [Carty,]” recognizing that “[t]he need to protect public safety today is even more readily apparent than” in earlier times. Id. at 652, 654. We noted that our decision did not affect “roadblocks, checkpoints and the like based on a concern for public safety.” Id. at 652. To accentuate the narrow breadth of the Court’s holding, Justice Stein observed in his concurring opinion that it “ha[d] no application to consent searches in airports, bus terminals, train stations, college dormitories, private homes, or business premises.” Id. at 656 (Stein, J., concurring) (emphasis added).
Nonetheless, the panel in this case untethered itself from the factual and jurisprudential moorings of Carty and declared in a footnote that “it would be incongruous to view Carty as being limited to motor vehicles since intrusion into the privacy of the home is ‘the chief evil’ that the Fourth Amendment and Article I, paragraph 7 were designed to prevent.” Domicz, supra, 377 N.J. Super. at 551 n.17. The panel, however, did not have before it a record indicating statistically or even anecdotally that law enforcement officials were indiscriminately misusing the warrant requirement’s consent search exception to gain entry into homes. See Carty, supra, 170 N.J. at 641, 644-45. As noted, before the trial court and Appellate Division, defendant did not claim that such a problem existed. Nor has defendant, amicus curiae, or our dissenting colleagues brought to our attention any evidence (such as research studies, scholarly articles, or periodicals) of law enforcement abuse of the consent exception as it applies to home searches. Because we find no factual or legal justification for such a profound change in our constitutional jurisprudence, we reject the panel’s extension of our Carty holding to the search of a home. See footnote 8
B.
A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed.2d 854, 858 (1973); Carty, supra, 170 N.J. at 650. Indeed, consent searches are considered a “legitimate aspect of effective police activity.” Schneckloth, supra, 412 U.S. at 228, 93 S. Ct. at 2048, 36 L. Ed. 2d at 863. On the record before us, we do not believe that there are sufficient reasons to alter that longstanding constitutional doctrine. We do not agree with the appellate panel that “it would be incongruous to view Carty as being limited to motor vehicles.” Domicz, supra, 377 N.J. Super. at 551 n.17. First, Carty dealt with a problem peculiar to automobiles and disproportionately affecting minority drivers –- the indiscriminate abuse of consent searches of cars whose operators had been stopped for minor traffic infractions. Carty, supra, 170 N.J. at 644-47. Here, there is no claim by defendant or amicus curiae that there is a problem of misuse of consent searches of homes or that minority residents are disproportionately targeted by such searches.
Second, we perceive that there is a greater degree of compulsion to accede to a consent search when a motorist is stranded on a highway after a motor vehicle stop for a minor traffic infraction and the detaining police officer requests permission to search than when a person is secure in his own home and not under any form of detention and a similar request is made. See Carty, supra, 170 N.J. at 644 (“In the context of motor vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume that the individual feels compelled to consent.”). In Carty, we described the inherently coercive predicament of the driver who is stopped on the highway and faced with the perceived choice of either refusing consent to search and therefore increasing the likelihood of receiving a traffic summons, or giving consent to search in the hope of escaping with only a warning. Id. at 641.
The choices are not so stark for the person who, in the familiar surroundings of his home, can send the police away without fear of immediate repercussions. See Schneckloth, supra, 412 U.S. at 247, 93 S. Ct. at 2058, 36 L. Ed. 2d at 874 (suggesting that consent searches are not “inherently coercive” when they “occur on a person’s own familiar territory”); United States v. Carter, 378 F.3d 584, 589 (6th Cir. 2004) (stating that “a man’s home is his castle,” and that “police may be kept out or invited in as informally as any other guest”), cert. denied, 543 U.S. 1155, 125 S. Ct. 1298, 161 L. Ed.2d 121 (2005); cf. State v. Timmendequas, 161 N.J. 515, 615 (1999) (stating that, because questioning of defendant took place in his home, it “was not inherently intimidating”), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001); State v. P.Z., 152 N.J. 86, 103 (1997) (noting that, during interview of defendant in his home, he had “complete freedom to come and go as he pleased”). In limiting the reach of our holding in Carty, we recognized the distinct disadvantage of the motorist detained at the side of the road and the history of abuse of the consent search in the context of motor vehicle stops. Carty, supra, 170 N.J. at 641, 644, 646.
That is not to say that a person will not feel some degree of compulsion whenever a police officer makes a request. See State v. McCloskey, 90 N.J. 18, 24 (1982); State v. Hickman, 335 N.J. Super. 623, 633 (App. Div. 2000). Surely, during a field inquiry, when a police officer asks a question of a person on the street, although that person is lawfully free to leave, he may feel some compulsion to respond. Nonetheless, we do not mandate that police officers have reasonable suspicion before making an inquiry. See State v. Maryland, 167 N.J. 471, 484 (2001). Under our State Constitution, we have heightened requirements to ensure that the waiver of the right to refuse a consent search is voluntarily and knowingly exercised. In State v. Johnson, we held that under Article I, Paragraph 7, if “the State seeks to justify a search on the basis of consent it has the burden of showing that the consent was voluntary, an essential element of which is knowledge of the right to refuse consent.” 68 N.J. 349, 353-54 (1975). Indeed, New Jersey is one of a small minority of jurisdictions in the country requiring the State to prove, as a precondition to the validity of a consent search, that a person have knowledge of his right to refuse to give consent. See State v. Brown, 156 S.W.3d 722, 724 (Ark. 2004) (holding that “a home dweller must be advised of his or her right to refuse consent in order to validate a consensual search under the Arkansas Constitution”); State v. Ferrier, 960 P.2d 927, 934 (Wash. 1998) (holding that police “must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search”). Detective Peacock did in this case what police officers routinely do throughout the State –- he advised defendant that he had a right to refuse to give consent to a search of his home.
Mandating that police officers have reasonable and articulable suspicion to believe that criminal activity is afoot in a home before they can make a request to search the residence will not dispel whatever compulsion a person might feel when confronted by authority figures at his door; certainly the same compulsion would be felt by the person if the officers had reasonable suspicion. The reasonable suspicion standard, however, will limit consent searches to a much smaller universe of cases. In the dangerous times in which we live, we have not been presented with any compelling reason –- such as the record of abuse presented in Carty -- to restrict law enforcement officers in a way that no other jurisdiction has done to date.
As articulated in our case law, to determine whether a person’s consent was voluntarily given or coerced, the proper analytical framework is whether a person has knowingly waived his right to refuse to consent to the search. See Johnson, supra, 68 N.J. at 353-54 (establishing standard of voluntariness of consent under Article I, Paragraph 7, as knowing and intelligent waiver, which includes knowledge of right to refuse consent); State v. King, 44 N.J. 346, 352-53 (1965) (setting forth various non-exhaustive factors supporting either voluntary or coerced nature of consent). Free choice remains an indispensable tenet of our law –- for example, the choice to submit to interrogation or to consent to a search. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed.2d 694, 707 (1966); Johnson, supra, 68 N.J. at 355 (Schreiber, J., concurring) (“Consent contemplates the exercise of a choice” and free choice is “effectively safeguarded if the occupant of the premises knows that the search may be refused.”); see also King, supra, 44 N.J. at 353 (noting that “many decisions have sustained a finding that consent was voluntarily given even though the consent was obtained under the authority of the badge or after the accused had been arrested”). The Constitution protects against unreasonable searches and seizures and against coerced waivers of constitutional rights. It does not disallow voluntary cooperation with the police.
Our dissenting colleagues claim that a “knock and talk” encounter between police and a citizen at his or her home is “coercive,” post at __ (slip op. at 8), despite the Johnson warnings. That position undermines the very essence of Johnson, which is predicated on the principle that informed and voluntary consent is not coerced consent. Moreover, our dissenting colleagues have failed to explain how, under their construct, a “knock and talk” encounter is any less “coercive” if based on reasonable and articulable suspicion. The dissent apparently would allow for the search of defendant’s home, despite a coerced consent to search, provided there is reasonable and articulable suspicion for the search.
In this case, after presiding over the suppression hearing, the trial court determined that the State had proven by clear and convincing evidence that defendant knowingly and voluntarily gave consent to the police to search his home. The positions of the parties were hotly contested and the accounts given by Detective Peacock and defendant were so different and discordant that only one could be telling the truth. The trial court had the “‘feel’ of the case,” the opportunity to make observations of the witnesses denied to an appellate court. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Ultimately, the court found Detective Peacock credible. Defendant does not challenge the sufficiency of the evidence to support that conclusion on the present record. See Johnson, supra, 42 N.J. at 162 (stating that aim of appellate review is “to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record”).
For the reasons discussed, we decline to extend Carty to require that the police have a reasonable and articulable suspicion of criminal activity in a home to justify requesting consent to conduct a search of the premises.
V.
At the suppression hearing, to bolster his credibility, defendant attempted to introduce testimony about the results of an unstipulated private polygraph test he took in his lawyer’s office eighteen months after the search of his home. See footnote 9 Defendant called to the stand Alan Hart, Ph.D., a polygraph examiner, who conducted the polygraph examination and who, according to his report, was prepared to testify that defendant “demonstrated no reactions indicative of deception” when responding to three questions concerning the events surrounding the search of his home. In response to one such question, defendant denied that “any police officer [told him] that [he] could refuse [the] search.” See footnote 10 The State received Dr. Hart’s report four days before the suppression hearing.
The trial court declared Dr. Hart’s testimony irrelevant and barred him from testifying, presumably based on this Court’s decision in State v. McDavitt, 62 N.J. 36, 46 (1972), in which we held that the results of a polygraph examination are admissible only “in a criminal case when the State and defendant enter into a stipulation to have defendant submit to a polygraph test.” The court asserted that determining credibility was the motion judge’s function.
The Appellate Division concluded that the trial court erred by completely excluding the polygraph evidence at the suppression hearing. Domicz, supra, 377 N.J. Super. at 556. The panel distinguished the jury trial case in McDavitt, which restricted the admissibility of polygraph examinations to criminal cases involving stipulations between the State and the defendant, from the suppression hearing in this case, in which defendant intended to introduce his unstipulated polygraph examination to a judge. Id. at 559. The panel held that “in a non-jury setting the admission of [polygraph] evidence, when a proper foundation has been laid, is not limited by McDavitt’s stipulation requirement.” Id. at 558. The panel maintained that “[t]he judge may give that testimony such weight as it warrants, but the extent to which the judge values that evidence should not determine its admissibility.” Id. at 560. The panel, however, conceded that “the State would be entitled to offer the same type of evidence” and that its ruling could “turn some suppression hearings, where credibility is a central issue, into battles between polygraphers.” Id. at 560 n.19.
Defendant and the State dispute the reliability and therefore the relevance of the results of an unstipulated polygraph examination sought to be introduced at a suppression hearing. Defendant essentially argues that if the results of a stipulated examination are sufficiently reliable for a jury’s consideration, results from an unstipulated examination surely must be reliable enough for a judge’s consideration at a motion hearing. The State stresses that McDavitt was a singular exception to the general rule that polygraph evidence is inadmissible, emphasizing that with a stipulated polygraph examination it is “the stipulation between the State and defendant” that confers “probative value” on the polygraph evidence.
First, it must be mentioned that defendant did not seek to present to the trial court evidence that the overall reliability of polygraph examinations has achieved significantly greater acceptance in the scientific and legal community since our decision in McDavitt. The Court acknowledged in McDavitt the general rule that “lie detector testing has not yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception.” 62 N.J. at 44. In that case, the Court carved out a narrow exception to that rule, holding that “[p]olygraph testing has sufficient probative value to warrant admissibility” only when both the State and the defendant agree to be bound by the results. Id. at 46. Thus, limited to a criminal case involving a stipulation between the parties, the Court concluded that “polygraph testing has been developed to such a point of reliability” to allow the admissibility of the results. Ibid.
It is instructive to note that the “circumstance under which the stipulation came into existence [in McDavitt]” was “a consideration” for the Court in deciding that case. Id. at 45. In a criminal jury trial, the defendant in McDavitt, over the prosecutor’s objection, testified that he offered to submit to a polygraph examination after his burglary arrest. Id. at 41. That testimony, this Court noted, should not have been permitted. Id. at 43. But the door was opened. On cross-examination, in response to a question by the prosecutor, the defendant stated he would be willing to take a polygraph test that day. Id. at 41. Eventually, the defendant and the State entered into a court-approved stipulation, agreeing to the admissibility of the results of a polygraph test. Id. at 41-42. Unfortunately for the defendant, the examiner found him to be untruthful. Id. at 42-43. From those unusual facts was born the McDavitt exception.
There is a lack of scientific consensus concerning the reliability of polygraph evidence, which in turn is reflected in the disagreement among state and federal courts concerning the admissibility of such evidence. United States v. Scheffer, 523 U.S. 303, 309-12, 118 S. Ct. 1261, 1265-66, 140 L. Ed.2d 413, 419-21 (1998). In criminal cases, either in a jury or non-jury setting, the vast majority of states either ban polygraph evidence altogether or do not admit such evidence absent a stipulation between the State and the defendant. See Am. Polygraph Ass’n, Polygraph: Quick Reference Guide to the Law iii (17th ed. 2002) (noting that eighteen states require stipulation as precondition of admission and that thirty-one states either ban polygraph evidence per se or have not yet addressed issue), available at http://www.polygraph.org/intro.htm. To our knowledge, New Mexico is the only state in which polygraph evidence is admissible without significant restriction in criminal trials, even absent a stipulation between the parties. See Lee v. Martinez, 96 P.3d 291, 303 (N.M. 2004); Scheffer, supra, 523 U.S. at 311-12, 118 S. Ct. at 1266, 140 L. Ed. 2d at 420 (citing N.M. Rule Evid. § 11-707). See footnote 11 Today, both “state and federal courts continue to express doubt about whether [polygraph] evidence is reliable.” Scheffer, supra, 523 U.S. at 312, 118 S. Ct. at 1266, 140 L. Ed. 2d at 420; see also United States v. Catalan Roman, 368 F. Supp. 2d 119, 123 (D.P.R. 2005); United States v. Canter, 338 F. Supp.2d 460, 463-64 (S.D.N.Y. 2004); see generally Am. Polygraph Ass’n, supra. In the more than thirty years since McDavitt, serious questions about the reliability of polygraph evidence remain.
We realize that some may question the very premise of McDavitt, that polygraph test evidence can be reliable in some circumstances and for some purposes but not others. This is not the occasion to revisit McDavitt’s narrow holding. On the record before us, we are not prepared to extend McDavitt to unstipulated polygraph examinations, even in a suppression hearing presided over by a judge. We are confident that our judges are capable of making credibility decisions in the traditional way, by assessing the logic and sense of the testimony and the manner in which the witness testifies. See Locurto, supra, 157 N.J. at 474. That approach is not fool proof, for whenever human judgment comes into play there is the potential for error, but we are not convinced that polygraph evidence is likely to lead to more correct outcomes.
We also do not believe that the paradigm proposed by the Appellate Division is workable, even in a non-jury setting. If a defendant sought to introduce the results of a private polygraph examination, then the State would have to be given the opportunity to conduct its own polygraph test of the defendant. Cf. State v. Whitlow, 45 N.J. 3, 24-25 (1965) (stating that when defendant presents insanity defense through psychiatric testimony he is subject to examination by State’s psychiatrists); State v. Myers, 239 N.J. Super. 158, 169-70 (App. Div. 1990) (stating that State is entitled to examine defendant who raises defense of insanity or diminished capacity as response “to the anticipated testimony of defendant’s experts on the same subject”), certif. denied, 127 N.J. 323 (1990). Moreover, the Appellate Division admitted that under its approach the State would be permitted to give its witness a polygraph test, and then presumably the defendant would want his polygraph expert to examine that witness. And if the outcome of the case hinged on the credibility of other witnesses, more polygraph examinations likely would follow, leading to the absurd situation of the judge determining the credibility of the experts who are opining about the truthfulness of the witnesses. We will not sanction a war of the experts in an area in which there is so much uncertainty concerning the reliability of the testing procedure itself and which distracts the judge from fulfilling his essential function of assessing directly the credibility of the witnesses.
VI.
For the reasons given, we reverse the decision of the Appellate Division and reinstate the judgment of conviction.
JUSTICES LaVECCHIA, ZAZZALI and RIVERA-SOTO join in JUSTICE ALBIN’s opinion. JUSTICE WALLACE filed a separate opinion concurring in part and dissenting in part in which CHIEF JUSTICE PORITZ and JUSTICE LONG join.
SUPREME COURT OF NEW JERSEY
A- 42 September Term 2005
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KEITH R. DOMICZ,
Defendant-Respondent.
Justice Wallace, Jr., concurring and dissenting.
In my view, the Court is not required to address the difficult issue of whether the reasonable and articulable suspicion standard is a prerequisite to a consent search of a home. Defendant did not raise that issue at his suppression hearing or before the Appellate Division. We have frequently “expressed our reluctance to decide issues that were not addressed in the trial court or the Appellate Division.” Gac v. Gac, 186 N.J. 535, 547 (2006). Moreover, “[w]e have applied that principle even when a constitutional issue is presented.” Ibid. Although the majority opinion recognizes that the issue of the standard for a consent search of a home was not raised below, it nevertheless decides the issue. Because I disagree with the majority’s disposition, I dissent from the conclusion that police are not required to have a reasonable and articulable suspicion of criminal activity in a home before seeking a consent search.
Similar to the Fourth Amendment to the United States Constitution, the New Jersey Constitution prohibits unreasonable searches and seizures. N.J. Const. art. I, ¶ 7. “A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement.” State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The State has the burden of establishing that a warrantless search falls within one of the recognized exceptions. Ibid. In the present case the State urges that the warrantless search of defendant’s home was valid under the consent-search exception. See Schneckloth v. Bustamonte, 412 U.S. 218, 280, 93 S. Ct. 2041, 2075, 36 L. Ed.2d 854, 893 (1973).
We have interpreted Article I, paragraph 7 of the State Constitution to provide enhanced protections beyond that of the Fourth Amendment. See, e.g., State v. Eckel, 185 N.J. 523, 538, 524 (2006) (holding New Jersey Constitution prohibits search of auto incident to arrest where occupant removed from vehicle and secured elsewhere); State v. McAllister, 184 N.J. 17, 33 (2005) (finding legitimate expectation of privacy in bank records under State Constitution in contrast to Federal Constitution); State v. Pierce, 136 N.J. 184, 215 (1994) (invalidating warrantless vehicular search based on arrest for motor vehicle offense); State v. Tucker, 136 N.J. 158, 166-70 (1994) (holding that in contrast with Fourth Amendment, New Jersey Constitution prohibits police from stopping defendant solely because of flight upon seeing police); State v. Hempele, 120 N.J. 182, 195-215 (1990) (holding warrantless searches of garbage bags left on curb for collection invalid under State Constitution); State v. Novembrino, 105 N.J. 95, 145-58 (1987) (rejecting under State Constitution federal “good faith” exception to exclusionary rule for search warrants issued in good faith but without probable cause); State v. Hunt, 91 N.J. 338, 350 (1982) (holding State Constitution affords protectable interest in telephone toll billing records); Alston, supra, at 224-30 (recognizing possessory interest in property sufficient to confer standing under State Constitution to challenge validity of vehicle search); State v. Johnson, 68 N.J. 349, 353-54 (1975) (holding under State Constitution the validity of consent search requires knowledge of right to refuse consent).
Specifically, our consent-search jurisprudence requires the police to inform the person from whom consent is sought of the right to refuse consent. That requirement is not provided under the Federal Constitution. In Schneckloth, supra, the United States Supreme Court held that a consent to search need only be voluntary and whether the defendant knew of the right to refuse consent is only one of the factors to be considered in evaluating the totality of circumstances to determine whether the consent was voluntary. 412 U.S. at 227, 93 S. Ct. at 2047-48, 36 L. Ed. 2d at 862-63. In Johnson, supra, we added to those requirements and held that the validity of a consent to search requires proof that the defendant had “knowledge of the right to refuse consent.” 68 N.J. at 354. We recognized that “[m]any persons, perhaps most, would view the request of a police officer to make a search as having the force of law.” Ibid. As a result, we concluded that “[u]nless it is shown by the State that the person involved knew that he had the right to refuse to accede to such a request [for a consent search], his assenting to the search is not meaningful.” Ibid.
At least one other jurisdiction has followed Johnson and expanded upon the protective procedures for a valid consent to search a home. In State v. Ferrer, 960 P.2d 927, 928 (Wash. 1998), the Supreme Court of Washington addressed a fact pattern analogous to the present case. There the police received information that the defendant was growing marijuana in her home and planned to conduct a “knock and talk.” See footnote 12 Ibid. One of three officers who testified at the suppression hearing indicated that almost everyone subject to a “knock and talk” lets the police into their homes. Ibid. Four officers went to the defendant’s home, two in the front and two in the back to secure the premises. Ibid. After the defendant opened the front door and invited the two officers inside, the two remaining officers were let inside the home. Ibid. The police explained that they had information the defendant was growing marijuana and asked for consent to search the home. Id. at 929. They read the consent form to the defendant, who signed it. Ibid. The search of the home revealed numerous marijuana plants. Ibid. Subsequently, the defendant moved to suppress the evidence. Ibid. In invalidating the search, the court declared that “any knock and talk is inherently coercive to some degree,” id. at 933, and “the home receives heightened constitutional protection,” id. at 934 (quoting State v. Young, 867 P.2d 593, 599 (1994)). As a result, the court held that
when police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.
[Ibid. (emphasis added).]
Recently, in the context of a motor vehicle stop, we expanded the requirements for a consent search. In State v. Carty, 170 N.J. 632, 647, modified on other grounds, 174 N.J. 351 (2002), we affirmed the judgment of the Appellate Division “that consent searches following a lawful stop of a motor vehicle should not be deemed valid under Johnson unless there is reasonable and articulable suspicion to believe that an errant motorist or passenger has engaged in, or is about to engage in, criminal activity.” In explaining the need for a modification of the Johnson standard, we emphasized that our review of scholarly articles, cases from other jurisdictions, and the empirical data available, demonstrated
that despite use of the first-tell-then-ask rule or the voluntary and knowing standard adopted in Johnson, consent searches following valid motor vehicle stops are either not voluntary because people feel compelled to consent for various reasons, or are not reasonable because of the detention associated with obtaining and executing the consent search.
[Id. at 646.]
In the present case, the Appellate Division concluded that the standard we applied to motor vehicles in Carty must apply to the home. State v. Domicz, 377 N.J. Super. 515, 551 n.17 (2005). The panel reasoned that “it would be incongruous to view Carty as being limited to motor vehicles since intrusion into the privacy of the home is ‘the chief evil’ that the Fourth Amendment and Article I, paragraph 7 were designed to prevent.” Ibid. I agree.
We provide greater protections against unreasonable searches and seizures of the home than for other encounters. As expressed by one court, “‘[a]n individual’s privacy interests are nowhere more clearly defined or rigorously protected by the courts than in the home[,] the core of fourth amendment rights.’” Kornegay v. Cottingham, 120 F.3d 392, 397-400 (3d Cir. 1997) (quoting Wanger v. Bonner, 621 F.2d 675, 681 (5th Cir. 1980)). We have emphasized that “[t]here is a lesser expectation of privacy in one’s automobile and in one’s office, than in one’s home.” State v. Johnson, 168 N.J. 608, 625 (2001) (citations omitted); see also State v. Stott, 171 N.J. 343, 355 (2002) (noting that “hospital room is more akin to one’s home than to one’s car or office” in invalidating warrantless search of hospital room). It naturally follows that whatever protections pertain to an automobile search, at a minimum, they must apply to a home.
In refusing to apply the reasonable and articulable suspicion standard to the consent search of the home, the majority overlooks the express limitation of the holding in Carty that was directed to the motor vehicle context. Justice Coleman explained that
[t]o avoid confusion in attempts to overextend our holding in this case in light of the September 11, 2001 attack on the World Trade Center and the Pentagon, we wish to make clear the limitations of this opinion. This decision does not affect the principles enunciated in various state and federal cases that allow roadblocks, checkpoints and the like based on a concern for the public safety.
[Carty, supra, 170 N.J. at 652.]
In short, Carty did not place a restriction on the application of its holding to the private home but rather expressed the Court’s concern that it not be extended to “roadblocks, checkpoints and the like.”
Further, I disagree with the majority’s conclusion that police presence at a home is not coercive. On the contrary, I believe a “knock and talk,” like the one at issue involving numerous officers attempting to enter the home at both means of egress, suffers from at least the same infirmities identified in Carty. See Adrian J. Barrio, Note, Rethinking Schneckloth v. Bustamonte: Incorporating Obedience Theory into the Supreme Court’s Conception of Voluntary Consent, 1 997 U. Ill. L. Rev. 215, 218 (“consent searches contain inherently compelling pressures that threaten the exercise of valuable privacy right.”). Until today, the application of our consent search jurisprudence, including the clear logical extension of our holding in Carty, would require that we extend to the house the reasonable and articulable suspicion standard that we apply to consent searches of automobiles. See also State v. Rodriguez, 172 N.J. 117, 132 (2002) (ordering suppression of evidence seized in consent search not supported by reasonable and articulable suspicion because “illegal detention voids the consent”).
I would also follow the approach of the Supreme Court of Washington and rule that in the future, when the police have reasonable and articulable suspicion to request a consent search, that before they enter the premises, they must make the request for the search and explain the right to refuse and to stop the search at any time. See Ferrer, supra, 960 P.2d at 934.
I would affirm that part of the Appellate Division judgment remanding the case to the Law Division for a hearing to determine whether the police had reasonable and articulable suspicion of criminal activity to request a valid consent search. In all other respects, I concur in the opinion of the Court.
CHIEF JUSTICE PORITZ and JUSTICE LONG join in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-42 SEPTEMBER TERM 2005
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
KEITH R. DOMICZ,
Defendant-Respondent.
DECIDED September 20, 2006
Chief Justice Poritz PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY Justice Wallace
DISSENTING OPINION BY
CHECKLIST REVERSE AND REINSTATE CONCUR IN PART/DISSENT IN PART CHIEF JUSTICE PORITZ X JUSTICE LONG X JUSTICE LaVECCHIA X JUSTICE ZAZZALI X JUSTICE ALBIN X JUSTICE WALLACE X JUSTICE RIVERA-SOTO X TOTALS 4 3
Footnote: 1 This statement of facts is based solely on the evidence presented at the suppression hearing.
Footnote: 2 Although the suppression hearing transcript only refers to the issuance of a subpoena, the State represented to the Court at oral argument that the subpoena was issued by the grand jury.
Footnote: 3 “Thermal imagers detect infrared radiation, which virtually all objects emit but which is not visible to the naked eye. . . . [I]t operates somewhat like a video camera showing heat images.” Kyllo v. United States, 533 U.S. 27, 29-30, 121 S. Ct. 2038, 2041, 150 L. Ed.2d 94, 99 (2001). By conducting a thermal scan of defendant’s home, police could determine whether an unusual amount of heat was coming from the building, which might indicate the use of specialized growth equipment, such as grow lamps.
Footnote: 4 The thermal scan of defendant’s house was conducted prior to the United States Supreme Court’s decision in Kyllo v. United States, supra. In that case, decided June 11, 2001, the Court held that use of a thermal imaging device by police to detect the amount of heat emanating from a person’s home constituted a search for Fourth Amendment purposes, and thus was unconstitutional absent a warrant supported by probable cause. 533 U.S. at 40, 121 S. Ct. at 2046, 150 L. Ed. 2d at 106.
Footnote: 5 We note that the Appellate Division misread Maxfield, a case comprised of three separate opinions. The panel asserted that Maxfield was “the only case we are aware of that has found a reasonable expectation of privacy in [utility] records.” See Domicz, supra, 377 N.J. Super. at 540. In fact, five of nine justices concluded “that there is no constitutionally protected privacy right in electrical consumption records” under the Washington State Constitution. See Maxfield, supra, 945 P.2d at 202 (Madsen, J., concurring); id. at 205-07 (Guy, J., dissenting); see also State v. McKinney, 60 P.3d 46, 50 (Wash. 2002) (“A majority of the justices in Maxfield held there is no protected privacy interest in power records.”).
Footnote: 6 It bears mentioning that based on our review of the record, no information of value was learned by law enforcement by reference to those records. The State conceded that even with the thermal scan and the utility records it did not have probable cause to secure a warrant to search defendant’s home.
Footnote: 7 Because defendant did not raise the issue below, our dissenting colleagues chide us for addressing it, even though the issue is one of the pillars of a published Appellate Division opinion. See post at __ (slip op. at 1). We cannot, however, allow to remain standing an erroneous conclusion of law with such far-reaching effects.
Footnote: 8 Based on the facts and the carefully limited holding of Carty, we do not see how the dissent can conclude that requiring reasonable and articulable suspicion for consent searches of homes is a “clear logical extension of our holding in Carty.” Post at __ (slip op. at 8).
Footnote: 9 By measuring “respiration, pulse rate and blood pressure, and galvanic skin response,” polygraph examinations are used to determine whether a person is telling the truth as that person is asked and answers questions. 31 Leonard N. Arnold, New Jersey Practice Series: Criminal Practice and Procedure § 1.41, at 59 (2005).
Footnote: 10 Defendant also showed “no reactions indicative of deception” when answering the following questions affirmatively: “Did the police announce ‘State police – we have a search warrant’ when they came to your door on July 27, 2000?” and “When you signed that paper on July 27, 2000, did you believe the police had a search warrant?” The results of the examination were inconclusive with regard to the question: “Did you invite the police into your house in Williamstown on July 27, 2000?”
Footnote: 11 See also State v. Barbara, 255 N.W.2d 171, 173 (Mich. 1977) (permitting, at judge’s discretion, admission of polygraph evidence on post-conviction motions for new trial); State v. McHoney, 544 S.E.2d 30, 35 (S.C. 2001) (declaring that polygraph evidence is subject to general rules of evidence but is “generally inadmissible”).
Footnote: 12 A “knock and talk” occurs when the police knock on the door, make contact with the resident, ask if they may enter to talk about their concern, and once inside, ask permission to search the premises.
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