NJ LAWS EMAIL NEWSLETTER E485
Kenneth Vercammen, Attorney at Law
January 8, 2016
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| In this Issue:
1. 2016 update Wills and Estate Planning- Free Seminar, January 13,
2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law Office of
Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817.
E485
1. 2016 update Wills and Estate Planning- Free Seminar,
January 13, 2016; Wednesday 12:15PM-1PM and again 5:15PM-6PM at the Law
Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817.
COST: Free if you pre-register by email.
Complimentary materials will be provided at 12:00PM Sharp. We
previously held this seminar for the Metuchen and Edison Adult Schools.
The program is limited to 15 people. Please bring a canned food
donation, which will be given to a community food bank. For attorneys, a
more detailed program will be held April 18th from 5:00PM to 9PM at the
NJ Law Center. Please email us if you plan on attending or if you would
like us to email the materials.
SPEAKER: Kenneth Vercammen, Esq.
(Author-Answers to Questions About Probate)
The NJ Probate Law made a number of substantial changes
in Probate and the administration of estates and trusts in New Jersey.
2. Major Change in law permits car search if police have
probable cause to believe that the vehicle contains contraband or
evidence of crime. State v. Witt __ NJ __ (2015) Warrantless auto search permitted on probable cause.
The NJ Supreme Court Held:
exigent-circumstances standard set forth in Pena-Flores is unsound in
principle and unworkable in practice. Citing Article I, Paragraph 7 of
New Jersey's State Constitution, the Court returns to the standard
articulated in State v. Alston,
88 N.J. 211 (1981), for warrantless searches of automobiles based on
probable cause: The automobile exception authorizes the warrantless
search of an automobile only when the police have probable cause to
believe that the vehicle contains contraband or evidence of an offense
and the circumstances giving rise to probable cause are unforeseeable
and spontaneous.
In this appeal, the Court addresses the constitutional
standard governing an automobile search and considers whether to
continue to follow the standard set forth in State v. Pena-Flores, 198 N.J. 6 (2009).
Defendant William L. Witt was charged in an indictment with
second-degree unlawful possession of a firearm and second-degree
possession of a weapon by a convicted person. The police initiated a
stop of defendant's car because he did not dim his high beams when
necessary, and a search of his vehicle uncovered the handgun.
Defendant moved to suppress the gun on the ground that the
police conducted an unreasonable search in violation of the New Jersey
Constitution. Defendant's sole argument was that the police did not have
exigent circumstances to justify a warrantless search of his car under
Pena-Flores. At the suppression hearing, Officer Racite testified that
at approximately 2:00 a.m., while providing backup for a motor-vehicle
stop, he observed a car pass with its high beams on.
The officer explained that a car must dim its high beams "as
vehicles approach." Thus, Officer Racite stopped the vehicle, and
requested backup. Defendant, the driver, appeared intoxicated and was
asked to exit his car. Defendant then failed field-sobriety and balance
tests, and Officer Racite arrested him for driving while intoxicated.
Defendant was handcuffed and placed in the back of a patrol car. While
Officer Racite searched defendant's vehicle for "intoxicants," he found a
handgun in the center console. With Pena-Flores as its guide, the trial
court found as follows: the officer had a right to stop defendant's car
based on an "unexpected" occurrence and had probable cause to search
for an open container of alcohol, but did not have "sufficient exigent
circumstances" to conduct a warrantless search. Accordingly, the court
suppressed the handgun.
The Appellate Division granted the State's motion for
leave to appeal and affirmed the suppression of the gun "because of the
utter absence of any exigency to support the warrantless vehicle search
that occurred," and "because there was no justification for this motor
vehicle stop." 435 N.J. Super. 608, 610-11 (App. Div. 2014). The panel
declined to address the State's argument that the exigent-circumstances
test in Pena-Flores
"should be replaced because it has proved to be unworkable and has led
to unintended negative consequences," explaining that, as an
intermediate appellate court, it had no authority to replace Pena-Flores with some other legal principles.
The panel also agreed with defendant's argument,
raised for the first time on appeal, that Officer Racite did not have a
reasonable and articulable suspicion to stop defendant because the
relevant statute (N.J.S.A. 39:3-60) requires drivers to dim their high
beams only when approaching an oncoming vehicle within 500 feet.
Resolution of the issue before the Court implicates
the doctrine of stare decisis. Because stare decisis promotes
consistency, stability, and predictability in the development of legal
principles and respect for judicial decisions, a "special justification"
is required to depart from precedent. That said, stare decisis is not
an inflexible principle depriving courts of the ability to correct their
errors. Among the relevant considerations in determining whether to
depart from precedent are whether the prior decision is unsound in
principle and unworkable in practice. The Court, therefore,
turns to consider whether Pena-Flores is furthering the constitutional
values that are protected by the New Jersey Constitution and whether
there is "special justification" for departing from it.
The use of telephonic search warrants has not resolved
the difficult problems arising from roadside searches, as the Court
expected when it decided Pena-Flores.
Prolonged encounters on the shoulder of a crowded highway may pose an
unacceptable risk of serious bodily injury and death to both police
officers and citizens. Moreover, the seizure of the car and the
motorist's detention may be a greater intrusion on a person's liberty
interest than the search is on a person's privacy interest. Finally, the
dramatic increase in the number of consent searches since Pena-Flores
is apparently an unintended consequence of that decision, reflecting the
difficulty presented to police officers by the Pena-Flores
multi-factor exigent-circumstances standard. The Court is concerned
about consent searches in such great numbers, particularly in light of
the historic abuse of such searches and the coercive effect of a search
request made to a motorist stopped on the side of a road. The Court,
therefore, concludes that the current approach to roadside searches
premised on probable cause places significant burdens on law enforcement
without any real benefit to the public.
Although the Court determines that the exigent-circumstances standard set forth in Cooke and Pena-Flores
is unsound in principle and unworkable in practice, it does not adopt
the federal standard for automobile searches because it is not fully
consonant with the interests embodied in Article I, Paragraph 7 of the
State Constitution. The Court returns to the Alston standard, which
states that the automobile exception authorizes the warrantless search
of an automobile only when the police have probable cause to believe
that the vehicle contains contraband or evidence of an offense and the
circumstances giving rise to probable cause are unforeseeable and
spontaneous. The Court's decision limits the automobile exception to
on-scene warrantless searches, unlike federal jurisprudence, which
allows a police officer to conduct a warrantless search at headquarters
merely because the officer could have done so on the side of the road.
The Court's decision is a new rule of law to be applied prospectively. Therefore, for purposes of this appeal, Pena-Flores is the governing law. However, going forward, the exigent-circumstances test in Cooke and Pena-Flores
no longer applies, and the standard set forth in Alston for warrantless
searches of automobiles based on probable cause governs.
The judgment of the Appellate Division is AFFIRMED, and
the matter is REMANDED to the trial court for proceedings consistent
with this opinion.
Editorial Assistance provided by Dhruv Patel. Mr.
Patel currently attends Rutgers University and is participating in
Kenneth Vercammen's Winter Break Internship Program.
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Editorial Assistance Provided by Juhi Duggirala. Ms. Duggirala is participating in Ken Vercammen's Fall Internship Program and currently attends Kean University.
All
materials Copyright 2016. 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
