Bail as we know it in New Jersey is going to change starting in January of 2017. The Pretrial Services Program, abbreviated PSP, aims to assure court appearance of a defendant, and on a larger scale, to limit the potential for obstruction of the criminal justice system in the state of New Jersey. PSP is a temporary detention of those committed to county jail. During the detention, the program prepares a risk assessment of the defendant, containing recommendations directing the conditions of the defendant’s release from jail. A computerized risk assessment tool will be used by police to determine whether the defendant is a low, moderate, or high risk to the community and the criminal justice system. A numerical score will be assigned to the defendant, indicating which of the three risk levels to which the defendant corresponds. As used in the decision for determining a bail amount currently, a suspect’s criminal record will also be considered in risk assessment. The decision for pretrial release is required to be made no later than 48 hours after the defendant is committed to jail.
“The drug recognition expert procedure is a systematic and standardized method of examining a suspect to determine: 1) Whether the suspect is impaired; and if so, 2) Whether the impairment related to drugs or medical condition; and if drugs, 3) The category or combination of categories of drugs that are the likely cause of impairment” (IV-3, HS 172A R01/10). “It is a systematic process because it is based on a complete set of observable signs and symptoms that are known to be reliable indicators of drug impairment. A Drug Recognition Expert (DRE) never reaches a conclusion based on any one element of the evaluation, but instead on the totality of facts that emerge” (IV-3, HS 172A R01/10). “The evaluation is standardized because DRE officers perform it the same way every time. Continue reading
Unfortunately college campuses have a high rate of sexual assault and crime apparent within the college culture, but with the passing of a new law, victims now have a much more accessible way of seeking protection against their sexual offender.
Here at the law office, Eric Morrell has knowledge of the new law regarding nonconsensual sexual assault and the changes that it brings to the legal system. If you are a victim of nonconsensual sexual contact, sexual penetration, lewdness, or any attempt at such conduct this office will work vigorously to help you obtain the safety that a protective order could provide. Likewise, if you have a protective order that is filed against you, we will help defend you in the matter. Continue reading
How a Change in the Law Affects You
Can a Police Officer Search Your Car without a Warrant?
Many of our clients are approaching us with questions about a change in the law in regard to motor vehicle searches. Apparently, many police officers are informing our clients that they are now allowed to search a car without a warrant at the scene of a stop. They are also relaying this to their family and friends at the police stations.
This information is true, and in fact has been the law in the United States since 1925! The United States Supreme Court has ruled that police may search a readily mobile vehicle if they have probable cause to believe that criminal evidence or contraband is inside.
This rule of law has been slightly modified by the New Jersey Supreme Court due to a controversial court ruling that was published on September 24, 2015.
In State v. Witt 223 NJ 409 (2015), the New Jersey Supreme Court, changed the automobile search procedures for police that had been in effect in our state since 2000. Under the old law, State v Pena-Flores 198 NJ 16 (2009) police needed to demonstrate both probable cause and exigent circumstances before they were allowed to search a motor vehicle without a warrant. The Witt decision changes all that by eliminating the requirement of exigent circumstances for the police.
What prompted a change in the automobile search law?
William Witt was a New Jersey driver who was stopped by Carneys Point Township Police Officer Joseph Racite on December 19, 2012, at 2:00 a.m. for driving with his high beams on, and not dimming his lights as other vehicles approached.
Witt appeared to be intoxicated when Officer Racite pulled him over, was asked to exit his vehicle, and ended up failing the required field sobriety tests. After Witt was arrested, and placed into the back of the patrol car, Officer Racite went to search Witt’s car.
Officer Racite searched Witt’s vehicle in order to find intoxicants and, instead, found a handgun in the center console.
This led to William Witt being charged with second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b), and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)
Witt’s defense attorney then moved to suppress the gun as evidence because the officer’s search had violated the New Jersey Constitution. The trial court then reviewed the motion and suppressed the evidence, stating that there were no “exigent circumstances”.
The State’s Reaction
In response to the trial court’s decision, the State filed an appeal to the Appellate Court, seeking to overturn the initial ruling.
However, once the Appellate Court reviewed the case, the panel decided that the suppression of the evidence was justified, although on other grounds.
In 2014, the State appealed to the New Jersey Supreme Court, asking the justices to modify the standards set forth in prior established law by removing the exigency requirement for automobile searches by the police.
Why did the Court change the law?
Writing for the Court, Justice Albin pointed out during William Witt’s motion to suppress, that the defense did not argue that the stop itself was unlawful. Rather, their sole challenge was to the search of the Witt’s vehicle. Justice Albin also noted that federal law allows for a warrantless search of a motor vehicle as long as there is probable cause.
The Court noted that the use of telephonic search warrants by the police in automobile searches had proven to be impractical. The available data indicated that the average time for the police to secure a telephonic search warrant had been 59 minutes. Other anecdotal evidence indicated that, on occasion, it would take 1.5 – 2 hours to acquire a warrant. As a result of these time delays, police simply stopped requesting search warrants and began to seek consent from motorists to search their vehicles. In fact, consent requests by police agencies rose from an average of 300 a year to 2,500 per year.
The Court also noted that the requirement for exigent circumstances as part of the New Jersey version of the automobile exception had proven to be confusing to the police and unnecessary to protect the public. This consideration, along with the need to avoid inconvenience to the public and danger for the police during motor vehicle stops persuaded the Justices to change New Jersey law to conform to the federal standard. As a result, for cases on or after September 24, 2015, police officers may search readily mobile vehicles when they have probable cause to believe that contraband or criminal evidence is hidden within the vehicle. The Court also required that, unlike the federal standard, the probable cause determination by the police must develop spontaneously and be unforeseen.
Now that we understand the Court’s reasoning in changing the search warrant standards, our offices wanted to get the perspectives of those who are directly involved with process.
We reached out to a New Jersey Police Officer to obtain his opinion on the new changes.
“State v. Witt is a case that brings NJ more in line with the federal standard,” said the officer. “In New Jersey, we tend to offer broader protections to our citizens than what is afforded by the federal government.”
We then asked the officer if removing exigency from warrant requirements infringes on citizen’s rights.
“That’s tough to say. Upon first thought, the easy answer would be yes. If you really look into what really takes place, I would say no. When NJ followed the Pena-Flores standard, there were factors that would be considered on a case by case basis to determine whether exigency, in fact, existed.”
He substantiated his statement by explaining that “this type of ruling clogged the courts with suppression hearings and would deprive a person of their motor vehicle while the warrant process plays out. In cases when an officer would decide to exercise an abundance of caution by not searching a vehicle, even if exigency may have existed, the process would deprive that citizen of more rights than having the officer search that vehicle for contraband. If probable cause exists, chances are at the end of the day, a judge will sign a warrant and that vehicle will be searched.”
For another perspective, our offices reached out to the New Jersey Office of the Public Defender for a comment on the recent decision.
“This case represents a major setback to civil liberties in the State of New Jersey, where we have historically had more protection of motorists’ rights than other states. With the Witt decision, the protections no longer exist, and police will be able to routinely conduct warrantless searches of vehicles,” replied the Deputy Public Defender of Middlesex County.
The Deputy said that “even if it means that there are more applications for search warrants, it is always a better course to have a judge rather an officer in the field make the determination of what constitutes probable cause.”
So how does this change affect NJ drivers, as well as their family and friends?
The fact remains that the current law, under the ruling decided upon in State v. Witt, allows a police officer to search a motor vehicle as long as there is 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 case decision now reverts back to State v. Alston, which indicates that for a search for a car to occur without a warrant the car must be moveable. In some cases, a search might be unlawful if the vehicle is out of gas, damaged in an accident and is not able to be moved, or is impounded because of a drunk driving matter. As such, these searches would be suppressible if a warrant is not obtained.
Also, another key point is that the search has to be performed on the roadside. If a warrant is not obtained for a non-road side search of a car, evidence could be suppressed. This is a reversal of a case, State v. Martin87 N.J. 561 (1981).
We continue to advise New Jersey drivers to not have any contraband on their persons and/or in their vehicle, and to always obey all traffic, municipal, and state laws!
Whenever you are pulled over by a police officer, always remember to be polite and respectful. Also, make sure that all equipment on your vehicle is functional. Any non-compliance at a stop could potentially lead to additional traffic offenses and/or criminal charges.
If you find yourself subject to an arrest and an automobile search, and require legal representation, we suggest that you contact a knowledgeable criminal defense attorney who is well versed in current New Jersey case law.