Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

To schedule a confidential consultation, call us or New clients email us evenings and weekends via contact box www.njlaws.com.

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500

Friday, April 9, 2021

Brian Csobor - Spring 2021 Law Clerk & Kenneth Vercammen

 Brian Csobor of Rutgers University New Brunswick Spring 2021 Law Clerk & Kenneth Vercammen



Benjamin Klein - Spring 2021 Law Clerk & Kenneth Vercammen

 Benjamin Klein of Widener University Delaware Law School Spring 2021 Law Clerk & Kenneth Vercammen


Maya Patel -Spring 2021 Law Clerk & Kenneth Vercammen

Maya Patel of Rutgers University New Brunswick Spring 2021 Law Clerk & Kenneth Vercammen







 

Thursday, April 1, 2021

North Brunswick Library Changes in the Legal Landscape of NJ Virtual Seminar

North Brunswick Public Library Changes in the Legal Landscape of NJ Virtual Seminar including DWI Penalties, Marijuana Laws, and Updates on the NJ Expungement Law for the Removal of Criminal Arrests & Convictions.
May 18 via Zoom online 6pm
Free community program
Open to the public. You do not need to be a resident to attend
SPEAKER: Kenneth Vercammen, Esq. Edison, NJ (Author- Wills and Estate Administration by the ABA)
Have you been arrested for a DWI or drug possession?
Do you know your options?
Do you want to learn more about new DWI laws & how marijuana laws are changing in NJ?
Are you someone who needs an expungement? Do you know someone that needs an expungement?
Join speaker Kenneth Vercammen, Esq., as he discusses the new DWI law permitting interlock on your car in lieu of license suspension, the NJ Attorney General Directives adjourning or dismissing cases involving marijuana possession, the current status of legal marijuana, & updates on NJ Expungement law.
Register at: https://form.jotform.com/210595894957172
You will be sent the virtual program URL following registration.
Any questions, please email librarian Ryan Miller at rmiller@northbrunswicklibrary.org
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
www.njlaws.com 

Wednesday, March 10, 2021

Local 9 Annual Top Municipal Court Cases and Laws 2020-2021

 Local 9 Annual Top Municipal Court Cases and Laws 2020-2021

 

By Kenneth Vercammen, Esq. Edison, NJ

  1. Marijuana Decriminalization 
  2. Special Rules on pot for Those Under the Age of 21 
  3. AG Directive 2021-1: Directive Governing Dismissals of Certain Pending Marijuana Charges
  4. Pot Cases already resolved: Vacate plea or Conditional Discharge
  5. What Police can’t do when they smell pot

6 What police can’t do if smell pot with person under 21

 

  1. Defendant must be advised of the changes in order to uphold Miranda waiver State v Sims

 

8 In new science such as DNA, defendant can have scientific evidence such as machine software source code. State v Pickett

  1. Lewd gestures to home camera could be violation of TRO State v EJH

 

  1. Marijuana Decriminalization 

     The Governor on February 22, 2021 signed three bills changing the legal status of marijuana. These laws, which went into immediate effect, create a two-tier framework: 

  • Regulated cannabis. When the substance is bought, sold, and used under certain conditions, it is treated as “regulated cannabis” and fully legal in New Jersey. However, regulated cannabis will not be available for several months until a new government body, the Commission, issues rules governing its use. 


Legal amounts for Marijuana   The following conduct no longer violates state law:

  • Simple possession of 6 ounces or less of marijuana, 2C:35-10(a)(4)(b); 

  • Simple possession of 17 grams or less of hashish, 2C:35-10(a)(4)(b); 

  • Being under the influence of marijuana or hashish, 2C:35-10(b); 

  • Failure to properly dispose of marijuana or hashish, 2C:35-10(c); 

  • Possession of paraphernalia for marijuana or hashish, 2C:36-2; and 

  • Possession of marijuana or hashish as a motor vehicle operator, 39:4-49.1. 


      As part of these revised thresholds, the law creates a new framework for individuals who distribute 1 ounce or less of marijuana or 5 grams or less of hashish: 

  • First offense. Officers shall issue a written warning to individuals for their first offense. Law enforcement agencies will need to build new mechanisms to track the issuance of such warnings. 

  • Second or subsequent offense. Individuals who engage in a second or subsequent violation of the statute are subject to a complaint-summons for a fourth-degree crime. 
1 Under the new law, the prohibitions against distribution of marijuana also apply to possession with intent to distribute marijuana.

    In addition to these changes, law enforcement officers may no longer detain, arrest, or otherwise take into custody an individual for violating certain marijuana or hashish offenses. Instead, officers should collect the individual’s personal information and process them accordingly. Those offenses are: 

  • Simple possession of more than 6 ounces of marijuana, 2C:35-10(a)(3)(b); 

  • Simple possession of more than 17 grams of hashish, 2C:35-10(a)(3)(b); 

  • Distribution of 1 ounce or less of marijuana, 2C:35-5(b)(12)(b); and 

  • Distribution of 5 grams or less of hashish, 2C:35-5(b)(12)(b). 
All four of these offenses constitute fourth-degree crimes, except when an individual engages in their first violation of the distribution offenses (which, as noted above, only results in a warning). Officers should therefore charge these fourth-degree offenses by complaint-summons rather than complaint-warrant, and should not fingerprint the individual until their initial court appearance on the summons. 

      The odor of marijuana or hashish, either burnt or raw, by itself no longer establishes “reasonable articulable suspicion” to initiate a stop or search of a person or their vehicle to determine a violation of a possession offense or a fourth-degree distribution offense. 


Source https://www.nj.gov/oag/dcj/agguide/AG-Interim-Guidance-Marijuana-Decrim-2020-0222.pdf

  1. Special Rules on pot for persons Under the Age of 21 

The law also establishes a new framework for individuals under the age of 21 who possess or consume any amount of marijuana, hashish, cannabis, or alcohol in any public place, including a school: 

  • First offense. Officers shall issue a written warning, which must include the person’s name, address, and date of birth, but the warning shall not be provided to the individual’s parent or guardian. 

  • Second offense. Officers shall issue a written warning, and also provide the person with informational materials on community drug treatment services. For individuals under the age of 18, the officer shall provide the individual’s parent or guardian with copies of the warnings issued for both the first and second offenses. 

  • Third or subsequent offense. Officers shall issue a written warning and again provide the individual with information on community drug treatment services. If the individual is between 18 and 21, then the officer shall provide notice of the written warning to the community drug treatment program; if the individual is under 18, then the officer shall again provide the juvenile’s parents or guardian with a copy of the written warning. 


Law enforcement officers must also retain, with any of the written warnings outlined above, a sworn statement with a description of the factual circumstances that support a finding of the violation.

As with the new warning system required for adults who distribute small amounts of marijuana, this new framework for individuals under the age of 21—codified at N.J.S.A. 2C:33- 15—will require law enforcement agencies to develop new mechanisms to track the issuance of these warnings. In the interim, agencies should use existing resources to track this information. Additional guidance on this issue will be forthcoming. 

Please note that, under this framework, officers may not fingerprint individuals under the age of 21 for their first, second, third, or subsequent offenses. However, if an individual under 21 is in possession of more than 6 ounces of marijuana or 17 grams of hashish, that individual is also in violation of N.J.S.A. 2C:35-10(a)(3)(b), a fourth-degree crime, and may be issued a complaint- summons and fingerprinted at their first court appearance. 

  1. AG Directive 2021-1: Directive Governing Dismissals of Certain Pending Marijuana Charges This directive instructs state, county, and municipal prosecutors to dismiss charges pending as of February 22, 2021 for any marijuana offense that is no longer illegal under state law.

 

Pending Cases are to be dismissed. Effective immediately, prosecutors shall seek dismissals of any pending charges listed in the following chart in any cases where a juvenile or adult’s conduct occurred on or before February 22, 2021. Dismissals can be requested on an ad hoc basis as the cases are scheduled for a municipal or superior court proceeding. In cases involving multiple charges, only the charges listed in the chart are to be dismissed pursuant to this Directive; all other charges and pending matters should remain.

2C:35-5(b)(12) 2C:35-10(a)(3) 2C:35-10(a)(4) 2C:35-10(b)

2C:35-10(c) 2C:36-2

2C:36A-1 39:4-49.1

  1. Pot Cases already resolved: Vacate plea or Conditional Discharge

      For those cases already resolved, pursuant to the new decriminalization laws, the Administrative Office of the Courts will vacate by operation of law any guilty verdict, plea, placement in a diversionary program, or other entry of guilt on a matter where the conduct occurred prior to February 22, 2021.

         Also vacated will be any conviction, remaining sentence, ongoing supervision, or unpaid court-ordered financial assessment of any person who is or will be serving a sentence of incarceration, probation, parole or other form of community supervision as of February 22, 2021 as a result of the person’s conviction or adjudication of delinquency solely for the above listed charges.

 Effective date. This Directive shall take effect February 22, 2021

  1. What Police can’t do when they smell pot

       What should an officer do if they smell marijuana coming from a vehicle during a motor vehicle stop?

First, the officer should take the traditional investigative steps to determine if there is probable cause to believe that the driver is operating the vehicle while under the influence, in violation of N.J.S.A. 39:4-50. If so, the driver may be arrested and the vehicle may be searched.

          If the driver is not found to be under the influence, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify a continued stop, nor probable cause to conduct a search of the vehicle or the person, in a marijuana possession case or even in a low-level (fourth-degree) possession with intent to distribute marijuana case. As a result, the vehicle and occupants must be released once the initial reason for the stop has been addressed.


      May an officer initiate or continue a pedestrian stop of an individual based on the officer detecting the odor of marijuana?

No, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify or continue a pedestrian stop. In addition, the odor of marijuana by itself does not establish probable cause to conduct a search in a marijuana possession case or even a low-level (fourth-degree) possession with intent to distribute marijuana case. The age of the person being stopped is irrelevant in these situations.


6 What police can’t do if smell pot with person under 21

The new law also prohibits law enforcement officers from engaging in certain actions when investigating an individual under the age of 21 for possession of marijuana, hashish, cannabis, or alcohol, in violation of N.J.S.A. 2C:33-15(a)(1). Importantly, officers who violate these provisions may be charged criminally with depriving the individual of their civil rights, regardless of whether the officer intended to do so. Prohibited conduct includes: 

  • Officers shall not ask an individual under 21 for consent to search the person to determine a violation of that crime. (However, if the individual is over 18 and the officer reasonably believes that other criminal activity is afoot, the individual may grant consent to search); 

  • The odor of marijuana, hashish, or alcohol no longer constitutes reasonable articulable suspicion to initiate a stop of an individual under the age of 21, nor does it provide probable cause to search the person’s personal property or vehicle to determine a violation of N.J.S.A. 2C:33-15(a)(1). 

  • The unconcealed possession of an alcoholic beverage, marijuana, hashish, or cannabis item in violation of N.J.S.A. 2C:33-15(a)(1) that is observed in plain sight shall not constitute probable cause to initiate a search of an individual under the age of 21 or that individual’s personal property or vehicle to determine a violation of any law. 

  • An individual under the age of 21 who violates N.J.S.A. 2C:33-15(a)(1) shall not be arrested, detained, or otherwise taken into custody except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required. 

  • When responding to a violation or suspected violation of N.J.S.A. 2C:33-15(a)(1), law enforcement officers must activate their body worn cameras, which must remain activated throughout the encounter. 
Source https://www.nj.gov/oag/dcj/agguide/AG-Interim-Guidance-Marijuana-Decrim-2020-0222.pdf

 

Top other cases

1  Court holds  parked car with engine running is operation and can be DWI. Attorney seeks Supreme Court reversal

State v. Thompson 462 NJ Super.270 (App. Div. 2020) 

2  Neither federal nor state protections against compelled disclosure shield iPhone  passcodes 

State v. Andrews 243 N.J. 447  (2020).

 

3 No more stop for license plate holder partially obstructing Garden State words State v Roman- Rosado  461 NJ Super.183 (App. Div 2020)

 

  1. US Supreme Court ruled that it was reasonable under the Fourth Amendment for a police officer to make a traffic stop after running the license plate of a vehicle and learning that the owner’s driver’s license

has been revoked  Kansas v Glover 140 S. Ct 1183 (2020)

 

5 New Expungement Law makes expungement more available.

6 New law signed eliminated all mandatory loss of licenses for drug offenses in criminal cases.  

7 The legislature also did away with loss of license for the CDS in motor vehicle 39:4-49.1  

  1. No Insurance Penalties 39:6B-2 . No more mandatory suspension on no insurance
  2. Misrepresenting age to induce sale or delivery of beer to minor 33:1-81 –No more mandatory DL suspension

 

10 No more DL suspension for Fail to appear for disorderly persons offense, a petty disorderly persons offense

11 Repealed DL suspension for Failure to comply with installment order; additional penalties 39:4-203.2.

  1. The Supreme Court remanded State v Olenowski to a Special Master for a Frye Hearing on the reliability and admissibility of Drug Recognition Evaluation evidence. 
  2. Guys try to rob a cop and lose State v. Adams

 

1  Court claims parked car with engine running is operation and can be DWI. Attorney seeks Supreme Court reversal

State v. Thompson 462 NJ Super.270 (App. Div. 2020) 

    In this appeal, the court held that an intoxicated defendant asleep and behind the wheel of a parked motor vehicle with its engine running is "operating" the vehicle within the meaning of N.J.S.A. 39:4-50(a).  

 

 Defendant appealed from his convictions for DUI and refusing to submit to a breath test. Defendant argued that the state failed to present sufficient evidence to prove the statutory element that defendant was "operating" his vehicle under the influence of alcohol or that he had a conscious intent to do so. The court rejected defendant's argument and affirmed his conviction. The court noted that the evidence at trial showed that police were called to a convenience store where defendant was observed sleeping in his car with the engine running. As officers woke defendant, they noticed the strong odor of alcohol on his breath. Defendant acknowledged to officers that he had "a couple of drinks." After failing field sobriety tests, defendant was arrested. At the police station, defendant acknowledged that he had prescriptions for methadone, hydrocodone, Xanax, and Cymbalta and that he had consumed two alcoholic drinks within a three hours period. The court held that this evidence was sufficient for the factfinder to concluded that defendant was intoxicated while sleeping behind the wheel of his vehicle. The court ruled that defendant was "operating" his vehicle since operation of a motor vehicle could include sitting or sleeping behind the wheel of a vehicle with the engine running, even if the vehicle is not observed in motion. Finally, the court found defendant's other contentions on appeal to have insufficient merit to warrant discussion.

     Source Daily Briefing, an exclusive New Jersey State Bar Association member benefit, in partnership with the New Jersey Law Journal. Join the NJSBA for this benefit!

https://www.law.com/njlawjournal/almID/1581570609NJA190919T/

 

2  Neither federal nor state protections against compelled disclosure shield Andrews’s passcodes 

State v. Andrews, 243 N.J. 447  (2020).

The Court considers whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self- Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination.

Neither federal nor state protections against compelled disclosure shield Andrews’s passcodes

HELD: Neither federal nor state protections against compelled disclosure shield Andrews’s passcodes.

  1. The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution require that search warrants be “supported by oath or affirmation” and describe with particularity the places subject to search and people or things subject to seizure. Andrews does not challenge the search warrants issued for his cellphones or the particularity with which the search warrants describe the “things subject to seizure.” Thus, the State is permitted to access the phones’ contents, as limited by the trial court’s order, in the same way that the State may survey a home, vehicle, or other place that is the subject of a search warrant. Andrews objects here to the means by which the State seeks to effectuate the searches authorized by the lawfully issued search warrants -- compelled disclosure of his cellphones’ passcodes -- which Andrews claims violate federal and state protections against compelled self-incrimination.
  2. The Fifth Amendment right against self-incrimination applies only when the accused is compelled to make a testimonial communication that is incriminating. Actions that do not require an individual to disclose any knowledge he might have or to speak his guilt are nontestimonial and therefore not protected. In contrast to physical communications, if an individual is compelled to disclose the contents of his own mind, such disclosure implicates the Fifth Amendment privilege against self-incrimination.
  3. The Court reviews the origin and development of the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination in Fisher v. United States, 425 U.S. 391 (1976), United States v. Doe, 465 U.S. 605 (1984), and United States v. Hubbell, 530 U.S. 27 (2000). From those cases, which all addressed the compelled production of documents, the following principles can be inferred: For purposes of the Fifth Amendment privilege against self-incrimination, the act of production must be considered in its own right, separate from the documents sought. And even production that is of a testimonial nature can be compelled if the Government can demonstrate it already knows the information that act will reveal -- if, in other words, the existence of the requested documents, their authenticity, and the defendant’s possession of and control over them -- are a foregone conclusion.
  4. Although the Supreme Court has considered the application of the foregone conclusion exception only in the context of document production, courts in other jurisdictions have grappled with the applicability of the exception beyond that context, and many have considered whether the exception applies to compelled decryption or to the compelled production of passcodes and passwords, reaching divergent results. Among other causes for that divergence is a dispute over how to adapt the foregone conclusion analysis from the document-production context, which involves the act of producing the document and the contents of the document, to the context of passcode production, which involves the act of producing the passcode that protects the contents of the electronic device. Some courts to consider the issue have focused on the production of the passcode as a means to access the contents of the device, treating the contents of the devices as the functional equivalent of the contents of the documents at issue in the Supreme Court cases. Other courts have focused on the passcodes themselves as that which is produced. The Court reviews case law expressing both views.
  5. Here, the State correctly asserts that the lawfully issued search warrants -- the sufficiency of which Andrews does not challenge -- give it the right to the cellphones’ purportedly incriminating contents as specified in the trial court’s order. And neither those contents -- which are voluntary, not compelled, communications -- nor the phones themselves -- which are physical objects, not testimonial communications -- are protected by the privilege against self-incrimination. Therefore, production of the cellphones and their contents is not barred. But access to the cellphones’ contents depends here upon entry of their passcodes. Communicating or entering a passcode requires facts contained within the holder’s mind. It is a testimonial act of production.
  6. The inquiry does not end there, however, because, if the foregone conclusion exception applies, production of the passcodes may still be compelled. To determine the exception’s applicability, the Court first considers to what it might apply -- the act of producing the passcodes, or the act of producing the cellphones’ contents through the passcodes. The relevant Supreme Court cases explicitly predicate the applicability of the foregone conclusion doctrine on the fundamental distinction between the act of production and the documents to be produced. The documents may be entitled to no Fifth Amendment protection at all -- and, indeed, they were not so entitled in Fisher -- but the act of producing them may nevertheless be protected. In light of the stark distinction the Court has drawn between the evidentiary object and its production -- a division reinforced even in those cases where the foregone conclusion exception was held not to apply -- it is problematic to meld the production of passcodes with the act of producing the contents of the phones, an approach that imports Fourth Amendment privacy principles into a Fifth Amendment inquiry. The compelled act of production in this case is that of producing the passcodes. Although that act of production is testimonial, passcodes are a series of characters without independent evidentiary significance and are therefore of minimal testimonial value -- their value is limited to communicating the knowledge of the passcodes. Thus, although the act of producing the passcodes is presumptively protected by the Fifth Amendment, its testimonial value and constitutional protection may be overcome if the passcodes’ existence, possession, and authentication are foregone conclusions.
  7. Based on the record in this case, compelled production of the passcodes falls within the foregone conclusion exception. The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the exception thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones. The Court would reach the same conclusion if it viewed the analysis to encompass the phones’ contents. The search warrants and record evidence of the particular content that the State knew the phones contained provide ample support for that determination. This was no fishing expedition.
  8. Turning to state law, the relevant statute and corresponding rule of evidence explicitly afford a suspect the “right to refuse to disclose . . . any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate.” N.J.S.A. 2A:84A-19; N.J.R.E. 503 (emphasis added). For the right of refusal to apply, therefore, a matter must first be found to be incriminating. N.J.S.A. 2A:84A-18 and N.J.R.E. 502, in turn, define the circumstances under which a matter will be deemed incriminating: “(a) if it constitutes an element of a crime against this State, or another State or the United States, or (b) is a circumstance which with other circumstances would be a basis for a reasonable inference of the commission of such a crime, or (c) is a clue to the discovery of a matter which is within clauses (a) or (b) above . . . .” Where ownership and control of an electronic device is not in dispute, its passcode is generally not substantive information, is not a clue to an element of or the commission of a crime, and does not reveal an inference that a crime has been committed. Finding that the passcodes are therefore not protected by statute, the Court considers state common law protections. (
  9. New Jersey’s common law privilege against self-incrimination derives from the notion of personal privacy established by the United States Supreme Court in Boyd v. United States, 116 U.S. 616 (1886). The Fisher Court overturned Boyd’s protection of private documents. See 425 U.S. at 407. In In re Grand Jury Proceedings of Guarino, the Court affirmed its “belief in the Boyd doctrine and [held] that the New Jersey common law privilege against self-incrimination protects the individual’s right ‘to a private enclave where he may lead a private life.’” 104 N.J. 218, 231 (1986). Thus, despite the shift at the federal level, the New Jersey common law privilege continues to consider whether evidence requested is of an inherently private nature. Noting as much yields the answer here. The constitutional privacy considerations, see U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7, that would apply to those portions of the cellphones’ contents of which disclosure has been ordered have already been considered and overcome through the unchallenged search warrants granted in this case. Whether the inquiry is limited here to the passcodes or extended to the phones’ contents, the result is the same.

3 No more stop for license plate holder partially obstructing Garden State words State v Roman- Rosado  461 NJ Super.183 (App. Div 2020)

Following the stop of defendant's car for allegedly violating N.J.S.A. 39:3-33 because the license plate frame on the car's rear license plate "concealed or otherwise obscured" the words "Garden State" at the bottom of the license plate, a warrantless search of the car uncovered an unloaded handgun. The trial court denied defendant's motion to suppress the search and seizure of the handgun, and defendant subsequently pled guilty to second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(b)(1).

In defendant's appeal, the court was asked to decide: (1) whether there was reasonable suspicion to stop defendant's car for violating N.J.S.A. 39:3-33; and (2) whether the subsequent search and seizure of the handgun was legally permissible.

Based upon the common understanding of the words "conceal" and "obscure," this court concludes there was no reasonable suspicion to stop defendant's car for violating N.J.S.A. 39:3-33 where the minimal covering of "Garden State" did not make the words indecipherable. Hence, the seized gun was inadmissible to prove a second-degree certain persons offense.

For the sake of completeness, the court further decides that even if there was reasonable suspicion to stop defendant's car for a N.J.S.A. 39:3-33 violation, the subsequent search was not legally permissible because it did not satisfy the State's proffered exceptions to conduct a warrantless search of an automobile, i.e., a search incident to arrest, or a protective sweep.

Accordingly, the court reverses and vacates the conviction for second-degree certain persons not to possess weapons, and remands so defendant can move to vacate his guilty plea and have the judgment of conviction vacated pursuant to Rule 3:9-3(f).

 

  1. US Supreme Court ruled that it was reasonable under the Fourth Amendment for a police officer to make a traffic stop after running the license plate of a vehicle and learning that the owner’s driver’s license has been revoked

Kansas v Glover 140 S. Ct 1183 (2020)

Supreme Court of the United States.

A Kansas deputy sheriff ran a license plate check on a pickup truck, discovering that the truck belonged to respondent Glover and that Glover's driver's license had been revoked. The deputy pulled the truck over because he assumed that Glover was driving. Glover was in fact driving and was charged with driving as a habitual violator. He moved to suppress all evidence from the stop, claiming that the deputy lacked reasonable suspicion. The District Court granted the motion, but the Court of Appeals reversed. The Kansas Supreme Court in turn reversed, holding that the deputy violated the Fourth Amendment by stopping Glover without reasonable suspicion of criminal activity.

Held: When the officer lacks information negating an inference that the owner is driving the vehicle, an investigative traffic stop made after running a vehicle's license plate and learning that the registered owner's driver's license has been revoked is reasonable under the Fourth Amendment.

(a) An officer may initiate a brief investigative traffic stop when he has "a particularized and objective basis" to suspect legal wrongdoing. United States v. Cortez, 449 U. S. 411, 417. The level of suspicion required is less than that necessary for probable cause and "depends on "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'"" Prado Navarette v. California, 572 U. S. 393, 402. Courts must therefore permit officers to make "commonsense judgments and inferences about human behavior." Illinois v. Wardlow, 528 U. S. 119, 125. P. 3.

(b) Here, the deputy's commonsense inference that the owner of a vehicle was likely the vehicle's driver provided more than reasonable suspicion to initiate the stop. That inference is not made unreasonable merely because a vehicle's driver is not always its registered owner or because Glover had a revoked license. Though common sense suffices to justify the officer's inference, empirical studies demonstrate that drivers with suspended or revoked licenses frequently continue to drive. And Kansas' license-revocation scheme, which covers drivers who have already demonstrated a disregard for the law or are categorically unfit to drive, reinforces the reasonableness of the inference that an individual with a revoked license will continue to drive. Pp. 4-6.

(c) Glover's counterarguments are unpersuasive. He argues that the deputy's inference was unreasonable because it was not grounded in his law enforcement training or experience. Such a requirement, however, is inconsistent with this Court's Fourth Amendment jurisprudence. See, e.g., Navarette, 572 U. S., at 402. It would also place the burden on police officers to justify their inferences by referring to training materials or experience, and it would foreclose their ability to rely on common sense obtained outside of their work duties. Glover's argument that Kansas' view would permit officers to base reasonable suspicion exclusively on probabilities also carries little force. Officers, like jurors, may rely on probabilities in the reasonable suspicion context. See, e.g., United States v. Sokolow, 490 U. S. 1, 8-9. Moreover, the deputy here did more than that: He combined facts obtained from a database and commonsense judgments to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity. 

(d) The scope of this holding is narrow. The reasonable suspicion standard "`takes into account the totality of the circumstances.'" Navarette, 572 U. S., at 397. The presence of additional facts might dispel reasonable suspicion, but here, the deputy possessed no information sufficient to rebut the reasonable inference that Glover was driving his own truck. 

308 Kan. 590, 422 P. 3d 64, reversed and remanded.

5 New Expungement Law makes expungement more available.

New Jersey expungement law will take effect on June 15, 2020 and will increase the number of records of arrests and convictions that can be expunged.

 

S4154 creates a petition process for “clean slate” expungement for residents who have not committed an offense in ten years and who have not been convicted of the most serious crimes. 

The bill also requires the State to implement an automated clean slate expungement system, which will be developed by a task force charged with studying the technological, fiscal, and practical issues and challenges associated with such a system.

Further, the bill requires that low-level marijuana convictions be sealed upon the disposition of a case, preventing those convictions from being used against those individuals in the future. It also makes numerous other changes to existing expungement procedures, including the creation of an e-filing system that would eliminate filing fees to petition for an expungement.

  1. 2019, c.269 a great explanation is on my friend Allain Marian’s website

6 New law signed eliminated all mandatory loss of licenses for drug offenses in criminal cases. New laws  

7 The legislature also did away with loss of license for the CDS in motor vehicle 39:4-49.1    CDS in motor vehicle 

Elimination of mandatory DL suspensions related to drugs

  1. No Insurance Penalties 39:6B-2 . No more mandatory suspension on no insurance

39:6B-2 Penalties revised for No insurance Failure to carry motor vehicle insurance coverage- No more mandatory DL suspension

 

First offense: Fine and a period of

community service as determined

by the court, and OPTIONAL suspension of

driving privileges for 1 year

fine $300 $1000 plus court costs

Plus 9 car insurance points and $750 in MVC surcharges per offense

 

No insurance 2nd & Subsequent offense:

Shall be subject to 14 days

imprisonment, mandatory 30 days

community service and

 suspension up to two years

fine up to $5000 plus court costs

Plus 9 car insurance points and $750 in MVC surcharges per offense

  1. Misrepresenting age to induce sale or delivery of beer to minor 33:1-81 –No more mandatory DL suspension The Belmar- Seaside offense

39:4-56.5 Abandonment of motor vehicle   No more DL suspension  39:4-56.5 Abandonment of motor vehicle   No more suspension  First offense:    fine $100 $500 plus court costs   Subsequent offense:   fine $500 $1000
 

10 No more DL suspension for Fail to appear for disorderly persons offense, a petty disorderly persons offense, a violation of a municipal ordinance, or a violation of any other law of this State 

 Repealed 2A:4A-43.3.Suspension, postponement of right to operate motor vehicle for an initial act of graffiti

11 Repealed DL suspension for Failure to comply with installment order; additional penalties 39:4-203.2.

 Repealed 2C:33-3.1 Penalties for juvenile violating N.J.S.2C:33-3. False public alarms. No more Driver license suspension section 2 of P.L.1999, c.195 (C.2C:33-3.1);

Repealed 39:4-203.2. Suspension for Failure to comply with installment order; additional penalties

  1. The Supreme Court remanded State v Olenowski to a Special Master for a Frye Hearing on the reliability and admissibility of Drug Recognition Evaluation evidence. 
  2. Guys try to rob a cop and loses State v. Adams

Defendant appealed from the May 30, 2019 Law Division order denying his petition for post-conviction relief without an evidentiary hearing.

Defendant appealed from the May 30, 2019 Law Division order denying his petition for post-conviction relief without an evidentiary hearing. Defendant and the co-defendant accosted two victims

who were entering their hotel room on the evening of May 18, 2009.

         One victim was an off-duty police officer who turned and fired multiple shots at defendant and co-defendant. Defendant and co-defendant fled and received medical treatment.

          Defendant claimed they were shot by three masked men in a separate location. Defendant and co-defendant were arrested when police could not confirm a shooting occurred in the described location. The victims did not adequately see their attackers in order to identify them, but forensic evidence confirmed defendant and co-defendant were the attackers.

       Defendant and co-defendant argued the evidence, including defendant's handgun, were planted at the scene. They were convicted of armed robbery and related offenses and sentenced to an aggregate extended term of fifty years' imprisonment. Defendant filed a petition for PCR, alleging ineffective assistance of counsel. The PCR judge denied the petition without an evidentiary hearing, stating defendant failed to present a prima facie claim and other claims in the petition were procedurally barred. On appeal, the court affirmed the PCR judge's denial. The court found defendant's arguments were without sufficient merit to warrant further discussion in a written opinion, per Rule 2:11-3(e)(2). The court agreed with the PCR judge that defendant did not present a prima facie claim for ineffective assistance of counsel, and therefore defendant was not entitled to an evidentiary hearing.

 







Sunday, February 28, 2021

Interim Guidance Regarding Marijuana Decriminalization from Attorney General February 22, 2021

 Interim Guidance Regarding Marijuana Decriminalization 

  Attorney General February 22, 2021

      Governor Phil Murphy  on February 22, 2021 signed three bills changing the legal status of marijuana. These laws, which went into immediate effect, create a two-tier framework: 

   Regulated cannabis. When the substance is bought, sold, and used under certain conditions, it is treated as “regulated cannabis” and fully legal in New Jersey. As a practical matter, however, regulated cannabis will not be available in the State for several months until a new government body, the Cannabis Regulatory Commission, issues rules governing its use. 

   Marijuana and hashish. All forms of the substance that are not regulated cannabis or medical cannabis are treated as “marijuana” or “hashish.” Under the new laws, marijuana and hashish are still defined as “controlled dangerous substances” under N.J.S.A. 2C:35- 2 but are largely decriminalized for non-distribution offenses. The laws eliminate existing prohibitions and create new, more lenient penalties for possession and distribution that remain tiered based on weight. This document is designed to provide interim guidance to law enforcement officers regarding the treatment of marijuana and hashish under the new laws. In addition, today I am issuing a separate document answering a number of the questions most commonly asked by law enforcement officials about marijuana enforcement. My office will continue to update that document and post answers on our website in the coming weeks and months. In the meantime, all officers are encouraged to familiarize themselves with the three new laws, which are codified as chapters 16 (legalized cannabis), 19 (marijuana decriminalization), and 25 (clarifying provisions) of the 2021 Public Laws. 

Source https://www.nj.gov/oag/dcj/agguide/AG-Interim-Guidance-Marijuana-Decrim-2020-0222.pdf

    I. New Limits on Marijuana and Hashish 

As of February 22, 2021, the following conduct no longer violates state law: 

   Simple possession of 6 ounces or less of marijuana, 2C:35-10(a)(4)(b); 

   Simple possession of 17 grams or less of hashish, 2C:35-10(a)(4)(b); 

   Being under the influence of marijuana or hashish, 2C:35-10(b); 

   Failure to properly dispose of marijuana or hashish, 2C:35-10(c); 

   Possession of paraphernalia for marijuana or hashish, 2C:36-2; and 

   Possession of marijuana or hashish as a motor vehicle operator, 39:4-49.1. In addition, the following weight thresholds now apply to the possession and distributionof marijuana and hashish: 

More than 6 oz. 6 oz. or less 

25 lbs. or more 5 lbs. or more 

More than 1 oz. 1 oz. or less 

More than 17 g. 3(b) 17 g. or less 4(b) 

5 lbs. or more 10(a) 1 lbs. or more 10(b) More than 5 g. 11(b) 5 g. or less 12(b) 

Fourth
Not a crime 

First Second Third
[See below

 

Possession – 2C:35-10 

Marijuana 

Hashish 

Subsect. 

Degree 

Distribution – 2C:35-5(b) 

Marijuana 

Hashish 

Subsect. 

Degree 

 

As part of these revised thresholds, the law creates a new framework for individuals who distribute 1 ounce or less of marijuana or 5 grams or less of hashish: 

   First offense. Officers shall issue a written warning to individuals for their first offense. In the coming weeks, law enforcement agencies will need to build new mechanisms to track the issuance of such warnings. In the interim, agencies should rely on existing resources to track warnings and, out of an abundance of caution, treat any individual’s offense as a first offense unless the officer has clear evidence of a prior violation. 

   Second or subsequent offense. Individuals who engage in a second or subsequent violation of the statute are subject to a complaint-summons for a fourth-degree crime. Under the new law, the prohibitions against distribution of marijuana also apply to possession with intent to distribute marijuana. Therefore, all references to “distribution” in this guidance document also apply to conduct that involves possession with intent to distribute. 

           In addition to these changes, law enforcement officers may no longer detain, arrest, or otherwise take into custody an individual for violating certain marijuana or hashish offenses. 

 

Instead, officers should collect the individual’s personal information and process them accordingly. Those offenses are: 

   Simple possession of more than 6 ounces of marijuana, 2C:35-10(a)(3)(b); 

   Simple possession of more than 17 grams of hashish, 2C:35-10(a)(3)(b); 

   Distribution of 1 ounce or less of marijuana, 2C:35-5(b)(12)(b); and 

   Distribution of 5 grams or less of hashish, 2C:35-5(b)(12)(b). All four of these offenses constitute fourth-degree crimes, except when an individual engages in their first violation of the distribution offenses (which, as noted above, only results in a warning). Officers should therefore charge these fourth-degree offenses by complaint-summons rather than complaint-warrant, and should not fingerprint the individual until their initial court appearance on the summons. Finally, the odor of marijuana or hashish, either burnt or raw, by itself no longer establishes “reasonable articulable suspicion” to initiate a stop or search of a person or their vehicle to determine a violation of a possession offense or a fourth-degree distribution offense. 

II. Special Rules for Those Under the Age of 21 

The law also establishes a new framework for individuals under the age of 21 who possess or consume any amount of marijuana, hashish, cannabis, or alcohol in any public place, including a school: 

   First offense. Officers shall issue a written warning, which must include the person’s name, address, and date of birth, but the warning shall not be provided to the individual’s parent or guardian. 

   Second offense. Officers shall issue a written warning, and also provide the person with informational materials on community drug treatment services. For individuals under the age of 18, the officer shall provide the individual’s parent or guardian with copies of the warnings issued for both the first and second offenses. 

    Third or subsequent offense. Officers shall issue a written warning and again provide the individual with information on community drug treatment services. If the individual is between 18 and 21, then the officer shall provide notice of the written warning to the community drug treatment program; if the individual is under 18, then the officer shall again provide the juvenile’s parents or guardian with a copy of the written warning. Law enforcement officers must also retain, with any of the written warnings outlined above, a sworn statement with a description of the factual circumstances that support a finding of the violation. As with the new warning system required for adults who distribute small amounts of marijuana, this new framework for individuals under the age of 21—codified at N.J.S.A. 2C:33- 15—will require law enforcement agencies to develop new mechanisms to track the issuance of these warnings. In the interim, agencies should use existing resources to track this information. Additional guidance on this issue will be forthcoming. 

Please note that, under this framework, officers may not fingerprint individuals under the age of 21 for their first, second, third, or subsequent offenses. However, if an individual under 21 is in possession of more than 6 ounces of marijuana or 17 grams of hashish, that individual is also in violation of N.J.S.A. 2C:35-10(a)(3)(b), a fourth-degree crime, and may be issued a complaint- summons and fingerprinted at their first court appearance. 

The new law also prohibits law enforcement officers from engaging in certain actions when investigating an individual under the age of 21 for possession of marijuana, hashish, cannabis, or alcohol, in violation of N.J.S.A. 2C:33-15(a)(1). Importantly, officers who violate these provisions may be charged criminally with depriving the individual of their civil rights, regardless of whether the officer intended to do so. Prohibited conduct includes: 

   Officers shall not ask an individual under 21 for consent to search the person to determine a violation of that crime. (However, if the individual is over 18 and the officer reasonably believes that other criminal activity is afoot, the individual may grant consent to search); 

   The odor of marijuana, hashish, or alcohol no longer constitutes reasonable articulable suspicion to initiate a stop of an individual under the age of 21, nor does it provide probable cause to search the person’s personal property or vehicle to determine a violation of N.J.S.A. 2C:33-15(a)(1). 

   The unconcealed possession of an alcoholic beverage, marijuana, hashish, or cannabis item in violation of N.J.S.A. 2C:33-15(a)(1) that is observed in plain sight shall not constitute probable cause to initiate a search of an individual under the age of 21 or that individual’s personal property or vehicle to determine a violation of any law. 

   An individual under the age of 21 who violates N.J.S.A. 2C:33-15(a)(1) shall not be arrested, detained, or otherwise taken into custody except to the extent required to issue a written warning or provide notice of a violation to a parent/guardian, unless the person is being arrested, detained, or otherwise taken into custody for also committing another violation of law for which that action is legally permitted or required. 

    When responding to a violation or suspected violation of N.J.S.A. 2C:33-15(a)(1), law enforcement officers must activate their body worn cameras, which must remain activated throughout the encounter. 

Source https://www.nj.gov/oag/dcj/agguide/AG-Interim-Guidance-Marijuana-Decrim-2020-0222.pdf