Top 15 Cases of 2012 for Municipal Courts

BY KENNETH A. VERCAMMEN
1. No automatic right for DWI defendant to inspect inside of police station State v
Carrero 428 NJ Super. 419 (App. Div. 2012) State v Baluski (CONSOLIDATED) The court
reviewed discovery orders separately issued in these two DWI cases authorizing defense
counsel and/or defense experts to inspect and photograph rooms within the police stations
where their respective clients provided breath samples on the Alcotest device in order to
verify that the tests were properly administered.
In Carrero, such access was granted to help ascertain whether devices emitting radio
frequency interference (RFI) had been located in the station within 100 feet of the testing
area. In Baluski, such access was granted to help ascertain whether the interior layout of the
station physically prevented defendant from being observed for the required twenty minutes
before testing.
The court reversed the discovery orders because neither defendant has shown a reasonable
justification to conduct the requested inspection.
The court concluded that Carrero's request is insufficient in light of the Supreme Court's
binding legal and evidentiary determination in State v. Chun, 194 N.J. 54, 89 (2008), that the
Alcotest is designed in a manner that is " "well shielded from the impact of any potential RFI,"
and also in light of the State's countervailing security interests disfavoring routine civilian
access to the interior of a police station.
The court concluded that Baluski's request is likewise insufficient because he has presented
no affirmative basis to believe that an officer failed to observe him for the twenty pre-testing
minutes required by Chun, supra, 194 N.J. at 79, and also in light of the State's countervailing
security interests.
2. Police Could Search Car Involved in armed Robbery Without a Warrant. State v.
Minitee 210 NJ 307 (2012)
Under the circumstances of this case, the trial court correctly denied the defendants
motion to suppress because the warrantless search of the SUV that was involved in the
robbery fit within the scope of the automobile exception to the search warrant requirement.
1. The United States Constitution and the New Jersey Constitution guarantee an individuals
right to be secure against unreasonable searches or seizures. A search conducted without a
warrant is presumed to be invalid. There are exceptions to the warrant requirement, and the
State bears the burden of establishing by a preponderance of the credible evidence that one
of the exceptions applies. Only two exceptions are pertinent to this matterthe search
incident to arrest exception and the automobile exception. With regard to search incident to
arrest, when police place an individual under arrest, they may search his person and the area
within his immediate grasp. In the automobile context, New Jersey restricts the scope of the
search to the area from which an individual may seize a weapon or destroy evidence. The
search in this case cannot be sustained as one incident to Minitees arrest. It can only
withstand challenge if its circumstances bring it within the scope of the automobile exception.
2. The New Jersey Constitution provides citizens with greater protections than its federal
counterpart. Under New Jersey law, three factors are considered before applying the
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automobile exception to the warrant requirement: 1) whether the stop was unplanned and
unforeseen--the police must have no advance knowledge of the events to unfold so that they
cannot create the exigency; 2) whether police had probable cause to believe the automobile
contained evidence of criminality; and 3) whether exigent circumstances made it impractical to
obtain a warrant.
3. The Appellate Division based its conclusion that exigent circumstances were lacking in this
case on State v. Pena-Flores, 198 N.J. 6 (2009), which discussed facts that can contribute to
the presence of exigent circumstances, such as the time of day, location of the stop, unfolding
events establishing probable cause, whether it would be safe to leave the car unguarded, and
others. However, the discussion in Pena-Flores was not intended to provide an exhaustive list
and was focused on the facts of that case. In this case, other facts demonstrate that police
were confronted with exigent circumstances. These include an armed robbery, at least two
perpetrators on the run who were possibly armed, a search for them that spanned several
municipalities, and an attempt to find a discarded weapon before a bystander was injured or it
was taken and hidden for future criminal activity. Additionally, the site where the SUV came to
rest was poorly lit and not amenable to a thorough search, and the officers had no assurance
that the perpetrators on the run were not in the vicinity and able to fire at them. Because the
facts of Pena-Flores are distinguishable from this matter, its legal principles are not dispositive
of this case.
4. State v. Martin, 87 N.J. 561 (1981), is instructive. In Martin, police located a car involved in
a robbery and could see in the car a glove that matched the description of a glove worn by
one of the robbers. The police had the car towed to the station and searched it without a
warrant. The Court upheld the search, explaining that the suspected robbers were at large,
lighting where the car was discovered was dim, exigency was heightened by the fact that
police were actively involved in an ongoing investigation shortly after the robbery and near to
where it occurred, and there was an urgent need to ascertain whether the car contained
evidence of the armed robbery before the suspects could leave the area or destroy or dispose
of other evidence.
5. In this case, it is not dispositive that the vehicle had been at police headquarters for some
time before it was searched. The difficulties the officers faced were exacerbated by the
multiple sites that had to be examined for clues, the critical need to locate the handgun, and
the fact that events were unfolding close to midnight in the dead of winter. The officers
actions were reasonable under the circumstances.
The judgment of the Appellate Division was REVERSED, and the defendants convictions
were REINSTATED.
3. Police use of GPS device on car violates 4 th Amendment
United States v Jones 131 S. Ct. 3064 (2012)
The Governments attachment of the GPS device to the vehicle, and its use of that device
to monitor the vehicles movements, constitutes a search under the Fourth Amendment. GPS
not permitted without a warrant.
(a) The Fourth Amendment protects the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures. Here, the
Governments physical intrusion on an effect for the purpose of obtaining information
constitutes a search. This type of encroachment on an area enumerated in the Amendment
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would have been considered a search within the meaning of the Amendment at the time it
was adopted.
(b) This conclusion is consistent with this Courts Fourth Amendment jurisprudence, which
until the latter half of the 20th century was tied to common-law trespass. Later cases, which
have deviated from that exclusively property-based approach, have applied the analysis of
Justice Harlans concurrence in Katz v. United States, 389 U. S. 347, which said that the
Fourth Amendment protects a persons reasonable expectation of privacy, id., at 360. Here,
the Court need not address the Governments contention that Jones had no reasonable
expectation of privacy, because Joness Fourth Amendment rights do not rise or fall with the
Katz formulation. At bottom, the Court must assure preservation of that degree of privacy
against government that existed when the Fourth Amendment was adopted. Kyllo v. United
States, 533 U. S. 27. Katz did not repudiate the understanding that the Fourth Amendment
embodies a particular concern for government trespass upon the areas it enumerates. The
Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the
common-law trespassory test. See Alderman v. United States, 394 U. S. 165; Soldal v. Cook
County, 506 U. S. 56. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468
U. S. 705post-Katz cases rejecting Fourth Amendment challenges to beepers, electronic
tracking devices representing another form of electronic monitoringdo not foreclose the
conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v.
United States, 466 U. S. 170, also does not support the Governments position.
c) The Governments alternative argumentthat if the attachment and use of the device was
a search, it was a reasonable oneis forfeited because it was not raised below
4. No Jail For Careless Driving Unless Finding of Aggravating Circumstances. State v.
Palma 426 NJ Super. 510 (App. Div. 2012)
On appeal from a trial de novo in the Law Division, the court reversed and remanded for
resentencing consistent with the principles established in State v. Moran, 202 N.J. 311 (2010).
The court holds that the imposition of a custodial sentence for careless driving, N.J.S.A. 39:497, requires a finding of aggravating circumstances evincing as "a matter of degree" more
than mere carelessness, and that the tragic death of the victim, resulting from a motor vehicle
violation, is not dispositive of whether a custodial sentence is appropriate under the
circumstances.
5. Expert Cannot Testify that Activity was Drug Distribution. State v. Jones 425 NJ
Super. 258 (App. Div. 2012)
The court reversed defendant's drug distribution conviction, concluding that: 1) the
testimony provided by the State's drug distribution expert, on whether defendant possessed
the cocaine for personal use or instead for distribution, ran afoul of the proscriptions in State
v. McLean, 205 N.J. 438 (2011), and State v. Odom, 116 N.J. 65 (1989); and 2) the admission
of evidence that defendant possessed oxycodone denied him a fair trial, as he was not
charged with that offense, and the State should not have been permitted to use such N.J.R.E.
404(b) evidence to bolster its contention that defendant possessed the cocaine with the
intention of selling it. [This case limits experts ability to testify in other cases on the main
subject matter of the case]
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6 Police cant search apartment after 911 call if no danger. State v. Edmonds 211 NJ
117 (2012)
In responding to a 9-1-1 report of possible domestic violence, once the police officers
found that there was inadequate evidence to corroborate the 9-1-1 report and determined that
the parties safety was not an issue, there was no objectively reasonable basis to search the
residence under either the community- caretaking or emergency-aid exceptions to the warrant
requirement and the evidence obtained through the warrantless search must be suppressed.
HELD: In responding to a 9-1-1 report of possible domestic violence, once the police officers
found that there was inadequate evidence to corroborate the 9-1-1 report and determined that
the parties safety was not an issue, there was no objectively reasonable basis to search the
residence under either the community-caretaking or emergency-aid exceptions to the warrant
requirement and the evidence obtained though the warrantless search must be suppressed.
1. The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the
New Jersey Constitution guarantee the right of the people to be secure against unreasonable
searches and seizures, and state that no warrants shall issue except upon probable cause.
Under New Jersey case law, warrantless searches, particularly of a home, are presumptively
invalid and the State must establish that such a search was justified by an exception to the
warrant requirement, such as the emergency-aid doctrine or the community-caretaking
doctrine.
2. The emergency-aid doctrine permits officials to enter a dwelling without a warrant to protect
or preserve life, or to prevent serious injury. The three-part test for determining whether a
warrantless search is justified by the emergency-aid doctrine was set forth in State v. Frankel.
The test inquired whether 1) the official had an objectively reasonable basis to believe that an
emergency required him to provide immediate assistance to protect or preserve life or prevent
serious injury; 2) the officials primary motivation for entry into the home was to render
assistance, not to find and seize evidence; and 3) there was a reasonable nexus between the
emergency and the area to be searched. Because the United States Supreme Court has held
that the subjective motivation of a police officer is irrelevant and the appropriate question is
whether, viewing the circumstances objectively, the actions of the officer were justified, the
Court aligns New Jerseys jurisprudence with federal law and eliminates the second part of
the test, leaving only the two objective inquiries. The Court cautions that the emergency-aid
doctrine, particularly when applied to the entry of a home, must be limited to the reasons and
objectives that prompted the need for immediate action.
3. Here, officers responded to a 9-1-1 report of possible domestic violence involving a gun at
Richardsons home. Neither the 9-1-1 callers identity nor the information he provided were
corroborated, and the United States Supreme Court has cautioned that there is no automatic
firearm exception to the established reliability analysis of an anonymous tip. Reviewing the
facts of the case, the Court finds that police had a duty to look behind the denials by
Richardson while her son remained potentially in jeopardy in the apartment, and it does not
question the officers decision to enter the home to assure the boys safety. The Court
assumes that the detention and frisk of Edmonds also were proper. However, the Court finds
that once there was no longer an objective basis to believe that an emergency was at hand,
the privacy interests of the home were entitled to the highest degree of respect. At that point,
the police needed to obtain a search warrant to proceed any further. The State did not
overcome the presumption that the warrantless search of the residence was unreasonable.
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4. In determining whether the community-caretaking exception to the warrant requirement

justified the search of Richardsons home, the Court acknowledges that police officers provide
a wide range of social services outside of their traditional law enforcement and criminal
investigatory roles, including protecting the vulnerable from harm and preserving property. In
performing these tasks, there is not time to acquire a warrant when emergent circumstances
arise and an immediate search is required to preserve life or property. In Bogan, the Court
found justified by the community-caretaking exception an officers decision to enter an
apartment in which an alleged sexual assault of a minor had occurred for the purpose of
speaking on the telephone with the parent of a child who answered the door. However, Bogan
did not involve a search for evidence or a weapon in a home. Here, the officers investigated
and failed to corroborate the domestic violence report, thereby fulfilling their communitycaretaking function. If the officers wished to search the apartment for a gun, they had to apply
for a warrant supported by probable cause. The findings of the trial court that the police
conducted a home search that exceeded the permissible boundaries of the communitycaretaking doctrine are supported by sufficient credible evidence in the record.
7. Testimony at DV Trial can be used at criminal trial for impeachment State v Duprey
427 NJ Super. 314 (App. Div. 2012)
This case required the court to determine whether testimony given by the plaintiff or
defendant during the trial of a domestic violence matter can be used for the purposes of
cross- examination in a related criminal trial. The Court determined that a broad application of
the language of N.J.S.A. 2C:25-29(a), which provides that "testimony given by the plaintiff or
defendant in the domestic violence matter shall not be used in the simultaneous or
subsequent criminal proceeding against the defendant," would impair a criminal defendant's
rights under the Confrontation Clause of the Sixth Amendment. The Court further determined
that the Legislature did not intend to permit a criminal defendant who testifies at his criminal
trial to be immune from cross-examination based on prior inconsistent statements made
under oath at the DV trial. The Court held that testimony from a DV trial can be used for the
limited purpose of cross-examination in a manner consistent with the opinion, but cannot be
used as affirmative evidence except as permitted by the statute.
8. Right to Counsel Not Established by Desire to Speak with Mother. State v. DiazBridges 208 NJ 544 (2012)
Because neither defendants statements about his desire to speak with his mother nor
any of his other statements were assertions of his constitutionally-protected right to silence,
the suppression of any portion of his confession was in error.
1. To determine whether a defendant invoked the right to remain silent, the Court employs a
totality of the circumstances approach that focuses on the reasonable interpretation of
defendants words and behaviors. If the suspects invocation of the right to remain silent is clear
and unambiguous, it must be scrupulously honored. If, however, the invocation is equivocal or
ambiguous, leaving the investigating officer reasonably unsure whether the suspect was
asserting that right, the Court has not required that the interrogation cease, but has instead
permitted officers to clarify the ambiguous words or acts. Because both the words used and the
suspects behaviors form part of the inquiry into whether the officer should have reasonably
believed that the right was being asserted, the inquiry demands a fact-sensitive analysis. When
the trial courts factual findings are based only on its viewing of a recorded interrogation that is
equally available to the appellate court, the appellate court may consider the recording itself and
deference to the trial courts interpretation is not required.
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2. Although the mere request by an adult to speak with a parent does not equate to an
invocation of the right to remain silent, the totality of the circumstances approach implicates
considerations other than the suspects words, including changes in demeanor and emotional
responses to questions about a crime. There is no basis on which to conclude, merely because
a suspect responds to a question by weeping or moaning, or with other changes in behavior,
that he or she intends to invoke the right to silence. Although those behaviors form part of the
larger mosaic of the circumstances to be considered, none of them taken alone is a sufficient
indication of a decision to invoke the right to silence that the immediate cessation of the
interrogation must follow.
3. Considering the totality of the circumstances, defendant did not invoke his right to silence.
Defendant willingly agreed to speak with the police on multiple occasions. Although when
confronted with inconsistencies in his various stories, defendants demeanor changed and he
began to weep, one cannot reasonably equate that response with the invocation of any right.
Nor is his request to speak with his mother of constitutional significance. Nothing in the words
that defendant used suggested that he was asking for the questioning to stop or intended to
invoke his right to silence. When defendant did clarify the reasons for the request, he told the
detectives that he wanted to be the first to tell his mother what he had done. He repeatedly
told them that he was willing to continue speaking with them. As a result, his requests to
speak with his mother cannot be interpreted to have been a desire to secure her advice about
the waiver of his rights or an assertion of silence pending the grant of permission to speak
with her.
4. Contrary to the trial courts findings, the record does not support a finding that defendant
was overborne by exhaustion or psychological stress, unfairly pressured, or told that he was
required to answer the interrogators questions. Although the appellate panel found that
defendants statement at six hours and five minutes sufficed to invoke the right to silence,
there is nothing in those words that differed from his earlier assertions. Although the panel
relied on defendants statement that he wanted to go home, that assertion was made when he
was alone in the interrogation room and there is no indication that the detectives were aware
of that statement.
5. Defendants requests to speak with his mother sprang from the very understandable desire
to tell her what he had done before she heard it from the police and to hear her words of
comfort. Those requests, based on all of the circumstances, did not at any time constitute
defendants invocation of his right to silence.
9. Mandatory 180 jail if driving while suspended while revoked for 2 nd DWI even if DWI
was prior to 2010. State v Carrigan 428 NJ Super. 609 (App. Div. 2012)
N.J.S.A. 2C:40-26(b), which became effective on August 1, 2011, makes it a fourth-degree
crime for a motorist to operate a vehicle at a time when his or her driver's license is
suspended or revoked for a second or subsequent conviction for driving while intoxicated
("DWI") or refusal to submit to an alcohol breath test. Defendant was charged with that crime,
upon being found driving a car in September 2011 while his license was suspended due to
multiple prior DWI offenses.
The trial court initially dismissed the complaint, concluding that the application of N.J.S.A.
2C:40-26(b) to defendant violated ex post facto principles, essentially because his ongoing
license suspensions had been imposed before the statute's effective date.
The Appellate Division reversed and concluded that a violation of N.J.S.A. 2C:40- 26(b)
comprises a new offense based upon new conduct, and that the statute does not impose
retrospective punishment for a prior offense. Hence, the law may be constitutionally applied to
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drivers with suspended licenses, such as defendant, who are caught driving after August 1,
2011, regardless of whether their DWI-based suspensions were imposed before that date.
10. Later discovery by police of parole warrant does not purge taint of unlawful
detention State v. Shaw __ NJ __ (A-48-11) 12-13-12
The police did not have a reasonable , articulable suspicion of criminal activity to justify the
investigatory detention, which was based on nothing
more than a non-particularized racial description of the person sought. The parole warrant was
not an intervening circumstance that sufficiently purged the taint from the unlawful detention.
11 Medical Examiner did not have Expertise to Testify on Movements of Car Occupants
in Fatal Accident. State v. Locascio 425 NJ Super. 474 (App. Div. 2012)
Defendant was convicted of vehicular manslaughter after a jury trial. The indictment
stemmed from a one-car accident in which defendant's boyfriend was killed after the car
veered off the road and struck a tree. The pivotal issue at trial was whether, as the State
contended, defendant was the driver or whether, as the defense and its expert contended, the
boyfriend was the driver.
The State presented expert testimony from the county medical examiner opining that
defendant was the driver. During the course of his testimony, the medical examiner rendered
opinions, over defendant's objection, about the probable movements of the occupants within
the car as it decelerated and crashed, including an analysis of how the passenger's body
allegedly "cushioned" the driver's body during the accident.
The court reversed defendant's conviction and ordered a new trial because the testimony
of the medical examiner, who the State concedes is not qualified as an expert in
biomechanics or accident reconstruction, prejudicially went beyond the scope of his expertise
on a crucial disputed issue. The examiner's testimony should have been confined to the
aspects of his expertise as a pathologist concerning the nature and causes of bodily injury,
and should not have delved into the biomechanical forces and movements within the
automobile.
12. Defendant Entitled to Adjournment to Select Own Counsel. State v. Kates 426 NJ
Super. 32 (App. Div. 2012)
The Appellate Division concluded the trial court mistakenly exercised its discretion in
denying defendant a continuance to enable him to retain counsel of his choice, after he
learned on the eve of trial that the assistant deputy public defender who had been
representing him was about to deployed for active military service. Although the right to
counsel of choice is not absolute and may be balanced against the court's interest in
managing its calendar, the trial court failed to weigh the appropriate factors governing the
discretionary decision whether to grant the requested continuance. The availability of
competent counsel not of defendant's choice was an insufficient basis for denying the
continuance. As deprivation of counsel of choice is a structural error not subject to harmless
error analysis, reversal of defendant's conviction and a new trial is mandated.
13. Police should not Issue Arrest Warrant on Bad Check. Greenberg v. NJ State Police
Trooper Prsyszlak 426 NJ Super. 591 (App. Div. 2012)
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Following a dispute between plaintiff and defendant Oil Station, Inc. (OSI), which had
performed an oil change on plaintiff's vehicle and allegedly damaged the vehicle's battery in
the process, plaintiff closed the bank account on which he had made the original payment of
$129.44 and provided OSI a check for $31.02, the amount which plaintiff felt was due. OSI
contacted the State Police, which conducted an investigation and ultimately concluded there
was probable cause to believe plaintiff violated the bad check statute, N.J.S.A. 2C:21-5.
Plaintiff was arrested in his home and held at a state police barracks until he agreed to pay
the full amount OSI claimed was due.
Plaintiff commenced this action, alleging false arrest, false imprisonment, various
constitutional violations, and other common law torts. The trial judge granted summary
judgment in favor of the State Police and the other State defendants, as well as OSI and its
representative. The court reversed, concluding that an arrest within the home was unlawful
absent an arrest warrant or exigent circumstances -- both of which were absent -- or consent,
which turned on disputed questions of fact that could not be decided at the summary judgment
stage. The court also held there were genuine questions of material fact regarding the State
defendants' claim that probable cause to arrest existed and on the defense of qualified
immunity, thereby precluding summary judgment.
In addition, the court reversed the summary judgment entered in favor of OSI and its
representative because that judgment was based on the trial judge's dismissal of the claims
against the State defendants. The court also found there was evidence to support plaintiff's
theory that OSI and its representative conspired with the State defendants to falsely arrest
and imprison plaintiff because, among other things, OSI had previously enlisted the aid of the
State Police in the collection of OSI's unpaid bills.
14. MVC should not Suspend Drivers License for Civil Out of State Pot Fine. Ritz v.
Motor Vehicle Commission 426 NJ Super. 608 (App. Div. 2012)
A violation of a South Carolina statute that imposes a "civil fine" of not more than $500
upon a person who is found in possession of drug paraphernalia does not constitute a
"conviction . . . for a drug offense in [another] state" under N.J.S.A. 39:5-30.13, which
mandates a six-month suspension of the offender's motor vehicle license, because a violation
of such a civil regulatory statute is not a "drug offense," which is defined as a violation of a law
of another state that is "substantially similar in nature to the 'Comprehensive Drug Reform Act
of 1987.'"
15. Police Cannot Search 3rd floor of Home Based on Noise Complaint. State v. Kaltner
210 NJ 114 (2012)
The decision of the Appellate Division is affirmed substantially for the reasons expressed
in Judge Parillos opinion. Because the police officers warrantless search of the home after
they were called to address a noise complaint was not objectively reasonable, the evidence
obtained during the search was properly suppressed.
The court held the test was not met where police officers, responding in the early
morning hours to a noise complaint, lawfully entered the home, but thereafter fanned out and
searched the entire residence for someone in control, while other less intrusive options were
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available and no compelling need was presented.

The Court considers whether the trial court correctly suppressed drug evidence found in a
bedroom during a warrantless search of a residence by police officers who were responding
to noise complaints.
The defense disputed the officers version of the events, arguing that the party was small,
and that the officers searched the entire house and forcibly entered the bedrooms, including
Kaltners, by kicking down locked bedroom doors. The judge found credible Officer
Camachos testimony about the size and scope of the party and the volume of noise. The
judge also found that the unidentified adult male who answered the door invited the officers at
least into the common area of the home. However, the judge suppressed the drug evidence
after concluding that the officers unlawfully extended their search beyond entry into the first
floor main living area. The judge explained that any number of methods could have been
employed by the officers to locate a resident of the premises that would not have required
invading the private areas of the home.
The Appellate Division affirmed. 420 N.J. Super. 524 (App. Div. 2011). The panel rejected
the States argument that by hosting a large party defendant had no expectation of privacy in
the home or, in the alternative, that the officers acted reasonably in their community
caretaking function to abate the noise nuisance. The panel explained that Kaltner had a
reasonable expectation of privacy despite the party, which was not open to the public,
therefore a search warrant grounded in probable cause was needed unless an exception to
the warrant requirement applied. The panel agreed with the motion judge that the police
officers initial entry into the premises in response to the noise complaint was lawful. The
question, however, was whether, after their legitimate entry, the community caretaking
exception to the warrant requirement justified the officers conduct in fanning out in search of
those in control of the premises in an attempt to abate the noise nuisance.
The panel explained that the community caretaking exception to the warrant
requirement requires a case-by-case, fact-sensitive analysis. The relevant question focuses
on the objective reasonableness of the police action under the circumstances, and requires
that the court balance the nature of the intrusion necessary to handle the perceived threat to
the community caretaking concern, the seriousness of the underlying harm to be averted, and
the relative importance of the community caretaking concern. The panel concluded that the
police action in this case was not constitutionally permitted. Although the officers entry into
the dwelling was initially justified, their subsequent action in fanning out and conducting, in
essence, a full-blown search of the home was not reasonably related in scope to the
circumstances that justified the entry in the first place, nor was it carried out in a manner
consistent with the factors supporting the entrys initial legitimacy. As explained by the motion
judge, the objective of noise abatement could have been achieved well short of the officers
full-scale search. For example, given the number of officers present and the fact that the
offending noise emanated from the crowd itself, the officers could easily have dispersed the
partiers.
After balancing the competing interests, including the important privacy interest in ones
home, the breadth and extent of the invasion of the entire premises, the limited nature of the
community caretaking concern, and the relatively low threat posed in light of the available
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less-drastic options, the panel concluded that Officer Camacho was not lawfully in the hallway
outside Kaltners bedroom when he viewed the evidence, and the plain-view doctrine did not
excuse his entry into the bedroom and seizure of the drugs.
HELD: The decision of the Appellate Division is affirmed substantially for the reasons
expressed in Judge Parrillos opinion. Because the police officers warrantless search of the
home after they were called to address a noise complaint was not objectively reasonable, the
evidence obtained during the search was properly suppressed.
The judgment of the Appellate Division is AFFIRMED.
16 Defendants silence at DWI stop cant be used against him at trial State v. Stas 212
NJ 37 (2012)
The use of defendants silence as substantive evidence of his guilt and for the purpose
of assessing his credibility violated his federal constitutional privilege against selfincrimination, and his state statutory and common law privilege against self- incrimination.
Given the prominent role that defendants silence played in his conviction, the error was
clearly capable of producing an unjust result and warrants a new trial. R. 2:10-2.
17. Judge is Reprimanded for Helping Prosecutor in DWI Trial. In the Matter of Gregory
R. McCloskey, Judge Docket ACJC 2010-283 SUPREME COURT 069952 2012
A municipal judge who fed questions to the prosecutor during an ex parte chat in a
drunken-driving case was publicly reprimanded on Feb. 24. The state Supreme Court agreed
with the Advisory Committee on Judicial Conduct that Gregory McCloskey undermined
confidence in the bench's independence and impartiality by showing a preference for the
prosecution and should have disqualified himself. According to the ACJC presentment,
McCloskey "directed" the prosecutor outside the presence of defense counsel to ask
two questions of a witness that were "specifically central to the State's case and specifically
critical to the defense theory.
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VercammenLaw@Njlaws.com
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817

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