NEW JERSEY SUPREME COURT

CLICK TO READ State of New Jersey v. Michael Olenowski, Docket # A-56-18

In this case, the Court considered whether Drug Recognition Expert (DRE) testimony is reliable and admissible under the standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court held that Daubert-based expert reliability determinations in criminal appeals will be reviewed de novo, while other expert admissibility issues are reviewed under an abuse of discretion standard.  Here, the extensive record substantiates that DRE testimony sufficiently satisfies the Daubert criteria to be admissible, with the following four limitations and safeguards: 

1. The DRE may opine only that the evaluation is “consistent with” the driver’s ingestion or usage of drugs, not that it was actually caused by drugs.
2. If the State fails to make a reasonable attempt to obtain a toxicology report without a persuasive justification, the DRE testimony must be excluded.
3. The defense must be afforded a fair opportunity to impeach the DRE.
4. Model instructions to guide juries about DRE evidence should be considered.

A positive DRE opinion at Step 11 is not dispositive of a driver’s guilt of driving under the influence of drugs.  Unlike a BAC reading of .08% or more in a drunk driving case, the DRE’s opinion is not used as a per se test of guilt.  Instead, the DRE testimony is just one part of the evidence as a whole, and it can be amplified or rebutted.  The State would have a much steeper burden to prove a driver’s guilt when it lacks corroborating proof from a toxicology report.

NEW JERSEY APPELLATE DIVISION

CLICK TO READ State of New Jersey v. William J. Silvers, Docket # A-2353-21

The main issue in this criminal appeal is whether the trial judge erred during jury selection in denying defense counsel’s requests to remove for cause two potential jurors who are police officers.  The officers are employed by police departments in different municipalities from where the alleged offenses occurred, investigated, and were prosecuted, but within the same county.

The court rejects defendant’s contention that because interaction with the county prosecutor’s office is inherently a “necessary component of their jobs as police officers,” active-duty police officers who work in the same county where the criminal charges arose must be stricken for cause from juries upon a defendant’s request.  Instead of applying a categorical bar, the court continues the tradition of State v. Reynolds, 124 N.J. 559, 565 (1991), in which the Supreme Court recognized the concerns about the potential bias of police-officer-jurors, but which also declined to endorse a strict policy to remove them for cause.  The Court in Reynolds instructed judges “should be inclined to excuse a member of the law enforcement community” from the jury on a defendant’s request, leaving it to the trial courts to perform an individualized assessment of each juror’s ability to be fair and impartial.  Ibid.

Extending the nuanced approach of Reynolds, the Court holds that a per se finding of cause to strike a criminal juror in law enforcement should only apply to employees of the same police department or prosecutor’s office that investigated or prosecuted the charged offense.  To aid trial judges and counsel, the court presents non-exhaustive factors that should be considered in evaluating, on a juror-by-juror and case-by-case basis, whether there is cause to remove a juror employed in law enforcement.  If, on the whole, those factors establish cause, the trial court “shall” remove the juror, as is required under the recently reinforced language of Rule 1:8-3(b).

Applying these principles, the court affirms the trial judge’s denial of defendant’s request to strike for cause one of the two police officers, but finds error with respect to the other officer, based on the officers’ respective voir dire responses.  However, the latter officer was never summoned to the jury box, so the error in failing to remove the juror for cause was harmless.

The unpublished portion of this opinion rejects unrelated arguments raised by defendant alleging evidentiary and sentencing errors.

CLICK TO READ State of New Jersey v. Eladio Echartevera, Docket # A-2484-21

Police were conducting surveillance on a location where they believed drugs were bought and sold.  They started watching a woman who was a known drug user, pacing back and forth while talking on a cell phone, leading police to believe she was waiting to make a purchase.  A U-Haul van with Arizona license plates arrived and parked in a no parking zone, and the driver honked the horn and motioned for the woman to approach the van.  Police then approached the van, showed their shields and identified themselves to the driver.  Defendant, the driver, started to adjust his waistband, and he was ordered out of the vehicle.  The police ordered him to the rear to conduct a frisk.  During the pat-down, Defendant “swiped” the police officer’s hand away as it came near defendant’s waistline in an apparent effort to prevent him from continuing the pat-down. The officer testified that based on his experience, defendant’s actions indicated there was “potentially something there that [he didn’t] want me to find, or feel, or locate” which could “be anything from a weapon to narcotics.” The officer also acknowledged that Defendant could have been concerned the officer was intruding on a “very personal zone” of his body during the pat-down.

The officer felt a bulge, felt it was plastic, and heard the sound of rustling plastic on the object in the Defendant’s waistband.  The officer admitted that he knew it was not a gun, but did not know what the object was when he removed it.  The object contained 133 bags of heroin, and Defendant was arrested.  He moved to suppress after being charged, and the trial court denied suppression.

The Appellate Division reversed, finding that a protective frisk is authorized only to reveal weapons, not drugs.  Here, the frisk exceeded the scope of a permissible frisk.  The officer’s testimony did not establish an objectively reasonable basis to conclude the object he felt in Defendant’s waistband was a weapon, as distinct from a controlled substance.

Reversed, suppression granted, Indictment dismissed.

CLICK TO READ State of New Jersey v. Zakeem D. Brown, Docket # A-2125-21

Defendant was 17 years old when following a robbery and a murder, Defendant and his mother were brought to the police station, where detectives first spoke privately with the mother.  They informed her that “because he’s a juvenile, we want to – we need your permission to speak with him.”  The mother agreed, and then accompanied the detectives into the interrogation room where Defendant was Mirandized.  Defendant first denied being near the robbery, and then police accused him of lying.  The mother then stepped out of the interrogation room because she felt Defendant did not want to hurt her.  Police then told Defendant that his mother was hurting, and that he was going to tell them the truth, and that “you owe her that.”  Defendant then gave a series of incriminating statements. 

Defendant was charged by indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1); first-degree robbery, N.J.S.A. 2C:15-1(a)(1); first-degree felony murder, N.J.S.A 2C:11-3(a)(3); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1).  The court denied suppression after a hearing. 

The Appellate Division reversed and suppressed, finding that the State failed to meet its heavy burden of proving beyond a reasonable doubt that Defendant knowingly and voluntarily waived his Miranda rights. 

The standard for establishing a valid waiver of Miranda rights is heightened when juveniles are subjected to custodial interrogation.  Police should then “give parents or guardians a meaningful opportunity to consult with the juvenile in private about those rights.” If law enforcement officers do not allow a parent and juvenile to consult in private, absent a compelling reason, that fact should weigh heavily in the totality of the circumstances to determine whether the juvenile’s waiver and statements were voluntary.”

Here, the police admonition to the mother to “contain yourself” and “let us talk to him” improperly encroached upon her role as a buffer by limiting her participation, suggesting she should be a mere spectator and refrain from interrupting police questioning.  The Court held that the detectives essentially asked her to be more passive during the interrogation without clearly explaining that she was under no obligation to “let [the officers] do the interview.” Indeed, they failed to convey that in her role as a buffer and advisor, she had the right throughout the interrogation to protect her son from the questions posed to him.  The Court was also concerned that the detectives did not provide an opportunity for mother and son to discuss privately whether to waive Miranda

The cumulative effect of the police tactics regarding the parent’s participation in the interrogation creates a reasonable doubt as to the voluntariness of Defendant’s incriminating statements.

The Appellate Division reversed and granted suppression.  The Court concluded that the

CLICK TO READ State of New Jersey v. L.F.S., Docket # A-3848-21

Defendant was indicted for Aggravated Assault, N.J.S.A. 2C:12-1(b)(1). The trial court granted Defendant’s motion to dismiss the indictment. At the time of dismissal, the trial court entered an order of expungement directing the Middlesex County Prosecutor’s Office and any related agencies to remove all information from any of Defendant’s records concerning the aggravated assault charge.  A year later the State moved for an order seeking to vacate the expungement order and granting the State permission to access its file for further investigation in support of filing a new indictment against Defendant.  On the same date, an email chain was created that included assistant prosecutors, the Office of the Public Defender, court staff, and the trial judge for the purpose of discussing the State’s motion. At no point during those communications was Defendant given the opportunity to file a brief, and a court date to hear the motion was never scheduled.   On July 8, 2022, the trial judge entered an order amending the expungement order “to reflect that the State is allowed to access and utilize their prosecutor file to support the filing of a new indictment should they choose to revive the prosecution of this case.”

The Appellate Division held that because Defendant was never given a hearing or an opportunity to file opposition, his Due Process rights were violated.  The case was remanded to allow Defendant to be heard.

CLICK TO READ State of New Jersey v. Lucia Manzano, Docket # A-1017-22

The State appeals from an order dismissing its prosecution of defendant Lucia Manzano on contempt and resisting arrest disorderly persons offenses based on a finding defendant’s actions constituted de minimis infractions under N.J.S.A. 2C:2-11.

Defendant was issued a Temporary Restraining Order directing her to stay away from a person she assaulted.  Within an hour of the issuance of the TRO, at 3:56 a.m., the plaintiff reported to the police defendant had violated the TRO during the short time following her release from custody by “calling him about seventeen times and texting him.”  He also reported that Defendant was at his residence.  Police responded but did not find her there.  The Plaintiff called police again when she returned, and this time police found her sitting in a car in the parking lot of the apartment complex.  They ordered her out of the vehicle and she refused several commands.  Once she exited the car she resisted arrest.  She was charged and released.

Defendant moved to dismiss the charges as de minimis infractions under N.J.S.A. 2C:2-11. At the hearing on the motion, defendant offered a different version of the events leading to her arrest that was apparently, at least in part, supported by the court’s review of the officers’ body-cam recordings of defendant’s arrest.  The recordings were not admitted in evidence or made part of the record.

The court determined “the underlying facts” support dismissal of the charges as de minimis infractions under N.J.S.A. 2C:2-11(b) and (c). The court concluded “there is no evidence defendant actually caused or threatened the harm or evil sought to be prevented by the law in defining the offense[s,] and the actions were too trivial to warrant condemnation or conviction.” See N.J.S.A. 2C:2-11(b). The court also granted defendant’s motion based on a separate finding “the case presents extenuating circumstances that cannot be reasonably regarded as [envisaged] by the Legislature.”  The State appealed.

The Appellate Division reversed and reinstated the charges.  The Appellate Division held the trial court abused its discretion because it did not apply the correct legal standard – it did not accept the State’s allegations as true.  The case was remanded for further proceedings.