Ken Vercammen's NJ Laws email newsletter September 25, 2005 #195 In this issue: 1. Police not permitted to use thermal scan for marijuana plant search. 2. Dog sniffing does not violate 4th Amendment. 3. In juvenile case, prosecution must provide reasons to waive to adult court. 4. New articles added to website- Settlements of Minor's Personal Injury Cases; Proof of operation of a motor vehicle in a DWI case _________________________________ 1. Police not permitted to use thermal scan for marijuana plant search. State v. Domicz 377 NJ Super. 515 (App. Div. 2005). The trial court denied defendant's motion to suppress, finding that defendant freely and voluntarily consented to a search of his home that revealed numerous marijuana plants in violation of N.J.S.A. 2C:35-4. On appeal, the court reversed, concluding that the warrantless search and seizure of a power company's records regarding the amount of electricity used in defendant's home violated Article I, paragraph 7 of the state constitution. The court remanded for further proceedings regarding the defendant's motion to suppress because the trial judge failed to consider the significance of these unlawful searches on the later alleged consent search, how they impacted on the credibility of the police version of the alleged consent search, and whether the alleged consent search was "fruit of the poisonous tree" of the prior unlawful searches. As another matter of first impression, the court ruled that the trial court judge erroneously excluded expert testimony regarding the results of a polygraph test taken by the defendant. Since the determination to suppress evidence was to be made by the trial judge, and not a jury, the Supreme Court's prohibition in State v. McDavitt, 62 N.J. 36 (1972), on the use of polygraph evidence in the absence of a stipulation by the parties, does not apply. Lastly, because the trial judge made credibility findings that must be revisited on remand, the court directed that a different judge be assigned to the matter. 2. Dog sniffing does not violate 4th Amendment. Illinois v. Caballes 125 S.Ct. 834 (U.S. Supreme Court 2005). After an Illinois state trooper stopped respondent for speeding and radioed in, a second trooper, overhearing the transmission, drove to the scene with his narcotics-detection dog and walked the dog around respondent's car while the first trooper wrote respondent a warning ticket. When the dog alerted at respondent's trunk, the officers searched the trunk, found marijuana, and arrested respondent. At respondent's drug trial, the court denied his motion to suppress the seized evidence, holding, inter alia, that the dog's alerting provided sufficient probable cause to conduct the search. Respondent was convicted, but the Illinois Supreme Court reversed, finding that because there were no specific and articulable facts to suggest drug activity, use of the dog unjustifiably enlarged a routine traffic stop into a drug investigation. Held: A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has the right to possess does not violate the Fourth Amendment. Source: 179 NJLJ 826 3. In juvenile case, prosecution must provide reasons to waive to adult court. State v. J.M. 182 NJ 402 (2005). Rule 5:22-2 is modified to expressly permit a juvenile to present evidence at the probable-cause hearing. The court also holds that pursuant to N.J.S.A. 2A: 4A-26a and the Attorney General's Juvenile Waiver Guidelines, the prosecutor's failure to provide a statement of reasons for seeking waiver requires a remand. __________________________________ 4. New articles added to website Settlements of Minor's Personal Injury Cases http://www.njlaws.com/Settlements-of-Minor's-Personal-Injury-Cases.htm Proof of operation of a motor vehicle in a DWI case http://www.njlaws.com/ProofofvehicleDWIcase.htm Motor vehicle terms defined http://www.njlaws.com/motorvehicleterms.htm Same-Sex Couples Estate Planning http://www.njlaws.com/Same-SexCouplesEstatePlanning.htm photo- Summer 2005 Law Clerks http://www.njlaws.com/summer_2004_law_clerks.htm photo- 2005 Metuchen Memorial Day Parade: Rear Admiral Timothy Beard III; Command Sergeant Major Ernest Stoukas, Commander Amvets Post #3;Brigadier General Kenneth Wondrack, retired State Police Troop Commander [Photo by Ken Vercammen] http://www.njlaws.com/GeneralWondrack.htm ___________________ Living Wills- Persons already having Living Wills/ Advance Directives should be sure these documents comply with the HIPAA law. Any Living Will made more than one year ago is not likely to contain those provisions since HIPAA did not become effective until then. ______________________ Read Home News Tribune article "Many runners enjoy a diversionary triathlon" Online featuring Ken V and others training for the Ironman Triathlon/ To view this article on the Home News Tribune's Web site, go to: http://www.thnt.com/apps/pbcs.dll/article?AID=2005508180324 __________________________________________ Thank you for reading our newsletter! God Bless America USA #1 Kenneth Vercammen, Esq. 2053 Woodbridge Ave. Edison, NJ 08817 PHONE 732-572-0500 (Fax) 732-572-0030 website: www.njlaws.com "Celebrating 20 years of providing excellent service to clients 1985-2005" This newsletter is produced to be sent electronically. If you know someone who would also like to receive this email newsletter, please have them email us at newsletter@njlaws.com. Free T- shirts and car coffee holders to all current and past clients. 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