The NJ Police Chief Magazine Volume 26, Number 6 | Page 28

The New Jersey Police Chief Magazine | January 2020
Top Municipal Court Cases and Laws 2019
Kenneth Vercammen, Esq. Edison, NJ
1. Police false promise of no jail and leniency required suppression of Confession State v. L.H. (A-59-17) July 22,
2019 ALBIN, J., writing for the Court.
HELD: The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant’s statement
was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado
requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other
remedy deemed appropriate by the trial court.
Due process requires that the State prove beyond a reasonable doubt that a defendant’s confession was voluntary and was not
made because the defendant’s will was overborne. A confession which is the product of physical or psychological coercion must be
considered to be involuntary and is inadmissible in evidence regardless of its truth or falsity. The voluntariness determination
weighs the coercive psychological pressures brought to bear on an individual to speak against his power to resist confessing.
Relevant factors include the suspect’s age, education and intelligence, advice concerning constitutional rights, length of detention,
whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were
involved, as well as previous encounters with law enforcement. The ultimate determination of voluntariness depends on the
totality of the circumstances.
Because a suspect will have a natural reluctance to furnish details implicating himself, an interrogating officer may attempt to
dissipate this reluctance and may even tell some lies during an interrogation. Certain lies, however, may have the capacity to
overbear a suspect’s will and to render a confession involuntary. Thus, a police officer cannot directly or by implication tell a
suspect that his statements will not be used against him because to do so is in clear contravention of the Miranda warnings. Other
impermissible lies are false promises of leniency that, under the totality of circumstances, have the capacity to overbear a
suspect’s will. A court may conclude that a defendant’s confession was involuntary if interrogating officers extended a promise so
enticing as to induce that confession.
The video-recorded interrogation here reveals that the detectives made (1) representations that directly conflicted with the
Miranda warnings, (2) promises of leniency by offering counseling as a substitute for jail, and (3) statements that minimized the
seriousness of the crimes under investigation -- all relevant factors under the totality- of-the-circumstances test. In the totality of
the circumstances, given the combination of all the relevant evidence and factors, the State failed to show beyond a reasonable
doubt that the interrogators’ representations to defendant did not overbear his will and induce him to confess. The detectives
secured an involuntary confession. Because defendant preserved his right to appeal the denial of his motion to suppress the
confession, defendant’s guilty plea must be vacated.
2. The Supreme Court on November 18 remanded State v Olenowski to a Special Master for a Frye Hearing on the
reliability and admissibility of Drug Recognition Evaluation evidence in a DWI under influence of a drug. (Judge Lisa
who did Cassidy remand)
Sometimes a driver is arrested and charged with a DWI not for alcohol but being under the influence of drugs- either illegal or
driving under valid prescription but being under the influence of the prescription.
Drug recognition evaluators /alleged expert (DRE) opinions based on drug influence evaluations (DIEs) are not generally accepted
within the scientific community under Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923).
Fellow speaker and NJSBA member John Menzel argued the matter before the court, urging the Supreme court to exclude the DIE
evidence in the case and remand the matter for the development of an appropriate foundation before the evidence can be
admitted. The brief was written by Menzel, Joshua H. Reinitz, and NJSBA past president Miles S. Winder III.
The Supreme court focused on the question of why a special master should not be appointed to review whether DIEs meet the
standards for admissibility, noting competing studies and scholarly writings on the issue, the credibility of which the court cannot
evaluate without further hearings.
The case arises from Olenowski’s convictions for driving while intoxicated, which occurred on two separate occasions in the same
year. He drew a reading of .04 percent blood alcohol content the first time and a zero percent reading the second, but was visibly
impaired, according to the officers who arrested him and the DREs who evaluated him. The trial court upheld the convictions,
holding that DRE evidence was “generally acceptable and reliable in the scientific community.” The decision was upheld by the
Appellate Division in an unpublished opinion.
In its brief, the NJSBA argued that neither the DIE technique nor the DRE opinion are generally accepted in the scientific
community or sufficiently reliable to indicate that Olenowski was driving under the influence. “The NJSBA asks this court to declare
the DIE technique and DRE opinion derived therefrom inadmissible for any purpose unless its proponent, the state, lays
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