Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
2053 Woodbridge Avenue - Edison, NJ 08817
http://www.njlaws.com/

Monday, July 3, 2017

Consent searches that are coerced are not effective to surrender a constitutional right.

Consent searches that are  coerced are not effective to surrender a constitutional right.
a. Consent sufficient to waive a constitutional right must both be “‘the product of an essentially free and un- constrained choice by its maker’” (Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)) and be revocable. Neither of those conditions is satisfied here.
In these circumstances, someone who will be denied the ability to drive unless he or she agrees in advance to submit to a chemical search can hardly be said to have “‘freely and voluntarily’” consented to such a search. Schneckloth, 412 U.S. at 222 (citation omitted).
…..
Consent searches trigger application of the unconstitutional conditions doctrine, which “vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.” Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2594 (2013); see id. at 2596
States have available a wide range of other tools, including expedited warrant procedures and numerous mechanisms to keep impaired drivers from getting behind the wheel in the first place, that are more effective.
Thus, the Court’s decisions consistently “have determined that ‘[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, reasonableness generally requires the obtaining of a judicial warrant.’” Riley v. California, 134 S. Ct. 2473, 2482 (2014) (ellipses omitted) (quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)). “Such a warrant ensures that the inferences to support a search are ‘drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’” Ibid. (quoting Johnson v. United States, 333 U.S. 10, 14 (1948))
It is of course true that a person may consent to a search for which a warrant otherwise would be required. This “‘jealously and carefully drawn’ exception [to the warrant requirement] recognizes the validity of searches [undertaken] with the voluntary consent of an individual possessing authority” to give it. Georgia v. Randolph, 547 U.S. 103, 109 (2006) (citations omitted). This Court’s cases teach, however, that a valid consent must be “the product of an essentially free and unconstrained choice.” Schneckloth v. Bustamonte, 412 U.S. 214, 218, 225 (1973) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). That standard is not satisfied here.

Since McNeely, States have continued to expand their use of electronic warrants, a trend we can expect to continue. See, e.g., Fla. Stat. Ann. § 933.07 (West 2015) (allowing use of electronic warrants); Notice to the Bar, New Jersey Supreme Court (Nov. 14, 2013), perma.cc/B5BY-QF84 (authorizing the expanded use of electronic and remote “warrants for nonconsensual blood testing in all driving while intoxicated (DWI) cases where no indictable charge is anticipated”). For example, Arizona has achieved success in combating drunk driving through its pioneering use of electronic warrants, which can take fewer than fifteen minutes to process. Diana Hegyl, iCISng eSearch Warrant Application, Jud. Branch News 6 (Mar. 2013), perma.cc/BR6L-EB3S. In 2012 alone, Maricopa County Courts processed 10,510 electronic search warrants for the city of Phoenix. Although Arizona requires a warrant to compel a blood or breath BAC test (see State v. Butler, 302 P.3d 609, 613 (2013)) and does not have a criminal compelled-consent law, that State has a lower reported incidence of drunk driving than the national average. Drunk Driving US Map, Ctrs. for Disease Control & Prevention (Jan. 21, 2015), perma.cc/P5KM-J2ZZ.

Criminal Law Committee ABA Solo Div Report Summer 2017

Criminal Law Committee ABA Solo Div Report Summer 2017 COUNCIL AGENDA REPORT FORM
Division Name and Number:  Practice Specialty Division: 3

Division Director Name: Kari Petrasek

Reporting Board or Committee: Criminal Law Committee

Completed By: Kenneth Vercammen Co-Chair, Edison, NJ  

1. What has your board or committee done since its last report (e.g., conference call, meetings, use of discussion lists, planning for CLE programs, publications and articles, collaboration with other boards, committees, or sections)?
-Requested meeting at New York Annual meeting
-Started work on new ABA book Handling DUI and Drug Possession Defense for Attorneys
--Meet with Shannon Lessman of ABA Publications in Chicago on March 13 to discuss chapters for DUI and Drug defense
-Sent Request to Dee Lee and Dave. L for Brown Bag webinar
-Continue to Publicize ABA “Criminal Forms Book to help generate revenue for Division
-Added info to GP Solo Linkedin
- Invited members to submit articles to GP Solo EReport
- Offered forms for free to members from NJ Bar Annual seminar “Handling Drug, DWI and Serious Cases seminar
--Also helped publicize ABA book ABA’s “Smart Marketing for Smart Firm Lawyers” a book from the American Bar Association. My staff implemented many of the ideas to improve our law office. 
Smart Marketing and the Small Firm Lawyer                                                                              
List Price: $59.95                                                                                                                          
Sponsor(s): Solo, Small Firm and General Practice Division Publisher(s): ABA Book Publishing ISBN: 978-1-62722-484-0 Product Code: 5150468 2014, 156 Pages, 7 x 10


2. What is the status of your board or committee’s business plan for the year (e.g., participation of board or committee members, goals achieved, and new goals)?
- Attend August 11 Yankees Game at ABA NY Annual Meeting
-Continue to help promote ABA books to raise revenue for section
-Offer to GP Solo members free portions of articles/ forms from NJ Bar Annual Drug DWI seminar
-Invite Chair elect the legendary Steve Williams and Division members to free NJ Bar Summer Happy Hour at the NJ Shore on July 15
- Hope to submit articles to Solo EReport
-Sent draft of proposed DUI book to

Does your board or committee need any assistance from the Director, Staff, Division Officers, or Council? If yes, please explain:
  Help promote the ABAS’ CRIMINAL LAW FORMS book
Book from the American Bar Association
Solo & Small Firm Division Author: Kenneth Vercammen
  Criminal Law Forms helps lawyers face the challenges of:
     Criminal defense
     DWI cases
     Juvenile offenses
     Domestic violence
     Traffic violations
     Auto Accidents
     and much more

-Also helped publicize ABA book ABA’s “Smart Marketing for Smart Firm Lawyers” a book from the American Bar Association. My staff implemented many of the ideas to improve our law office. 
Smart Marketing and the Small Firm Lawyer                                                                              
List Price: $59.95                                                                                                                          
Sponsor(s): Solo, Small Firm and General Practice Division Publisher(s): ABA Book Publishing    


ACTION ITEMS
List any action items to be presented to Council. These are items that require discussion, reporting, and/or decision-making on the part of the Council (e.g. a request for support of matters appearing before the House of Delegates, revisions of Division policies, and requests for use of extraordinary Division resources).

INFORMATIONAL ITEMS

List any informational items to be represented to Council. These items are matters for the Council’s information and do not require action.