Since last Friday, one week ago, the Appellate Division issued three published opinions (not counting its opinion in the Verizon case that the Supreme Court decided yesterday, in which the Court affirmed on the basis of the Appellate Division’s 2023 opinion below, an opinion that was approved for publication yesterday as well, all as discussed here). Here are summaries:
State v. Boone, ___ N.J. Super. ___ (App. Div. 2024). Judge Accurso wrote the opinion in this case. Defendant had pled guilty to third-degree possession of a controlled dangerous substance after his effort to suppress evidence seized in a stop of his vehicle. On his appeal of the suppression issue, the Appellate Division reversed. The panel held that the detective whose testimony was central to the suppression issue “was not sufficient to establish he possessed a reasonable and articulable suspicion to stop defendant’s vehicle for failing to maintain a lane, in violation of N.J.S.A. 39:4-88(b).”
State v. Morgan, ___ N.J. Super. ___ (App. Div. 2024). This case was before the Appellate Division on leave to appeal. That was because the matter presented what Judge Smith described at the outset of his opinion as “a question of first impression regarding when the State may be compelled to provide field and health reports of narcotics detection canines in accordance with the Supreme Court’s holding in Florida v. Harris, 568 U.S. 237 (2013).” The Law Division denied defendant discovery of records relating to a narcotic detection dog named “Jocko.” On leave to appeal, the panel “conclude[d] that such records are not per se irrelevant to reliability and probable cause determinations and therefore, the court should have first heard the State’s motion challenging the [defense’s] expert before denying defendant’s motion for discovery.” The decision below was reversed and the case was remanded for further proceedings.
Cerkez v. Gloucester City, ___ N.J. Super. ___ (App. Div. 2024). This matter involved two essentially identical putative class actions against municipalities. The issue in both, as summarized by Judge Susswein, the author of this opinion, was “whether defendant municipalities, Gloucester City and Borough of Brooklawn, have an implied contractual (seller-consumer) relationship with the plaintiff residents to whom they distribute metered potable water. The answer to that question, in turn, determines whether plaintiffs may sue defendants under a breach-of-contract theory on the grounds that the water distributed to them contains a high level of contaminants.” The “thoughtful opinions” of the two Law Division judges reached conflicting results. After tracing the evolution of the law from cases dating back to the nineteenth century on which plaintiffs relied through today, the panel (applying de novo review) ruled that “towns distributing running water to homes and businesses are performing a governmental service. They are not tantamount to private companies that sell water for profit.” The result was that, “as a matter of law, charging a fee to defray the costs for providing this governmental service does not automatically create an implied contract between municipalities and residents,” so that plaintiffs could not sue on theories of contract or promissory estoppel.