valid under the circumstances and that the police
exercised proper discretion as to the time, place and
duration of the procedure. In basing its decision
exclusively on state constitutional grounds, the Kirk
court referred to the United States Supreme Court’s
invitation to the states to develop acceptable alternatives
to the constitutionally infirm random stops condemned
in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391
(1979). See State v. Reynolds, 319 N.J. Super. 426 (App.
Div.1998).
Thus in State v. Woodson, 236 N.J. Super. 537 (App.
Div. 1989), the Court suppressed evidence of marijuana
and other unspecified controlled dangerous substances,
as well as evidence of an open beer can, a motor vehicle
violation, because the evidence was discovered by means
of opening the passenger-side door of defendant’s car
without permission. The Court rejected the State’s
argument that the controlling case was Pennsylvania v.
Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977), in which
the Court held that it was permissible for the police to
order drivers out of their vehicles after being stopped for
a traffic violation. The Woodson Court also determined
that the plain view exception to the search warrant
requirement, Coolidge v. New Hampshire, 403 U.S. 443,
92 S.Ct. 26 (1971), was inapplicable in the
circumstances, since opening the door of defendant’s
vehicle was an “exploratory investigation which
constituted a search” (quoting State v. Griffin, 84 N.J.
Super. 508 (App. Div. 1964)).
On the other hand, a state trooper’s detection of
burnt marijuana emanating from the passenger
compartment of a vehicle lawfully stopped for speeding,
which led to the discovery of marijuana residue in the
clothing of both of the occupants of the vehicle, as well as
in the vehicle itself, and to the arrest of the two occupants,
was upheld in State v. Judge, 275 N.J. Super. 194 (App.
Div. 1994), since there was probable cause to support a
search, and, in any case, the search of the vehicle was
justified under the automobile exception. See State v.
Alston, 88 N.J. 211 (1981).
IV. OTHER CRIMINAL PROCEDURAL
RIGHTS
Periodically, New Jersey courts have used an
independent state constitutional ground to expand
criminal defendants’ other rights beyond those
guaranteed by the federal constitution, although this
course has been the exception rather than the rule. In
State v. Bellucci, 81 N.J. 531 (1980), the court found that
an attorney’s representation of a defendant at a trial in
which his law partner represented a codefendant violated
the defendant’s right to effective assistance of counsel
under Art. I, ¶ 10 of the state constitution.Although defendants may waive a right to
independent counsel, after being fully advised of the
potential risks involved, a strong presumption exists
against waiver of fundamental constitutional rights.The Supreme Court also has held that an order
prohibiting a defendant during an overnight recess from
discussing his own testimony with his attorney violated
defendant’s right to assistance of counsel under the state
and federal constitutions. State v. Fusco, 93 N.J. 578
(1983).In State v. Gilmore, 103 N.J. 508 (1985), the Court
held that exclusion of jurors based on group association,
e.g., race, rather than particular individual biases,
violated a defendant’s right to a jury trial by a fair and
impartial jury, drawn from a representative cross-section
of the community, by discriminating against potential
jurors based on race, national origin, or other improper
determination.The state constitutional mandate, independent of
the Sixth Amendment, cannot be undermined by the
right to peremptory challenges in criminal cases,
authorized by N.J.S.A. 2B:23-13b, c, and R.1:8-3d,
because the latter right does not spring from
constitutional origins. While the State has wide
discretion to exercise peremptory challenges, it cannot
systematically or intentionally exclude prospective petit
jurors on the basis of race, so as to destroy the
representative cross-section of a jury.The state constitution, unlike the Fifth Amendment
and other state constitutions, does not expressly establish
a privilege against self-incrimination. However, the
privilege has historically been an integral part of the
state’s common law and is embodied in N.J.R.E. 501,
502 and 503.The state Supreme Court has barred impeachment of
a defendant’s exculpatory statement at trial by reference
to the defendant’s refusal to answer when questioned by
police. State v. Deatore, 70 N.J. 100 (1976). The court
held that the common law privilege against self-
incrimination included an accused’s right to remain
silent when in police custody or under interrogation. Id.