SAYREVILLE — An appeals court judge has ruled in favor of a man who called police on himself two years ago to turn himself in for marijuana possession.
The Appellate Division of the New Jersey Superior Court dropped the possession charges on Feb. 22 on the grounds that selfincriminators who voluntarily turn a controlled dangerous substance (CDS) over to police have immunity from possession charges.
Daniel A. Novak called the Sayreville police in January 2008 to report that occupants of a car in an apartment complex were smoking marijuana. When Officer Matthew Kurtz arrived, Novak reportedly raised his hands over his head and informed the officer that it was he who called the police and that he had marijuana in his possession. The defendant reportedly showed the officer green leafy vegetation, later confirmed to be marijuana. The officer seized the substance and charged Novak with possession.
Novak reportedly told Kurtz at the time that he felt marijuana should not be prohibited by law and hoped the arrest would spur a movement to legalize the drug, according to Kurtz’s testimony.
Novak filed a motion in 2008 to suppress the marijuana charge, noting that the seizure violated his “federal and state constitutional rights relating to self-incrimination,” but a municipal judge denied his motion. Novak pleaded guilty to a violation of a municipal court ordinance and then appealed the denial of his motion to the state Superior Court.
Two years after Novak placed the self-incriminating call to authorities, the Superior Court reversed the possession charge on the grounds that Novak voluntarily delivered the substance to police. The defendant, represented by Allan Marain of the Allan Marain Law Office in New Brunswick, based his defense on the New Jersey Supreme Court’s opinion in State v. Patton, 1993.
“He wanted to challenge the constitutionality of marijuana laws in general,” Marain said of his client. “I told him that approach would fail and that I would not represent him [if he insisted on using that defense].”
Marain instead chose to defend his client using the Patton case, which gives transactional immunity with respect to the possession charge to any person who voluntarily delivers CDS to authorities. The surrender must be without capitulation by law enforcement officials.
“[The defense] was all that was available, but at the same time I thought that it was novel and likely to succeed,” Marain said. “This is a very unusual fact pattern where someone calls the police on themselves.”
Due to the fact that Novak called the police on himself and voluntarily showed the substance to authorities, it was ruled that he did indeed voluntarily surrender the CDS, and the charges were dropped.