Sayreville man puts pot arrest to the test and wins
By KEN SERRANO
STAFF WRITER
Two years ago, Daniel A. Novak called Sayreville police and reported that someone was smoking marijuana in a car parked outside a garden apartment complex in the borough.
When Officer Matthew Kurtz arrived, Novak in effect turned himself in. Although he had not been smoking the drug, he showed Kurtz a marijuana cigarette in his pocket, according to a court ruling yesterday.
Novak, now 20, eventually pleaded guilty to an ordinance violation as part of a plea deal.
But Novak challenged the legality of the search.
And yesterday he won his case.
A state appeals court threw out his conviction and overturned a lower court ruling that denied his motion to suppress the evidence that Kurtz turned up when he shone his flashlight into Novak's pocket.
The seizure violated Novak's right against self-incrimination, the three-judge panel ruled. When Kurtz arrived at the complex on Jan. 15, 2008, Novak "made some comments about how he felt that searches are unconstitutional and that he feels marijuana should not be prohibited through the United States Constitution," according to the ruling.
Getting arrested, Novak told Kurtz, might spur "change to get marijuana legalized."
On Monday, Novak said he did not make the call to police on a whim.
"It wasn't an all-out-crazy-I'm-going-to-jail-today type of thing,'' he said. "It was a civil disobedience thing, a protest against our ridiculous marijuana laws. The government shouldn't be able to tell you what not to put in your body.''
After his arrest in Sayreville, he spent a few hours in a borough holding cell.
Of Kurtz, Novak said, "I think he thought I was a little nuts.''
His protest is purely political, he said.
"I don't smoke weed, I don't do any drugs,'' he said.
Novak was preparing Monday to defend himself against a string of traffic tickets in Perth Amboy, moving for a dismissal because of an alleged violation of a court rule.
The Sayreville man, who has a high school equivalency diploma, does not aspire to be an attorney. He is a self-employed Internet marketer, he said.
A 17-year-old court case afforded Novak the escape hatch. Under a ruling in State v. Patton, (133 N.J. 389, 395-402 (1993)), anyone who voluntarily delivers drugs to police under the specific requirements of the law is granted immunity against prosecution.
Novak's attorney, Allan Marain of New Brunswick, said the case is obscure, but he underscored it in his papers to the municipal court and Superior Court, which both ignored the ruling.
"It took two years, but I'm glad the court finally came around,'' he said.
Novak's defense was based on the Fifth Amendment, not the Fourth Amendment, he said. The Fourth Amendment prohibits illegal searches and seizures, while the Fifth secures due process and protects against self-incrimination.
Robert Blanda Sr., the Sayreville attorney arguing for the state, said he has not yet seen the opinion.
"It wasn't something the state pursued wrongly,'' Blanda said. "We had two (lower court) judges agree with us.''
