New Jersey Criminal Defense Attorney Blog

Covering New Jersey and Federal Criminal Law and Procedure

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The United States Supreme Court decided Carpenter vs. United States on June 22, 2018.  This is a major Fourth Amendment decision which requires law enforcement to obtain a warrant to get cell phone service provider records that can show a user’s movements.

The broad facts of the case are not complicated.  The police arrested four men in connection with a series of armed robberies in April, 2011. One of the men confessed and gave his cell phone number and the numbers of the other actors to law enforcement. This information was used to apply for court orders to obtain “transactional records” for each phone number.  The applications were granted under the Stored Communications Act, which provides that the government may require the disclosure of certain telecommunications records when “specific and articulable facts show[] that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” The transactional records included the dates and times of calls, and the approximate location where calls were made based on the user’s relative location to cell towers.  Such material is referred to as “cell site location information” or  “CSLI”.

Based on the CSLI, the government charged Carpenter with, among other offenses, Hobbs Act robberies (e.g., robberies that affect interstate commerce).  Carpenter moved to suppress the CSLI evidence on Fourth Amendment grounds, asserting that a warrant was required to obtain the records.  The district court denied Carpenter’s motion, and the Sixth Circuit affirmed.

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What is drug addiction?  How is it to be defined?  Is it some sort of disease, or just another form of illegal conduct?  Commonwealth v. Eldred, a case now before the Massachusetts Supreme Judicial Court, may soon provide guidance on these issues.  This case is important for any criminal attorney who represents addicts, particularly those who are placed on probation and then violate the terms and conditions of their supervision with, as frequently happens, a positive urine screen.  It is therefore worth a comment, even though it is from another jurisdiction.

We have all been down this road many times.  A client has a relatively low-level drug charge, which is typically the latest in a series of minor drug offenses or other petty offenses geared toward obtaining money to buy drugs.  The client’s criminal history and behavior are consistent with addiction.  They plead guilty and are placed on probation (or, in New Jersey, accepted into drug court, which is a form of probation).  One of the terms or conditions of their probation is that they remain drug-free.  In fact, this is always a standard term of probation in these cases.  The client subsequently reports to their probation officer and are asked to, among other things, provide a urine sample.  The sample tests positive and a violation is filed, with the result that the client is now facing the possibility of prison time.

Julie Eldred, a defendant with a relatively long drug history, was sentenced to probation for stealing jewelry to obtain money to purchase narcotics.  Her first urine test – taken only days after her probationary term began – was positive, and she was briefly jailed as a penalty.  In Ms. Eldred’s case, the Massachusetts Supreme Judicial Court will determine whether Ms. Eldred’s relapse warranted the imposition of a criminal sanction.  In doing do, the Court will opine on whether addiction is a mental disease that inhibits the addict’s ability to avoid using illegal substances, or some other kind of condition that will respond simply and directly to rewards and punishments. Continue reading

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Legislation governing the ownership and use of firearms, and the operation of gun shops, typically originates on the federal and/or state level.  As any New Jersey gun owner knows, our State already has some of the most restrictive gun laws in the country.  Certain cities and towns in different states including New Jersey are, however, apparently attempting to take action on the municipal level by implementing local ordinances that sharply restrict the operation of gun shops in their areas.

Officials in New Jersey who are purportedly fed up with what they perceive as insufficient federal or state action on gun control are using local-level policy rarely used to regulate gun dealers by adopting local zoning regulations that effectively ban gun shops from their municipalities.  Piscataway, a suburb of New Brunswick, does not have a single licensed gun dealer, and almost certainly will not at anytime in the near future. A Town Council resolution adopted on June 14 of this year is, in essence, designed to guarantee that a gun dealer cannot open in that town. The resolution bans gun stores from opening within 1,000 feet of schools, parks, health care facilities, and other locations that are viewed as sensitive. While the new zoning law does not explicitly forbid gun stores from opening in the town, it makes dealers subject to conditions that cannot be satisfied from any location in the municipality.

This is the first such ordinance in New Jersey, and one of several that have appeared in different municipalities all across the country. There are 24 municipalities in California with such location restrictions, and another two in New York. “There’s a growing concern about gun violence and the federal government’s inability to do anything comprehensive,” said Steven Cahn, the council member who drafted the ordinance. “The point is to demonstrate that as local officials, we’re not helpless. We can use our authority. Hopefully, other communities will do something similar.”

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The New Jersey Supreme Court recently approved a warrantless search of a vehicle’s glove box for registration and related documentation.  In doing so, the Court set parameters for when such a search will be constitutionally valid.

Defendant’s truck ran a traffic control and almost hit a police car.  The officer activated his lights and sirens and pursued the truck.  Defendant did not stop, but continued driving erratically.  The officer checked the vehicle, which was a rental that was not reported stolen.  Defendant subsequently turned into a gas station and stopped.  The officer pulled in behind the truck, while a back-up vehicle pulled in up front.  The officer then repeatedly ordered the defendant to show his hands, but the defendant did not respond.  The officer opened the vehicle’s door and ordered the defendant to get out.  Defendant left the vehicle, leaned against it, placed his hands in his pockets, and asked why he was pulled over.  The officer directed the defendant to show his hands, and he complied slowly.  He was then patted down for weapons.  He produced his driver’s license when asked for identification.  He was then asked for a vehicle registration and proof of insurance, but did not respond.  When asked a second time, he shrugged his shoulders.  He did not make any gestures that would indicate that the requested documents were on his person or in the truck.  When asked if he owned the truck or had any paperwork for it, he again failed to respond.  The officer then approached the passenger door, opened it, and looked in the glove box which was believed to be the most common place for keeping such papers.  He found nothing in the glove box, but discovered a handgun on the floorboard.

The motion judge denied a defense motion to suppress, finding that the officer was credible and had the right to search for the documentation in the place where it is typically kept.  The court also found that the discovery of the handgun fell within the plain view exception to the warrant requirement.  The defendant was convicted of weapons offenses at trial, but the Appellate Division reversed, finding that the warrantless search of the truck violated both the federal and state constitutions. Continue reading

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A defendant has the right to address the court at sentencing.  Such statements are offered in mitigation of punishment, and typically include acceptance of responsibility and/or some showing of remorse for the underlying conduct.  The New Jersey Supreme Court recently addressed the parameters of this right in State v. Jones.  As the Court noted, there is relatively little case law on this issue, so the guidance offered by this opinion is valuable and worth a comment.

Briefly, Jones and a co-defendant  were charged with the robbery of a woman and her daughter in a park in New Brunswick.  Jones subsequently pleaded guilty to first degree robbery and a second degree certain-persons-not-to-have-weapons charge.  The State’s sentencing recommendation was 15 years with an 85% parole disqualifier subject to the No-Early-Release Act, with a concurrent 7-year sentence on the certain persons charge.  At the sentencing hearing, defense counsel asked the Court to correct the pre-sentence report to note that the gun was unloaded at the time of the robbery, and to honor the plea agreement and sentence Jones in accordance with the State’s recommendation.  The Court then asked Jones if he wanted to speak.  Jones stated that the was “a hundred percent guilty” of the offense, but was not sorry for what he did.  The sentencing judge then stated “You’re not sorry?”, to which Jones replied that the victim was not the target, and then stated “Other than that, then that’s it.”  The Court then asked the State if it wished to be heard, and the prosecutor stated that the victim was “the intended target once [Jones changed] his mind in the park.”  Jones then asked to be heard again, but the Judge denied his request.

Jones did not appeal, but instead filed a pro se motion for post-conviction relief.  His issues were eventually disposed of by an excessive sentencing panel which held, among other things, that the sentencing court did not violate Jones’s right to allow him to speak at his own sentencing.  The Supreme Court granted certification to review this claim. Continue reading

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An inventory search is a narrow exception to the Fourth Amendment warrant requirement.  This search occurs after a defendant is arrest, but before incarceration.  Briefly, the police are allowed to search the defendant/arrestee without a warrant and inventory the property in their possession.  The goals of this search are to protect the defendant’s property while s/he is being held; to protect law enforcement from false property claims; and to safeguard the police from danger.  These searches are administrative in nature, and frequently do not receive significant attention.  In State v. Hummel, the New Jersey Supreme Court recently provided guidance on what qualifies as a proper inventory search.

Thomas Corbin was killed on December 5, 2010.  Two days later, law enforcement informed Lori Hummel that they wanted to take her to a police station for two outstanding traffic-related bench warrants.  She was then taken to the Gloucester County Prosecutor’s Office, where she was met by several detectives and placed in an interrogation room.  She had her purse on the table in front of her.  Detectives entered the room to begin questioning her, and sat down at the table without frisking her or removing her purse.  Soon after questioning started, she reached into her purse to get her cell phone.  She checked the time, and told the detectives that she had to pick up her daughter by a certain time.  The detectives did not comment on that but instead asked her to be sworn in, and then questioned her without first advising her of her Miranda rights.  When asked about her cell phone, she began looking through her purse for the receipt from its purchase.  The detectives continued questioning her about her relationship with Corbin.

The detectives then left the room.  After returning her possessions to her purse, she left the room and asked the detectives if she could leave to get her daughter.  They did not allow her to leave and she asked if she was under arrest.  One of the detectives said “technically” because of the traffic warrants, and that they still had questions for her.  She indicated that she thought she should get an attorney.  After questioning her about her decision to obtain counsel, the detectives left the room.  One of the detectives then came back in, cuffed her leg to a bar on the floor and told her she had an outstanding traffic warrant.  She asked repeatedly if she could call her lawyer.  The detective who cuffed her took her purse from the table, and the defendant objected.  Another detective then told her she was in custody.  As the detective with the purse left the room, the defendant said “Hopefully that $500 ain’t missing out of there.”   Continue reading

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A state trooper stopped a vehicle on I-295 in Burlington County.  The basis for the stop was a damaged tail light.  The vehicle, which also changed lanes without signaling, had three occupants – the driver, a front-seat passenger, and a six-year-old child in the back seat.  The trooper smelled burnt marijuana upon approaching the passenger side of the vehicle, and then asked the front passenger, the defendant Hagans, to step out of the vehicle.  He arrested, handcuffed, and Mirandized him, and called for backup.  He then asked the driver, Shonsheray Chandler, to step out of the vehicle.  He Mirandized her and asked her about the presence of Marijuana in the car.  She denied both knowing the defendant possessed marijuana, and that she had been smoking it in the car.  He handcuffed Chandler and placed her in the back seat of the police car.

The trooper asked Chandler to consent to a vehicle search.  Prior to reading her the consent form, he stated “it would be a lot easier if you would just make things easy.”  He read her the form, told her that she could refuse to consent, and that she could leave absent some other reason to hold her.  He also told her that she could be present during the search if she consented, and could withdraw consent at any time.  At first, Chandler refused to consent to the search.  The trooper responded by saying that he was going to apply for a search warrant which would just prolong the inevitable, and that he just wanted to make things easier.  Chandler then consented to the search.  In fact, the record indicated that she repeatedly consented to the search after her initial denial.  The trooper then re-read the consent form in its entirety and again asked Chandler if she consented to the search, and she responded in the affirmative.  The trooper also repeated for the mobile video recorder (“MVR”) that Chandler initially denied consent, but then changed her mind.  The vehicle search yielded a bag of marijuana and a handgun.

The defendant admitted that the marijuana and gun were his, and was charged accordingly.  During a suppression hearing, the trial court found that based upon the totality of the circumstances, the consent to search was valid and not coerced.  The Appellate division affirmed. Continue reading

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At some point in the development of the American criminal justice system, somebody decided that it was a good idea to provide defendants with library resource materials so they could either defend themselves or assist their trained criminal defense attorneys in defending them.  Without putting too fine a point on it, it is my personal opinion that this has turned out to be one of the stupidest things any attorney or judge ever thought of, for the following reasons.

No Legal Training – Let’s start with the most obvious points.  Most criminal defendants have no formal legal training.  Understanding the contents of a statute, case, or legal treatise is simply beyond their ability.  Most defendants who spend their days in the prison library refuse to acknowledge that it is virtually impossible to read and understand legal materials without formal legal training.  My experience with clients who perform their own research and write their own briefs has revealed repeatedly that a defendant will, for example, latch onto an isolated phrase in a particular source because the few words at issue seem to advance their cause; however, they almost invariably take the isolated quote out of its larger context.  When read as part of the larger case or statute, it becomes clear that the phrase lacks the meaning contemplated by the defendant, and therefore does little – if anything – to improve their position.

No Knowledge of Court Rules – But the problems go far beyond this.  Defendants also do not understand that in addition to statutes and cases, there are procedural rules that affect virtually every aspect of a criminal case.  They refuse to see that legal arguments may stem from a given source, but must then be brought before the court in a manner consistent with all applicable procedural rules.  This means that arguments cannot typically be raised when and how the defendant wants to raise them.  The procedural rules act as an overlay to substantive sources, and govern the manner in which the latter can be used.  This point is simply lost on jailhouse lawyers. Continue reading

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Most defendants who are facing jail time are very satisfied with a probationary sentence in lieu of incarceration.  However, defendants sentenced to probation do not always realize that the sentence comes with a list of terms and conditions with which they must comply during their period of supervision.  Some terms and conditions are fairly standard.  These typically include remaining arrest-free, maintaining employment, going to school, and remaining drug and alcohol free.  The sentencing judge can also impose more case-specific or defendant-specific terms and conditions that can be very creative, and are designed to meet the unique needs of the matter at hand.

The failure to comply with the terms and conditions can result in the filing of a violation by the probation officer responsible for the case.  The Court will then schedule a hearing on the violation.  If the violation is sustained, the Court could impose penalties that range from a lengthening of the probationary term to a sentence in state prison.  Under current law, the maximum term of probation in New Jersey is 60 months, or five years.  Certain defendants may be eligible for early termination if they can show compliance with all conditions and requirements.  Defendants must always remember that being on probation is not always easy, and the likelihood of a violation typically increases with the length of the probationary term.  Put somewhat differently, defendants who are placed on probation for long periods of time are at greater risk of facing a violation.

State v. Mosley, decided by the New Jersey Supreme Court on March 6, 2017, reminds us that probation violation hearings are not criminal trials.  The State bears the burden of proving the violation, but the standard of proof is much lower than what is required at trial.  This is largely because probation violation hearings are not viewed as part of a criminal prosecution, but as part of the corrections process. Continue reading

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We recently passed the first anniversary of criminal justice reform in New Jersey.  As discussed regularly on this blog, these far-reaching changes to criminal practice and procedure in the State affect the handling of all criminal cases in the Superior Court.  The primary areas that these changes impact upon are bail reform and the speed with which criminal cases progress through the system.

As discussed in previous posts, the new procedures assume those charged with criminal offenses will not be incarcerated pending trial or other case disposition.  Prosecutors can, however, seek to detain a defendant while their case is pending before the court.  This is accomplished by means of a detention motion filed by the State, which is followed by a detention hearing.  After considering, among other things the arguments of counsel and the Public Safety Assessment (the “PSA” – a sort of score sheet that rates the defendant for risk of failure to appear in court in the future and likelihood of committing new offenses), the court decides whether to release the defendant with or without conditions, require the posting of a bail, or detain the defendant without bail.  The defendant can appeal an adverse detention decision.

SN was charged with sex offenses.  The PSA gave him the lowest possible scores for risk of committing additional offenses and risk of failure to appear, but still recommended detention regardless of the low scores.  The State sought pretrial detention, arguing that there was a serious risk that defendant would fail to appear in court, that he was a danger to the community, that he would intimidate the victim, her mother and other witnesses to obstruct justice, and that he was a flight risk because he had relatives living in another country. Continue reading