Articles Posted in Search and Seizure

Gun owners must always remember that the issuance of a domestic violence temporary restraining order, or TRO, can result in at least a temporary seizure of their weapons and firearms purchaser identification card.  On the surface, the typical chain of events is fairly straight forward.  A member of the same household complains of an alleged act of domestic violence.  The police arrive and, if previously provided with information concerning weapons in the home, seize the weapons and any related items including ammunition and the gun owner’s FID Card pursuant to a warrant.  The court will then conduct a hearing to determine, among other things, whether the weapons and other items can be returned to the gun owner.  The issue in Hemenway was the standard that should guide a court’s decision to issue to a domestic violence search warrant for weapons.  Specifically, the relevant statute and related cases referred to a “reasonable cause” standard for the issuance of such a warrant, and the Supreme Court was called upon to determine whether this standard passed Constitutional muster under the Fourth Amendment of the United States Constitution and the analogous provision of New Jersey’s Constitution.

The applicant in the underlying domestic violence case requested a TRO barring Defendant from, among other things, from possessing firearms, knives and a taser.  In court, the Family Part judge asked her whether she had an awareness that he had any weapons.  She responded affirmatively and the judge asked what kind of weapons did she claim he had.  She responded “handguns, knives”, to which the court replied “A handgun?”  She then stated “knives, blades”, to which the court replied “handguns?”  She then stated “switchblades”.  She also alleged that Defendant kept the weapons in three cars and his apartment.    Based upon this colloquy, the court entered a TRO and a search warrant to “search for and seize … handguns, knives, and switchblades” from Defendant’s home and three vehicles.  The court did not state a “reasonable cause” or “probable cause” basis for believing that Defendant possessed the weapons, or that they would be located in his home or vehicles.

Two officers met Defendant outside his home and told him that they had a warrant to search his residence for weapons.  Defendant was not permitted to call his lawyer , and was arrested when he refused to allow the officers into his home.  Upon entry, the officers saw what appeared to be cocaine and marijuana.  A detective then obtained a telephonic search warrant for Defendant’s cars and residence.  The search yielded drugs, ammunition and cash, but no weapons.  Defendant was charged with narcotics offenses.  His suppression motion was denied because the trial judge determined that the telephonic warrant was issued based upon probable cause to search the residence, and the domestic violence search stemmed from an independent and adequate basis to the cars.  The Appellate Division affirmed and the Supreme Court granted certification.

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The ability of law enforcement to access the cell phone content of a criminal defendant has received considerable attention in recent years.  The issue has been the same in case after case.  If the cell phone is seized as part of an investigation, the security settings, such as passcodes, shield the content from law enforcement.  The New Jersey Supreme Court recently considered whether a court order requiring a criminal defendant to disclose his cell phone pass codes violates his right to not incriminate himself pursuant to the Fifth Amendment of the United States Constitution, and/or New Jersey’s statutory or common law right against self-incrimination.

Quincy Lowery was the target of a State narcotics investigation.  During the investigation, he informed detectives that Robert Andrews, a former Essex County Sheriff’s Officer, had given him information concerning the investigation, and had told him how to avoid criminal exposure. Andrews and Lowery had known each other for about a year, and belonged to the same motorcycle club.  Lowery informed detectives that he regularly communicated with Andrews over FaceTime.  During one of these communications, Andrews told Lowery to get rid of his cell phones because members of law enforcement were doing wiretaps after the arrest of members of the Crips gang.  Lowery told Andrews that he thought he was being followed by the police, and texted Andrews the license plate number of one of the vehicles.  Andrews then informed him that the plate number belonged either to the Essex County Prosecutor’s Office or Sheriff’s Department.  He also instructed Lowery to put his car on a lift to see if it had a tracking device attached to it.  After seeing a picture from Lowery of someone who was following him, Andrews told Lowery that the person was with the Prosecutor’s Office.  Lowery’s allegations were corroborated by his cell phone records.

The State obtained warrants for cell phone numbers belonging to both Lowery and Andrews.  The warrants showed 114 calls and text messages between the two over a period of six weeks.  Andrews was indicted for official misconduct, hindering apprehension and obstruction of justice.

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Many attorneys – both defense attorneys and prosecutors – will knowingly try to introduce objectionable material at trial.  The reason for this is simple.  The attorney believes that the jury has to hear it.  It makes a difference in their case, and the effort to introduce it is strategic.  Even if it is met with an objection from the other side, and the objection is coupled with a curative instruction from the Court, what often matters is that the jury heard it and they may be thinking about it.  The system functions on the assumption that the jury follows the Court’s instructions, and will therefore comply with a curative instruction to ignore what was said.  But we all know that in reality, human nature takes over.  Regardless of the Court’s instruction to ignore it, there is every reason to assume that what will ultimately happen is that the jury heard the objectionable material and human nature does the rest.  This is the reality of a criminal justice system that relies upon the thinking and actions of ordinary people.  It may not be consistent with the rules, but the fact is that it happens in criminal trials every day.  A good criminal trial attorney will assume that the jury sees, hears and considers everything without exception, even over their objection and regardless of the court’s instructions.  (And, by the way, counsel should still object and request the curative instruction.  It may not make much of an impact on the jury, but it could be the difference between winning and losing in the Appellate Division.)

The impression that certain objectionable statements made upon the jury was at the heart of the recently decided case of State v. Tung.  There the issue was whether the trial court erred in admitting evidence that the defendant exercised his Fourth Amendment right to refuse to consent to a warrantless search; evidence that the defendant exercised his Fifth Amendment right to counsel; and an interrogating officer’s opinion that the defendant lied.

The Appellate Division reversed the defendant’s convictions for murder, aggravated arson, and other offenses.  At trial, the jury repeatedly heard that during a pretrial recorded statement, the defendant refused to consent to searches of his property, and had requested counsel.  Such references were clearly capable of producing an unjust result at trial because they improperly encouraged the jury to draw negative inferences against the defendant because he had invoked his Fourth and Fifth Amendment rights.  The trial court did not excise these references, and did not provide a cautionary/curative instruction. Continue reading ›

In my experience, client calls from jail or prison facilities come in two forms.  Sometimes, a client will call me directly from the facility using the facility’s telephone equipment.  On other occasions, I will receive a call from a friend or family member who will then “third-party” the client in from the facility.  Both methods of contact present serious problems.  The third party call involves having someone on the line who is not part of the case, and has no reason to listen to attorney-client conversations.  Thus, this method of calling an attorney presents serious attorney-client privilege issues.  I always advise clients to never discuss their case with anyone who has no need to know about it.  A criminal case is a sensitive matter; information must be shared on a strictly “need-to-know” basis, and in a manner consistent with applicable rules governing privileged communications.

Direct calls using jail or prison telephones are highly problematic for other reasons.  State v. Jackson involved calls made by an inmate at the Essex County Jail outside of Newark, New Jersey.  That facility ostensibly allows inmates to make unmonitored and unrecorded calls to attorneys and Internal Affairs.  Otherwise, inmates are informed at the beginning of all calls that they may be recorded or monitored.  Inmates also sign a release form stating that they understand that calls are subject to monitoring and recording, and may be intercepted, and Jackson signed that form.  Similarly, inmates at the Middlesex County Jail, the other facility in this case, receive a pamphlet stating that “[t]elephone calls may be monitored and recorded except calls to the Internal Affairs Unit and legal telephone calls.”  Further, the inmate hears “[t]his call may be recorded or monitored” at the beginning of each monitored call.

Defendants in each of these cases made calls from these jails.  The Middlesex County Prosecutor’s Office then served grand jury subpoenas on the jails to obtain the recordings, and the defendants moved to suppress.  The motion judge suppressed the calls because the subpoenas, in his view, violated the New Jersey Wiretapping and Electronic Surveillance Control Act.  He believed that a separate warrant or wiretap order was necessary even though the Wiretap Act allows jails to monitor inmate calls.  He also believed that an inmate’s consent or knowledge that calls would be monitored or recorded was invalid because of the imbalance of power between the inmate and the facility.  In an effort to be sensitive to inmate privacy concerns, he suppressed the calls in both cases.

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Our Supreme Court recently decided State v. Nelson, which addresses the extent to which the police may prolong a traffic stop to investigate suspected criminal activity.

The facts of the case are straight-forward.  A New Jersey state trooper learned from a reliable source that a silver Infiniti with a known plate number driven by an African-American male would be traveling up the Turnpike with a large quantity of marijuana.  The car was spotted shortly after receiving this information, and was pulled over for traffic violations.  Upon approaching the car, the trooper noticed a strong smell of air freshener.  The driver was sweating heavily, and was visibly nervous.  He was asked where he was going, and changed his story repeatedly.  The car contained no personal belongings except for two large bundles in the cargo area.  The driver told the trooper the bags contained shoes from a store he was closing.

The trooper asked for consent to search the car, but this was denied.  At this point, he believed that he had a reasonable and articulable suspicion that a crime was being committed, and asked for a canine search unit to come to the scene.  He made the request at 7:21 pm, and the canine arrived at 7:58 pm.  The dog alerted at the rear hatch, the driver was arrested, and the vehicle was impounded and searched pursuant to a warrant.  The search led to the discovery of 80 pounds of marijuana. Continue reading ›

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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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 ›

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 ›

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 ›

Generally speaking, there are two broad categories of searches.  Either a search can be made with a search warrant, or it can be warrantless.  Our law prefers searches that are made pursuant to a warrant.  A warrantless search will be valid only if the search and seizure activities fall within one of the recognized exceptions to the warrant requirement, each of which has its own detailed requirements.

Evidence seized pursuant to a search conducted with a warrant is, as a general rule, harder to suppress than evidence seized without a warrant.  Defense counsel must carefully review the warrant paperwork, which consists of an application submitted in support of the warrant, the warrant itself, and the return on the warrant, so as to locate defects in the application process that can serve as the basis for a suppression motion.  The identification of such defects was the basis for the recent New Jersey Supreme Court decision in State v. Boone, which was decided on December 18, 2017.

Boone faced a series of narcotics and weapons charges stemming from contraband that the police located in his Hackensack apartment in August, 2012.  The search of his apartment was conducted pursuant to a warrant.  Boone moved for an order suppressing the evidence since the warrant application lacked any information as to why his specific unit should be searched. Continue reading ›

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