Articles Posted in Search and Seizure

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 ›

Our personal information is constantly being collected by third parties without our realization.  Every time we use one of our devices, we expose personal details and information to collection by any number of entities that use the data for various purposes.  Privacy is clearly on the decline as the use of one device or another becomes a standard and unavoidable part of life.  An individual cannot be part of modern society absent a cell phone and/or computer.  These facts all have serious implications for criminal defendants.

In 1979, the United States Supreme Court decided Smith v. Maryland.  There the Court discussed what has become known as the “Third Party Doctrine”, which provides that individuals do not have a reasonable expectation of privacy in information voluntarily given to a third party (e.g., telephone carrier or bank).  This information is then available to Government agencies, including law enforcement agencies.

The Court is now scheduled to hear a case that asks what the police and prosecutors can legitimately do with personal data that is collected from third parties.  Carpenter v. United States could greatly alter Fourth Amendment principles and procedures as they must be applied in cases involving data resulting from the use of cellphones, computers, and similar devices. Continue reading ›

The New Jersey Supreme Court decided State v. Rosario on June 6, 2017.  The case is important because, among other things, it discusses and distinguishes between the two most common types of police-citizen encounters, which are field inquiries and investigative detentions.

The facts are uncomplicated.  Police received an anonymous tip that defendant was selling illegal drugs from her home in a residential development, as well as from her vehicle.  One night, an officer patrolling the development noticed a moving silhouette in a parked car, which turned out to be the defendant’s vehicle, and decided to investigate further.  He pulled his patrol car up behind, and perpendicular to, the defendant’s car in such a way that the latter was blocked in.  The officer then activated his rooftop alley light which was aimed at the defendant’s car, but did not activate the siren or emergency lights.  The alley light enabled him to see a woman, who turned out to be the defendant, in the driver’s seat.  He observed her moving around in the driver’s seat and leaning toward the passenger’s seat.  He then exited his cruiser and approached the driver’s side door of the defendant’s car.  The window was partially open, and he asked the defendant for her license and other documents.  She produced the requested material, and the officer recognized her as the subject of the previously received anonymous tip and recalled that he had previously arrested her on narcotics-related charges.  He asked the defendant what she was doing, and she responded that she was smoking a cigarette, but the officer did not see a cigarette or butt.  He then asked her why she was moving around and turning toward the passenger seat when he pulled up, and she responded that she was putting on make-up and turned to put it away in her purse.  The officer then asked her how she could do that in the dark, but she did not respond.  He then asked if there was anything in the vehicle he should know about and, according to the officer, the defendant responded that she had the same thing he arrested her for previously.  According to the officer, the defendant then simply reached over to the passenger seat for an eyeglass case.  She opened it and the officer could see a white powdery substance.  The officer then arrested the defendant.  The trial court denied the defendant’s suppression motion, the Appellate Division affirmed, and the Supreme Court granted certification.

The Supreme Court began by recalling that field inquiries, and investigative detentions or “Terry” stops, are two of the three types of encounters that an individual can have with law enforcement.  A field inquiry involves a situation where an individual, under all of the surrounding circumstances, reasonably believes that they cannot simply walk away without answering the officer’s questions.  In an investigative detention, the person reasonably believes that their freedom of movement has been restricted.  Thus, an investigative detention, unlike a field inquiry, is a temporary seizure of the person, and must therefore be based upon the officer’s reasonable and particularized suspicion that the person has engaged, or is about to engage, in criminal activity.  The nature and quality of these encounters are measured from the perspective of the individual who is the subject of the stop. Continue reading ›

Law enforcement agencies that investigate child pornography cases face special technological challenges when tracking the distribution of contraband on the Internet, and then in building a case against a specific defendant.  A case in point is “Dreamboard”, an online bulletin board that advertised and distributed child pornography.  Dreamboard users employed encryption software, peer-to-peer networks and the so-called “Dark Web” to share images between and amount members/subscribers in 13 different countries.  In fact, all Dreamboard subscribers were required to use specific encryption software when viewing and/or sharing images.  Further, each file description had a specific link and password which allowed access to images through another website that stored encrypted files.  Dreamboard was the target of a 2009 sting operation that resulted in approximately 70 convictions.  The site was infiltrated through the efforts of several dozen law enforcement agencies including, without limitation, the Departments of Justice and Homeland Security, and 35 domestic ICE offices.

Dreamboard users obviously had to have both a level of technological skill, as well as the appropriate equipment and software, to be members.  The Dreamboard case was, however, not unique in this regard.  In a recent Louisiana case, a defendant set his computer to wipe the hard drive clean if a password was not entered within a few seconds of opening the device.  Another defendant asked an undercover agent posing as a minor to send him a picture during an online chat.  Law enforcement personnel are not allowed to distribute pornography, so the agent’s smartphone would not allow him to send a photo.  This ultimately led the defendant to believe that the agent was using a smartphone, at which point he ended the conversation.

If it all sounds complicated, that’s because it is.  The possession and distribution of online pornography is becoming increasingly sophisticated in terms of technology and scope.  These cases can include the use of password protection, encryption, file servers and/or peer-to-peer networks, software designed to eliminate evidence, remote storage, partitioned hard drives, and the like.  These cases are further complicated by the fact that pornography has gone global, and frequently involves the use of mobile devices, apps, and social media sites including What’s App, Kik Messenger, Instagram and Snapchat.  Finally, cases can involve terabytes of data.  (One terabyte equals about 1,000 gigabytes, and can hold approximately 3.6 million images or 300 hours of video.) Continue reading ›

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