Articles Posted in Search and Seizure

Generally speaking, a motor vehicle is not protected from unreasonable searches and seizures to the same extent as a home.  Our State’s Supreme Court has further reduced that level of protection.

William Witt was pulled over on Route 48 in Carneys Point in Salem County in December 2012.  Witt’s high beams were activated, and he failed to dim them as he passed a nearby police officer.  The officer spoke with Witt, determined that he was intoxicated, performed field sobriety tests, and arrested him.  The officer searched the car for an open alcohol container and located a handgun in the center console.  Witt moved to suppress the gun, arguing that the search and seizure were unreasonable.  This argument was based on the 2009 Supreme Court decision, State v. Pena-Flores, which required the police to have both probable cause and exigent circumstances before conducting a warrantless search of an automobile.  The search of Witt’s vehicle was unconstitutional because there were no exigent circumstances preventing the police from first obtaining a warrant.

In the September 2015 decision of State v. Witt, the NJ Supreme Court overturned Pena-Flores and retreated to the standard set in the 1981 decision of State v. Alston.  The earlier standard allowed police to search a vehicle without a warrant when they had probable cause to believe the vehicle contained evidence of a crime, and where the probable cause stemmed from circumstances that were unforeseeable and spontaneous. Continue reading ›

Cleveland, Ohio has become the latest city to enter into a consent decree with the United States Justice Department (“DOJ”) concerning the conduct of its police force.  Other cities that have previously entered into similar agreements include New Orleans, Seattle and Detroit.

The consent decree stemmed from a DOJ investigation that found Cleveland police officers had routinely used excessive force (e.g., tasers, pepper spray and guns) against mentally ill, unarmed and already-handcuffed suspects.  DOJ investigators reviewed approximately 600 use-of-force incidents that occurred between 2010 and 2013 and concluded that officers almost routinely used guns in a “careless and dangerous manner”.  Other problems with the police department included its apparent inability and/or unwillingness to investigate complaints against itself.

The consent decree will cover such topics as use of force by police officers, community policing and engagement, accountability, crisis intervention and bias-free policing.  The consent decree will be supervised by a Federal judge, and will terminate only after Cleveland can demonstrate sustained and substantial compliance with its terms.  If the City fails to implement the changes contemplated by the agreement, the judge can order them to do so. Continue reading ›

The United States Supreme Court decided Grady v. North Carolina on March 30, 2015.  After completing his prison term for sex offenses, the State determined that Grady was a recidivist sex offender, and wanted to place him on satellite-based monitoring.  Grady argued that the monitoring program, which required him to wear a monitoring device at all times, violated his Fourth Amendment right to be free from unreasonable searches and seizures.  Grady’s argument was based on U.S. v. Jones, where the Supreme Court held that installing a GPS tracking device on a suspect’s car was a “search” within the meaning of the Fourth Amendment.  The State courts rejected Grady’s argument, finding that the monitoring program at issues was not a Fourth Amendment search.  This conclusion was based, apparently in large part, upon the view that the proceeding giving rise to the monitoring was civil in nature, whereas Jones was a criminal case, which entailed different (higher) legal standards.

The Supreme Court rejected the reasoning of the State courts.  First, the monitoring program was a “search” because it enabled the State to “physically intrude on a constitutionally protected area … [A] State conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.”  The fact that the monitoring program was civil in nature was rendered meaningless by settled law establishing “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations [] and the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”

Ultimately, however, the Court observed that the Fourth Amendment protects only against unreasonable searches and seizures.  Thus, it remanded the matter to the North Carolina courts to determine whether the monitoring program was reasonable when viewed as a search. Continue reading ›

The United States Supreme Court decided Rodriguez v. United States on April 21, 2015.  The decision enhances Fourth Amendment protections in cases involving motor vehicle stops.

Briefly, Rodriguez, the driver, and his passenger were stopped by a Valley, Nebraska police officer for veering onto the shoulder of a State highway and then jerking back onto the road.  The officer was a K-9 officer who had his police dog with him.  He conducted a records check on the vehicle’s occupants, questioned Rodriguez and his passenger, checked all of the necessary documents, wrote a warning ticket, and returned the documents to the occupants with the warning ticket.  Thus, the main purpose of the initial stop – the investigation of a traffic infraction – was completed.

Nevertheless, the officer did not consider Rodriguez and his passenger free to leave.  He requested permission to walk his dog around the vehicle, and Rodriguez declined.  The officer then instructed Rodriguez to turn off and exit the vehicle, and stand in front of his patrol car to await the arrival of a second officer.  Rodriguez complied, the second officer arrived, the dog was escorted around the vehicle and alerted to the presence of drugs (methamphetamine).  Significantly, approximately seven to eight minutes had passed between the issuance of the warning ticket and the alert by the dog. Continue reading ›

The United States Supreme Court has ruled 8-1 that a police officer can stop a vehicle based upon a mistaken understanding of the law without violating the federal Constitution.  Heien v. North Carolina, No. 13-604.

An officer in North Carolina stopped a vehicle because of a broken brake light.  State law requires vehicles to have only a single functioning stop lamp, which the car in question had.  The stop was therefore based upon the officer’s mistaken understanding of the law.  The officer began to issue a warning ticket for the broken brake light, but became suspicious of the movements of the vehicle’s occupants.  The owner consented to search of the car, the officer discovered cocaine, and the owner was charged with trafficking.

At oral argument, Appellant’s lawyer argued that “[t]he government should be presumed to know the laws.”  He argued further that “[i]t would undercut public confidence in law enforcement and the common law rule upon which the criminal law is built to say the government doesn’t have to be presumed to know the law when it acted.” Continue reading ›

On June 25, 2014, the US Supreme Court released its decision in Riley v. California and the companion case of US v. Wurie.  The Court held that the police may not search digital information on a cell phone that was seized from an individual in reliance on the “search incident to arrest” exception to the warrant requirement.

The Court began its analysis by recalling basic principles of search and seizure, recalling immediately that the touchstone of our Fourth Amendment jurisprudence is “reasonableness”.  This generally means that the police must obtain a warrant from a detached and neutral judicial officer before conducting a search.  Warrantless searches are reasonable only if they fall within a specific exception to the warrant requirement.  The Court also discussed the history and development of search-incident-to-arrest as reflected in various cases including Chimel, Robinson and Gant.  Against this backdrop of familiar concepts, the Court took up the question presented by Riley and Wurie, which is the reasonableness of a warrantless search incident to a lawful arrest when the subject of a search is the contents of a cell phone.

First, the Court considered the two primary concerns for warrantless searches incident to arrest raised in Chimel, which were officer safety and destruction of evidence.  As to officer safety, the Court observed that digital data stored on a cell phone cannot be used as a weapon to harm officers, or to effect an escape.  Officers can examine the physical phone to see if it contains something that could be used as a weapon (e.g., a hidden razor blade), but could then secure the phone and refrain from further search activities until a warrant is obtained.  As to destruction of evidence, the United States and California both argued that cell phone data is subject to remote “wiping” (a phone connected to a wireless network receives a signal that erases stored data), and “encryption”, (a security feature that locks the phone and causes the data to remain encrypted until released with the correct password).  In rejecting these concerns, the Court observed that there was nothing before it indicating  that these issues were prevalent, and that there were other ways to address them.  For example, a phone could be disconnected from a wireless network, or placed in a commonly available aluminum foil bag that would inhibit the necessary transmissions (already in use by several police departments).  If the phone is unlocked when it is discovered, it also may be possible to disable its locking feature. Continue reading ›

The New Jersey Supreme Court recently decided two cases that comment on the United States Supreme Court’s decision in Fernandez v. California.  These cases are important to understand the latest New Jersey developments in the important area of consent searches,  and should be read carefully by all defense attorneys.

State v. Michael Lamb relies heavily upon Fernandez to validate a consent search.  Pennsville police were investigating a shooting in a particular part of town, and their investigation eventually led them to Lamb’s home.  A detective came to the front door, and Lamb’s stepfather emphatically instructed him to leave the property.  Lamb’s girlfriend then came to the door, and the police took her by her arm and removed her from the house while Lamb’s father continued yelling at them to leave.  The girlfriend told the police that Lamb was in the house hiding under a bed.  Lamb’s stepfather eventually left the home, and the police arrested him and removed him to a “safe area”.  Lamb’s mother then insisted that he leave the house.  He did so, and was arrested.

The police then approached the entrance and spoke with Lamb’s mother, who ultimately signed a consent-to-search form and guided the officers to the room that Lamb occupied when he stayed at the house.  There the officers located a handgun and a spare magazine.  At a motion hearing, the mother testified that she consented to the search because the police threatened her.  She testified further that she was upset because one of her other children was distraught, and because her son’s behavior had brought the police to her home.  She was also concerned that the police would tear her house apart while searching it.  Thus, the record revealed serious issues concerning the circumstances under which the police obtained her consent.  Nevertheless, the motion court rejected her testimony, credited the officer’s version of events (which apparently asserted that the officers’ conduct was not threatening or coercive, and that appropriate procedures were followed), found that the mother’s consent was knowing and voluntary, and denied suppression. Continue reading ›

Generally speaking, consent searches are on the long list of unwanted events that create additional hurdles to mounting an effective defense in any criminal case.  Fernandez v. California, decided by the U.S. Supreme Court on February 25, 2014, exacerbates these problems.

Fernandez, a suspect in a violent robbery was seen running into an apartment building.  Screams were subsequently heard from one of the apartments in that building.  The police knocked on the door, which was answered by Roxanne Rojas.  Ms. Rojas was battered and bleeding.  The officers asked her to step outside so that they could conduct a protective sweep.  Fernandez then came to the door and objected to their presence in the apartment.  The officers suspected that he had assaulted Rojas, removed him from the apartment, and arrested him.  He was then identified as the perpetrator of the prior robbery and taken to the police station.  An officer then returned to the apartment, asked for and received Rojas’ consent for a search, and found evidentiary items linking Fernandez to the robbery.  The trial court denied a suppression motion, Fernandez was convicted, and the California Court of Appeals affirmed.

On review, the U.S. Supreme Court recalled Shneckloth v. Bustamonte, which held that consent searches are permissible warrantless searches.  A situation where the home only has one occupant who consents to the search does not raise any issues.  The court noted further that U.S. v. Matlock held that when the premises has multiple occupants, such a search is valid even if only one occupant is present and consents, so long as that occupant has common authority over the premises.  Finally, in Georgia v. Randolph, the Court held that where a physically present occupant refuses to consent, that refusal is dispositive as to him, notwithstanding the consent of another occupant.  In the matter at bar, Rojas was the only occupant present when the subsequent request for consent was made, and the police obviously knew that Fernandez previously refused consent.  The issue was whether and/or to what extent Fernandez prior refusal, made when he was present, carried forward to the time of the subsequent police request for consent to search, when he was no longer present because of his previous arrest for the robbery. Continue reading ›

Edward Ates appealed his Bergen County conviction and life sentence for the murder of his son-in-law in Ramsey, New Jersey.  The Appellate Division affirmed, and the New Jersey Supreme Court granted certification to consider, among other issues, Ates’ assertion that New Jersey’s Wiretapping and Electronic Surveillance Control Act was unconstitutional.

The cell phone conversations underlying Ates’ argument were between Florida, Louisiana and New Jersey.  New Jersey law enforcement authorities obtained an order from a New Jersey wiretap judge to monitor the conversations.  In issuing the order, the judge complied with all of the procedures required by the wiretap statute.  Ates argued that the conversations should have been suppressed, and the Wiretap Act should be declared unconstitutional, because New Jersey authorities could not intercept and monitor out-of-state cell phone conversations from New Jersey; rather, the New Jersey authorities should have asked the proper officials in Florida and Louisiana to consent to the wiretaps.  The Act was also constitutionally defective because it allowed New Jersey authorities to act outside their jurisdiction and wiretap individuals with no connection to New Jersey.

In analyzing Ates’ arguments, the Supreme Court noted that the Wiretap Act permits interceptions to investigate criminal activity in New Jersey, and requires a judge to find that a particular offense has been, is being or will be committed in New Jersey, and that interception may provide evidence of the New Jersey offense.  The Act allows authorities to monitor conversations outside New Jersey from a listening post within New Jersey.  Thus, the statute requires actual connections between the subject conversations(s), the offense(s) at issue, the investigation of those offenses, and the State of New Jersey.  The fact that Ates’ arguments were far from novel was reflected in the Court’s review of a long list of Federal and State cases that have rejected similar challenges to wiretap statutes. Continue reading ›

Antoine Cortez-Dutrieville wanted to challenge the seizure of evidence, including heroin and other paraphernalia, from the home of his child’s mother, Portia Newell.  At some point, however, Newell had obtained an order of protection which, among other things: (a) barred him from contacting her for most purposes, (b) “evicted and excluded” him from her home; (c) provided that he had no right or privilege to be at her home; (d) provided that her consent to his presence in her home could not override the dictates of the order; and (e) provided that he could be arrested without a warrant for violating the terms or conditions of the order.  At the time of the search and seizure, Dutrieville argued that he had been staying at Newell’s home for three days with her consent.  He also admitted that he was subject to the order of protection at all relevant times.

The district court rejected his challenge to the search and seizure, and the Third Circuit Court of Appeals affirmed.  These courts concluded that Dutrieville lacked standing to raise the challenge because he lacked a legitimate expectation of privacy in Newell’s home and/or any personal items he had in the home such as his overnight bag, since the order of protection barred him from being at the searched premises.  Dutrieville argued that he was there with Newell’s consent.  These courts found that most overnight guests in a home could raise such a challenge on this basis, since that status creates a reasonable expectation of privacy that society is prepared to recognize.  However, pursuant to applicable State law, Dutrieville’s presence in Newell’s home violated the order of protection and exposed him to criminal sanctions.  This gave Dutrieville the status of a squatter or trespasser who occupies property unlawfully.  Because his presence was wrongful, he lacked the objectively reasonable expectation of privacy necessary to seek suppression of the seized evidence.

For the same reasons, Dutrieville also lacked any objectively reasonable expectation of privacy in the overnight bag that he brought with him for his unlawful visit.  He was barred legally from Newell’s home, and therefore was prohibited from using it as a place to store his personal effects. Continue reading ›

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