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Statements to law enforcement are a routine part of many criminal investigations.  The atmosphere in which a statement is taken is pretty grim.  A suspect is placed in an interview room which, in itself, is an inherently coercive environment.  These rooms are typically small and engender a sense of being cut off and isolated.  Most statements are typically taken by at least two law enforcement officers, so the suspect being interviewed will naturally feel outnumbered.  Requests by the suspect during the interview to seek advice from others, such as family members, are denied.  In New Jersey, statements are typically recorded in video format.  This was not always the case – video recordings became part of the interview procedure because of ongoing complaints concerning abusive tactics by officers conducting the questioning.

But it gets worse than this.  Many people think that they can handle themselves in the interview room by simply explaining the underlying situation to the officers present without saying anything that will ultimately undermine their position in any resulting case, and that they will then be allowed to simply leave the facility without being arrested.  Generally speaking, nothing can be further from the truth.  The officers taking the statement are trained to elicit damaging information from the person being questioned.  Further, they have probably already interviewed other people involved in the investigation such as purported victims, and know what they are looking for when it comes time to interview subjects or targets.  Thus, alone in an unfamiliar environment, outnumbered, and confronted with officers who have been taught to obtain damaging admissions of wrongdoing and already know something about the underlying facts, many people bury themselves without even realizing it.  As a New Jersey criminal defense lawyer, I confront these issues regularly.

A defendant’s statement to law enforcement almost always makes it more difficult to defend the case.  The solution to the problems that statements create is simple.  Don’t give a statement.  A suspect in a criminal case does not have to answer questions from investigating officers, and should refuse to speak to the officers conducting the questioning.  Although the suspect will almost certainly be arrested and charged, they have done nothing to strengthen the case against them by giving a statement.

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We are in the midst of the midterm elections, and abortion was a central issue because of the Supreme Court’s overturning of Roe v. Wade.  This was obviously on the front burner this election season because of the effect on reproductive and privacy rights.  But the overturning of Roe presents another issue that has been touched upon in the media, but may actually be more significant than the elimination of this Constitutional right that has been law for decades.

The basic course in Constitutional Law is a staple of the first year law school curriculum.  Indeed, it is probably the favorite of most, if not all, new law school students.  It touches on our nation’s history, current events and the operations of our government, and explores issues that are of considerable significance to every American citizen.  Anyone who follows world politics knows that no other country has anything like this extremely unique institution.  One of the points that is emphasized in this course is the somewhat obvious fact that our Supreme Court does not have an army or law enforcement apparatus that may be called upon to enforce its decisions.  The strength of the Court’s decisions and the level of seriousness with which they are viewed and accepted as law is a function of the Court’s credibility.  If the Court is not viewed as a credible institution, its decisions could be ignored, and even laughed at.  As has been reflected in the media, the current Court has lost a substantial amount of credibility in the eyes of many Americans for several reasons.

First, the importance and role of precedent is a hallmark of American jurisprudence.  The law is not supposed to be based on surprises but must instead, at least to some extent, be predictable.  Taking a precedent like Roe that has been the law of this country for decades and overturning it as was done is anything but predictable.  In fact, there were media reports that Chief Justice Roberts, who was not a fan of Roe, favored a more incremental approach to pulling back on it.  Obviously, this was not what happened, and the result was the ongoing scramble among the various states to make decisions concerning the extent to which the right to choose will be protected.

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Many people contact our firm to learn about terminating their obligations under Megan’s Law and Community Supervision for Life or Parole Supervision for Life (CSL/PSL).  We are known throughout the State for representing clients seeking termination of these burdensome, and frequently useless, obligations.  There is information on the firm’s website concerning the criteria for terminating these incredibly burdensome requirements, which we encourage all those viewing us online to read.  However, if you are saddled with Megan’s and CSL or PSL obligations, and you are tired of the ways they are forcing you to place your life on hold, we encourage you to continue reading.  The information below, as well as that on our main site, is very general and should be viewed only as a starting point.  It is, however, a good place to begin.  Bear in mind, however, that you must contact a seasoned Megan’s Law attorney in New Jersey for counseling and advice that meets your unique needs.

It’s hard to believe, but the nightmares that are Megan’s Law and CSL/PSL have been around since 1994.  For one thing, this means that the number of defendants who are eligible to have their obligations terminated is growing.  One would think that given the amount of time these laws have been in effect, there would have been some sort of study or review concerning their effectiveness.  To this writer’s knowledge, however, no such study has ever been produced or even attempted.  This is significant not only because of the truly detrimental effect these statutes have on people’s lives, but because the registration and supervision systems cost money to administer and sap State resources that may be put to better use elsewhere.

In any event, every termination motion starts with information.  Each county prosecutor’s office has a Megan’s Law unit.  The first step Megan’s Law counsel must take after meeting with the registrant/parolee is to contact that unit to obtain a copy of the relevant discovery.  If someone was convicted in one New Jersey county but has since moved to another New Jersey county, the correct office to contact is the one in the county where the registrant/parolee currently resides.  A termination motion must also be filed in the county of residence, not the county of conviction.  A registrant/parolee who has moved out of State must obtain their discovery and file their motion in the New Jersey county of conviction.  Once obtained, the discovery must then be reviewed by a New Jersey parole supervision for life attorney to ascertain whether all relevant requirements for termination are met, and for information that must be included in the motion papers.

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The new marijuana legalization/decriminalization laws raise many questions that will be answered only with the passage of time and experience.  Here are some responses to certain questions that will probably arise very quickly:

What should an officer do if they smell marijuana coming from a vehicle during a motor vehicle stop? First, the officer should take the traditional investigative steps to determine if there is probable cause to believe that the driver is operating the vehicle while under the influence, in violation of N.J.S.A. 39:4-50. If so, the driver may be arrested and the vehicle may be searched. If the driver is not found to be under the influence, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify a continued stop, nor probable cause to conduct a search of the vehicle or the person, in a marijuana possession case or even in a low-level (fourth-degree) possession with intent to distribute marijuana case. As a result, the vehicle and occupants must be released once the initial reason for the stop has been addressed.

May an officer initiate or continue a pedestrian stop of an individual based on the officer detecting the odor of marijuana? No, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify or continue a pedestrian stop. In addition, the odor of marijuana by itself does not establish probable cause to conduct a search in a marijuana possession case or even a low-level (fourth-degree) possession with intent to distribute marijuana case. The age of the person being stopped is irrelevant in these situations.

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State v. Nyema, a recent Appellate Division decision, is important because it helps to set parameters for what constitutes a sufficient basis for an investigatory stop.

The case arose from a convenience store robbery.  The police had information that the robbery was committed by two black males who fled on foot.  An officer in the area who was familiar with the location responded.  Less than a mile from the store, he saw a vehicle traveling toward him and away from the store, pointed his spotlight into the vehicle and observed a male and female.  Both occupants reacted in a way that displayed annoyance with the spotlight.  The officer then saw a second vehicle traveling away from the store, shined his spotlight into that car and observed three black males.  He testified that none of them responded in any way to the light, but just stared straight ahead.  Thinking their reaction was “odd”, he decided to stop the vehicle.  Other officers who arrived at the scene had learned that the robbery suspects were wearing black or dark clothing.  The defendant was the front-seat passenger.  While standing outside the vehicle, the officer who made the stop saw dark jackets on the floor behind the driver’s seat.  Dispatch contacted this officer and told him the car was reported stolen.  The vehicle’s occupants were ordered out of the car and arrested, and the officer who stopped the car searched it.  He located, among other things, a red bandana under the hood with a gun wrapped inside.  The occupants were searched and each had cash.  The defendant and another occupant moved to suppress the evidence seized from the car.  At the suppression hearing, the defendant’s father testified that he owned the car, that it was not stolen, and that he had not reported it stolen in the days preceding the stop.  A police officer testified as to a report that the vehicle was stolen.

The motion judge  found that none of the defendants had a reasonable expectation of privacy in the vehicle because it was stolen, and that the stop was lawful because the officer had a reasonable and articulable suspicion that the occupants had robbed the store.  Incredibly, the judge noted that “the racial makeup of the occupants of the vehicle, three black males traveling away from the scene was the reasonable and typical suspicion for the officer to ultimately pull this car over”, and the clothing in the vehicle was lawfully seized under the plain view doctrine.  That part of the suppression motion was denied; however, the judge suppressed the gun because it was taken from under the hood without a warrant. Continue reading ›

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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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Anyone who has been following the news over the past few months understands that serious instances of police misconduct have occurred (and continue to occur) throughout the country.  The manner in which the police have handled George Floyd, Rayshard Brooks, and the protesters in Washington DC and Portland, Oregon, to name some of the more obvious incidents, have all raised serious questions concerning encounters between law enforcement representatives and ordinary citizens.  There is talk in Congress and the state legislatures about reforms ranging from defunding the police to clamping down on the influence of police unions on the disciplinary process to making that process more transparent.

The New Jersey Senate Committee on Law and Public Safety held hearings on police reform in June.  One of the bills that was debated was S2656, which would make public police internal affairs and disciplinary records.  Numerous civil rights and other organizations are supporting the bill.

The bill would remove the Open Public Records Act exception to police internal affairs records and grant the public access to complaints, allegations and charges filed against individual police officers; transcripts and exhibits from disciplinary trials and hearings; dispositions of proceedings; final written opinions and/or memoranda on the disposition and the discipline ultimately imposed, including the agency’s factual findings and analysis of the conduct of the officer(s) that was/were the subject(s) of the hearing; internal affairs records; and video recordings of the incidents underlying the complaint(s), charges, or internal affairs investigation.

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We frequently handle cases where the discovery states that law enforcement has identified our client as being gang-affiliated.  Police agencies frequently collect information on individuals who they think are gang-involved and enter it into a database, which is then used to investigate criminal activity.  Recent experiences in California, however, demonstrate that these databases should not be trusted.

California has long maintained a database called CalGang.  The database, which is not open to civilians and is therefore largely secretive, contains the names and personal information of approximately 80,000 individuals.  Most of the people identified in CalGang are not white, and are suspected of being gang-affiliated.    CalGang has been a source of problems and complaints for years, and there have been calls to reform it or shut it down.

CalGang plainly illustrates the fact that a database is only as good as the information that is entered into it.  A 2016 audit revealed that it contained numerous inaccurate entries, including identifying information for one-year-old children.  People were also entered into the database based upon overly subjective criteria including, without limitation, the neighborhood where law enforcement encountered them or the color of their clothing.  According to the people who run CalGang, wearing a red hat, shirt or sneakers is enough to make you a gang member. Continue reading ›

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Formal criminal proceedings in indictable (felony) matters begin with a prosecutor’s presentation of the State’s case to a grand jury.  A grand jury consists of a body of 23 citizens who listen to the State’s witnesses and review any documents or other materials the State wishes to display, and then decides whether the State has shown that there is probable cause to conclude that the defendant committed a crime.  Probable cause is a “baseline” showing that a crime was committed and the defendant committed it.  This standard is far lower than the “beyond a reasonable doubt” burden of proof standard that the State must satisfy at trial.  If the standard is met, the grand jury votes an indictment, which lays out formal charges.  The 1947 Constitution provides that “[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury[.]”  Thus, the institution of the grand jury has a Constitutional basis, and the fair and procedurally correct operation of the grand jury has Constitutional significance.

The first instance of a grand jury can be traced back to the Assize of Clarendon in 1166, an Act of Henry II of England.  Thus, the roots of the grand jury as an institution of Anglo jurisprudence can be traced back almost a thousand years in our legal history.

There are certain rules that have always been viewed as fundamental to the proper functioning of a grand jury, and secrecy is probably the most important one.  The grand jury operates in secrecy for good reason.  Secrecy protects defendants.  If the defendant is “no-billed” (the panel fails to vote an indictment and formally charge the defendant with an offense), their reputation will hopefully remain intact.  Further, the identities of witnesses who testify for the State (which may include undercover officers or confidential informants) are shielded from disclosure.  Thus, the fact that the grand jury operates in secrecy benefits both defendants and the State. Continue reading ›

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