Handgun In Plain View? Prove it!

Jarrell Williams was convicted of second-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b) after an officer allegedly saw a handgun in plain view on the floor of his vehicle during a motor vehicle stop. At all times during the proceedings, Williams maintained that he was unaware that the vehicle, recently purchased by his mother, contained a handgun. Williams also maintained that the gun was not in plain view on the floor of the vehicle near the driver’s seat. The facts collectively presented at trial in State v. Williams are that 4 men, including the defendant, entered the vehicle and smoked marijuana then the defendant pulled the vehicle out of the driveway just as two plain clothed police officers came down the street at which point Williams immediately pulled over and turned off the vehicle. The officers claimed that the location and actions of the defendant and the vehicles’ other occupants gave rise to suspicion and the officers turned around. Seeing the officers’ vehicle turn around, all 4 occupants exited the vehicle before the officers engaged them in conversation. Conflicting accounts of the vehicle’s ownership were offered by occupants and Officer Brown approached the vehicle, with its doors open, to verify the registration. The officer’s testimony was that he observed a marijuana cigarette and plastic bag and, upon going to retrieve same, noticed the pistol on the floor in front of the driver’s seat. The 6th Amendment of the United States Constitution and Article 1 of the New Jersey Constitution establish and protect a defendant’s right to present a complete defense including confrontation of witnesses. Several cases including State v. Garron, 177 N.J. 147 (2003), State v. Budis, 125 N.J. 519 (1991), State v. Sugar, 100 N.J. 214 (1985), State v. Crudup, 176 N.J. Super. 215 (App. Div. 1980) and State v. Guenther, 181 N.J. 129 (2004) have upheld this right but within the constraints of N.J.R.E. 611(a) and N.J.R.E. 401 which afford the court discretion of control over the trial. The N.J. Appellate Division ultimately decided that the jury should not be placed in the position of determining the constitutionality of a search and seizure but that Defense counsel’s line of questioning was not in danger of placing them in that position and was instead intended to determine whether the officer had a predetermined purpose in offering the statements he had made and was an attempt to introduce motive on the part of the officer to testify in a certain manner. The NJ Appellate Division determined that the defendant’s right to cross-examine the officer was violated and that, due to the possible influence this may have had on the decision of the jury, the matter was remanded for a new trial. Weapons offenses are subject to severe punishment including incarceration for 5-10 years for many such offenses. If you are charged with unlawful possession of a weapon, it is critical that you obtain experienced criminal defense counsel to represent you. For more information about possession of a handgun without a permit, unlawful possession of a weapon, possession of a weapon while on parole or probation, possession of a weapon during a drug related offense or other serious weapons charges visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Man Is Charged With Possession Of A Firearm After Calling 9-1-1 To Aid Another

Donald Peterson was charged with second-degree possession of a firearm (N.J.S.A. 2C:39-7(b)) and fourth-degree possession of a machete (N.J.S.A. 2C:39-7(a)) as a result of being a good samaritan. Peterson called the Hillsborough Police to report an unconscious male in front of his residence. Ultimately a murder investigation ensued with regard to the man discovered, based on the suspicious death of the 16 year old male. The Somerset County Prosecutor’s Office obtained a warrant to search the residence of Peterson for evidence that the victim had been in Peterson’s residence including “hair, fibers, fingerprints, bodily fluids, DNA, and other microscopic/forensic evidence. During multiple interviews with police officers, after Miranda warnings, Peterson admitted to having a criminal history as well as possessing weapons. While searching Peterson’s residence, the police discovered a Winchester rifle and a machete which Peterson was prohibited from possessing under N.J.S.A. 2C:39-7 as a certain person prohibited from possessing weapons due to his prior criminal history. Although no evidence was discovered liking Peterson to the death of the man he discovered on his sidewalk, he was indicted for the weapons possessions charges. In State v. Peterson, the defendant sought to suppress the discovery of the weapons in light of the fact that, although discovered in plain view during the search, discovery was not inadvertent given his prior notice to officers of his possession of same. Over the State’s objection, the NJ Superior Court, Law Division- Criminal Part, Somerset County suppressed the weapons in reliance on State v. Bruzzese, 94 N.J. 210, 236 (1983) holding inadvertent discovery to be an essential element for application of the ‘plain view’ exception to the search warrant requirement. The NJ Appellate Division reviewed the matter and found the inevitable discovery doctrine to apply in this case involving a search warrant for evidence establishing the victim’s pre-mortem presence in Peterson’s residence. Pursuant to State v. Marshall, 199 N.J. 602, 611 (2009), a lawful search should be limited to the areas likely to lead to discovery of the intended object of the search. In State v. Sheehan, 217 N.J. Super. 20 (1987), the court determined that when a search warrant applies to the entire premises, any item discovered therein is lawful as within the scope of the warrant. The court determined that State v. Gamble, 218 N.J. 412, 412 (2014) provided the N.J. Supreme Court with the opportunity to strike down or limit inadvertent discovery doctrine yet the justices did not seize upon said opportunity. The court turned to State v. Sugar, 108 N.J. 151, 156-157 (1987) establishing proof required by the State to invoke the inevitable discovery doctrine as follows: “(1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.” Based on Peterson’s statements to police regarding his criminal history and his possession of the rifle, a warrant would have properly issued for a search for the weapon wholly independent of the warrant related to whether the victim had been present in Peterson’s residence pre-mortem. The NJ Appellate Division found the inevitable discovery doctrine to apply in this matter and reversed the trial court’s suppression of the rifle. If you are facing weapons charges, you should seek experienced criminal defense counsel immediately to protect your rights. For more information about weapons possession, use or possession of a gun in the commission of a crime, possession of a handgun without a permit, certain persons not to possess weapons or weapons charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Drug Suppression Motion For Warrantless Search Denied

In State v. Salladino the defendant was indicted for 3rd theft of movable property (N.J.S.A. 2C:20-3) and 3rd degree possession of a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10a1). The defendant won a suppression motion relating to the Oxycodone found during the warrantless search by police. The prosecution filed an interlocutory appeal and the N.J. Appellate Court determined that, although the Oxycodone was found during a search of the defendant's person exceeding the scope of Terry v. Ohio, 392 U.S. 1 (1968), the drugs would have inevitably been discovered when the defendant was searched incident to the arrest for the robbery charges. According to the court's holding in State v. Sugar, 100, N.J. 211 (1985) if the evidence would have inevitably been discovered as a result of an independent and predictable circumstance, it remains admissible even if seized by other unlawful means. The Appellate division held that the suppression motion should not have been granted and remanded for further proceedings. Following a call from a robbery victim, police located 2 suspects in the vicinity matching the description given by the victim. The officer in charge of the investigation ordered that the suspects be brought before the victim for a show-up identification. Prior to transporting Salladino to the show-up, a police officer conducted a pat-down search of the defendant to ensure the defendant has no weapons. During the frisk, the officer felt a "hard bulge" and retrieved a pill bottle without a label or lid which contained 83 Percocet pills. The officer seized the pills but made no arrest regarding the Percocet. The suspects were positively identified by the victim during a show-up identification and they were arrested. At no time between the stop and the arrest could the defendant have removed the pills from his person without notice by the police, therefore, the Percocet would have been inevitably discovered during the search incident to arrest even though retrieving the pill bottle from the defendant's person exceeded the scope of a Terry stop as there was no reasonable basis to conclude the defendant was armed and the officer never claimed he believed the "hard bulge" was a weapon. If you are facing drug charges and believe evidence obtained against you may have been obtained in violation of your rights, you should consult with an experienced criminal defense attorney immediately. For more information about controlled dangerous substances, robbery, warrantless searches, CDS in a motor vehicle or other criminal issues in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.