Seizure of Drugs Found During Illegal Stop Upheld

In Utah v. Edward Strieff, the U.S. Supreme Court upheld the ability of police to obtain a conviction based upon drugs found in his vehicle during an illegal stop. Justice Clarence Thomas provided the decision of the Court holding that an individual’s Fourth Amendment Rights are not violated if an officer, in the process of an illegal stop, finds a warrant for the Defendant’s arrest and the search incident to arrest leads to the discovery of evidence. A residence in Salt Lake City was being monitored following an anonymous report of drug activity. After an officer watched random individuals come and go from the residence, he stopped Streiff and discovered that Streiff had an outstanding warrant for a prior traffic violation. The stop was later determined to be unlawful as the officer lacked probable cause to stop the vehicle and there was no reasonable suspicion with regard to any particular individual. Based on the warrant the officer took Streiff into custody and conducted a search incident to arrest. During the search, the officer found Streiff to be in possession of methamphetamines and drug paraphernalia. Streiff filed a motion to suppress the narcotics based upon the unlawful stop and the matter was litigated through the courts and the Supreme Court granted certiorari to this case based on the Fourth Amendment rights involved. The United States Supreme Court was divided 5 to 3 on the issue. Justice Sonia Sotomayor wrote a dissent indicating her belief that the ruling will have a disproportionate effect on “people of color” although Edward Streiff is a white male. Sotomayor further indicated she believed the decision greatly increase the power of police going so far as allowing them to conduct random stops to check for warrants even if they had no belief any crime was afoot. Sotomayor included that the 8 million open warrants in the U.S. mean many are subject to prosecution based on evidence seized as a result of illegal and pretextual stops and included that such stops “corrode all our civil liberties and threaten all our lives” referring to those “black and brown” people most often targeted. The majority opinion of the court was that the evidence was not “fruit of the poisonous tree” as established in Wong Sun v. United States, 371 U.S. 471 (1963) as it fell under the “attenuation doctrine” set forth in Hudson v. Michigan, 547 U.S. 586 (2006) to the exclusionary rule established in Weeks v. United States, 232 U.S. 383 (1914). Weeks held that evidence resulting from an unlawful search could not be used by the prosecution. The court, in Hudson v. Michigan, held that evidence from an illegal search could be admissible when the connection between the unconstitutional conduct of the police and the discovery of the evidence is “sufficiently remote” or there are “intervening circumstances.” Hudson v. Michigan, 547 U.S. 586, 593. The reasoning offered in Streiff was that the discovery of the warrant was sufficient to break the causal link between the illegal stop and the discovery of the controlled dangerous substances (CDS) thereby rendering the methamphetamines a product of the warrant rather than the illegal stop. The court did leave room for future litigation with regard to good faith actions on the part of the officer finding that in the case of Streiff the officer was at worst negligent. Sotomayor’s dissent indicated that good faith must be rejected when the sole purpose of the stop was to search for evidence which would prove drug activity was going on in the residence. Drug charges can destroy your future and you are subject to greater consequences each time you are convicted of a drug charge. If you are facing drug charges for possession or distribution, you should consult an experienced criminal defense attorney immediately. For more information about controlled dangerous substance (CDS) charges, distribution, possession, driving under the influence charges, paraphernalia or CDS in a motor vehicle visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Racketeering Conspiracy Charges Based On Warrantless Search

Xiomara Gonzales was charged with second-degree racketeering conspiracy (N.J.S.A 2C:5-2 and 2C:41-2(d)); third-degree possession of a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10(a)(1)); first-degree possession of CDS with intent to distribute (N.J.S.A. 2:35-5(b)(1)); and first-degree distribution of CDS (N.J.S.A. 2C:35-5(b)(1)) after police conducted a planned stop of her vehicle with knowledge that there would likely be drugs therein. Gonzales sought to have heroin seized from her vehicle suppressed and the trial court judge denied her motion to suppress based upon the automobile exception and plain view exception to the search warrant requirement. Following the denial of her suppression motion, Gonzales pled to third-degree conspiracy to possess a controlled dangerous substance (N.J.S.A. 2C:5-2 and 2C:35-10(a)(1)). On appeal in State v. Gonzales, the NJ Appellate reversed and remanded the matter concluding that her Fourth Amendment rights had been violated. The record revealed that the Monmouth County Prosecutor’s Office, Newark Police Department Narcotics Unit and the Drug Enforcement Agency (DEA) were conducting investigations into various individuals. Through the use of a wiretap, the agencies received information indicating a suspect would be traveling to Newark to pick up heroin. The intent was to utilize a “wall off” traffic stop whereby the underlying wiretapping remains undisclosed by making the stop appear to be a routine traffic stop. Essex County law enforcement officers began following the suspect and Gonzales as they entered the Newark area in separate vehicles. Officers observed the suspect enter 2 separate locations and, at one point, place large bags obtained at the second location into the rear seat of Gonzales vehicle. Gonzales was then called by the suspect, whose phone was being tapped, and instructed to return to their point of origin without the suspect, as well as how to proceed through the Garden State Parkway toll booth without paying. After the pair separated, the police took their opportunity to “wall off” Gonzales from the suspect and avoid the risk that the suspect would realize his phone was tapped. Essex County officers were specifically told which vehicle to stop based on the information received by investigators from the Monmouth County Prosecutor’s Office by virtue of the wiretap. Upon stopping Gonzales vehicle, officers observed bricks of heroin which had fallen out of the bags onto the rear floor area of defendant’s vehicle and were then in plain view. The trial judge in the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County held that the three prongs of the plain view exception articulated in State v. Johnson, 171 N.J. 192 (2002) were satisfied and upheld the search. The NJ Appellate Division reviewed State v. Hinton, 216 N.J. 211 (2013), Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed.2d 639 (1980), State v. Davila, 203 N.J. 97 (2010) and State v. Hill, 115 N.J. 169 (1989) in holding that a search is presumptively invalid without a warrant issued by a neutral judge after a full recitation of the facts upon which said warrant is being sought or the search falls squarely within one of the well-defined exceptions to the warrant requirement. The Appellate Division held that the plain view exception is applicable, under Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed.2d 564 (1971), only in the event the evidence comes into plain view inadvertently and that items discovered in plain view following pretextual stops are subject to suppression under State v. Damplias, 282 N.J. Super 471 (App. Div. 1995) and therefore the exception was not satisfied. The Appellate Division further considered State v. Pena-Flores, 198 N.J. 6, 2022 (2009), wherein it was set forth that the automobile exception to the warrant requirement is satisfied in the event that: “(1) the police have probable cause to believe the vehicle contains contraband; (2) the circumstances demonstrate an exigency making it impracticable for the police to obtain a warrant; and (3) the traffic stop is ‘unforeseen and spontaneous.” The NJ Appellate Division held that during the time the police were following Gonzales through the Newark area prior to stopping her vehicle they had ample time to obtain a warrant to search her vehicle and their failure to do so did not entitle them to the benefit of the automobile exception to the warrant requirement and reversed and remanded the matter to the NJ Superior Court. Racketeering and gang activity are serious criminal charges with severe penalties including lengthy prison sentences and prohibitive fines. If you are facing these charges you should obtain experienced criminal defense counsel immediately to protect your rights and freedom. For more information about racketeering conspiracy, gang activity, possession of a controlled dangerous substance, possession of CDS with intent to distribute or distribution of CDS visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Warrantless Search And Seizure Results In Suppression Of Weapons And Marijuana

After losing a suppression motion based on warrantless search and seizure, Peter Samuell pled guilty to fourth-degree possession of more than 50 grams of marijuana (N.J.S.A. 2C:35-10(a)(3)) in exchange for the dismissal of multiple other counts of drug possession with intent to distribute and firearms offenses after losing a suppression motion. Police in Trenton received multiple calls regarding the discharge of a handgun. Officers went to the front door of a house believed to be the possible location and surrounded same. While an officer was at the front door speaking to co-defendant Crawford, several others were surrounding the fenced in rear yard. Crawford appeared on the back porch and officers asked that he come to the fence to be frisked but he refused so Officer Bledsoe scaled the fence and detained Crawford. Several officers then entered the house to secure a large number of individuals inside and discovered marijuana, weapons and ammunition in plain view. The entry by police was warrantless and the defendant appealed the constitutionality of the entry in addition to attempting to suppress the evidence obtained as “fruit of the poisonous tree”. Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 9 L. ed.2d 441, 454 (1963). In State v. Samuell, the defendant appealed the warrantless search and the NJ Appellate Division reversed. The police did not have any probable cause to jump the fence onto private property in order to further their investigation of shots fired when they merely suspected criminal activity may be occurring on the property. State v. Jefferson, 413 N.J. Super. 344, 354-355 (App. Div. 2010). The NJ Appellate Division cited Kirk v. Louisiana, 536 U.S. 635 (2002); Payton v. New York, 455 U.S. 573 (1980); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) and State v. Bolte, 115 N.J. 579 (1989) in holding that police must have a search warrant, consent to enter or the facts must fall under the exception to the warrant requirement as a person’s private property offers the highest degree of expectation of privacy from the intrusion of warrantless searches and seizures. The Appellate Division cited to the holding in State v. Sullivan, 169 N.J. 204 211 (2001) that “probable cause requires a ‘well grounded’ suspicion that a crime has been or is being committed” and found that was clearly not the case here where the shots fired could have come from any location in the area with a dog house in the back yard as described by callers. The Appellate Division considered the possibility of exigent circumstances permitting entry but found that none existed in review of the holdings of State v. Valencia, 93 N.J. 126 (1983); State v. Penalber, 386 N.J. Super. 1 (App. Div. 2006); State v. Hinton, 216 N.J. 211 (2013); State v. Holland, 328 N.J. Super. 1 (App. Div. 2000) and other authoritative decisions. The Appellate Division held that it was only upon Officer Bledsoe’s unlawful entry onto the property that the police had probable cause to believe there were firearms and drugs on the property and therefore the evidence was fruit of the poisonous tree which must be suppressed. If you are facing charges and believe evidence against you was obtained in violation of your Fourth Amendment rights against warrantless search and seizure, you should obtain experienced criminal defense counsel to fight your case. For more information about warrantless search, distribution of controlled dangerous substances (CDS), possession, CDS in a motor vehicle or other criminal matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Sentence For Possession With Intent To Distribute Should Fit The Offender At The Time Of Sentencing

Joseph Jafee pled guilty, in the Superior Court of New Jersey, Law Division, Morris County, to third-degree conspiracy to possess a controlled dangerous substance (CDS) with intent to distribute (N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1)) for which the judge imposed a three-year sentence in spite of marked changes in Jaffee’s lifestyle in the year between his guilty plea and sentencing. Jaffee became engaged and acted as a father to his fiancee’s son, remained sober, routinely attended substance abuse meetings and became a counselor to at-risk youth. Additionally, as part of the plea agreement, Jaffee cooperated in the prosecution of his co-defendants. Judge Manahan followed the sentencing guidelines but refused to consider the changes Jaffee had made in the prior year. The NJ Appellate Division affirmed the sentence and Jaffee appealed. In State v. Jaffe, the NJ Supreme Court considered the opinions of State v. Bridges, 131 N.J. 402 (1993) and State v. Hodge, 95 N.J. 369 (1984) with regard to its analysis of uniform sentencing consideration. In addition, the NJ Supreme Court pointed to the fact that the NJ Code of Criminal Justice does allow for consideration of the defendant’s individual situation. Ultimately, the NJ Supreme Court held that, in light of State v. Randolph, 210 N.J. 330 (2012), the Law Division should have assess the defendant “as he stands before the court on the day of sentencing” in addition to simply weighing the aggravating and mitigating factors. After making the determination that Jaffe’s circumstances at the time of sentencing should be considered, the NJ Supreme Court remanded for resentencing in light of the fact that the sentencing judge specifically declined consideration thereof. If you have been charged with possession or possession with intent to distribute a controlled dangerous substance (CDS), it is critical that you obtain experienced criminal defense counsel immediately in order that all exculpatory evidence may be obtained, favorable witnesses may be located, and all appropriate procedures are followed by the police and the prosecution. There are frequently problems with consent to search, warrants, Miranda warnings, inappropriate denial of suppression motions and improper trial procedure which may make a substantial difference in the outcome of your matter. For more information about possession, intent to distribute, CDS, conspiracy and other drug charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Acquittal Of Burglary And Arson But 6-year Sentence For CDS

Michael Naples was indicted for second-degree aggravated arson (N.J.S.A. 2C:17-1(a)), third-degree arson (N.J.S.A. 2C:17-1(b)(2)), third-degree burglary (N.J.S.A. 2C:18-2(a)(1)) and possession of drugs (cocaine) (N.J.S.A. 2C:35-10(a)(1)). Following a fire, surveillance video revealed Naples riding his bicycle past a vacant building into a parking lot then showed the defendant in the lot again shortly after the fire began. Detectives had seen Naples in the past and quickly located him for questioning. During the conversation, the defendant admitted to having a crack pipe, which he provided to officers, and was also found to have a gas cap in his possession. He denied any knowledge of the fire but smelled of gasoline according to the detectives. His motion to suppress the evidence was denied and the jury acquitted Naples of arson and burglary and found him guilty only of the cocaine possession. He was sentence to a discretionary extended 6-year term in prison with a 3-year period of parole ineligibility. In State v. Naples, the NJ Appellate Court heard the defendant's arguments against the trial court's denial of the suppression motion and the extended sentence imposed for the minute amount of drugs. As to the suppression motion, the Appellate Division quoted State v. Pineiro, 181 N.J. 13, 21 (2004) in holding that based on the "facts available to the officer at the moment of the seizure or the search warrant[ed] a man of reasonable caution in the belief that the action taken was appropriate." With regard to the sentence imposed, the Appellate Division found a "clear showing of abuse of discretion", pursuant to State v. Whitaker, 79 N.J. 503, 512 (1979) on the part of the trial court. Although the prosecution moved for an extended sentence under N.J.S.A. 2C:44-3(a) applicable to persistent offenders as Naples was over 21 years old, previously convicted on at least 2 separate occasions of 2 separate crimes committed at different times after attaining the age of 18 years old and 10 years had not passed since the commission of his last release from confinement the Appellate Division held that being a persistent offender is only part of the consideration in sentencing to an extended term under State v. Dunbar, 108 N.J. 80 (1987). In Dunbar, the court held that the court must also determine whether an extended sentence is appropriate to protect the public under State v. Pierce, 188 N.J. 155, 164-65 (2006), weigh aggravating and mitigating factors and determine whether to impose a parole ineligibility period. The Appellate Division determined that the trial court failed to make the appropriate findings and gave too much weight to the controlled dangerous substance (CDS) found in Naples possession. The matter was reversed and remanded to the trial court for resentencing in light of the appropriate criteria and Naples criminal history. Drug charges often heavily sentenced and, if found guilty, you risk incarceration, loss of driver's license and substantial fine. If you are facing drug charges, you should seek experienced criminal defense counsel immediately. For more information about burglary, drug charges, CDS, theft, robbery or other serious criminal charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Rap Lyrics Are Not Evidence Of Prior Crimes

Vonte Skinner was charged with attempted murder (N.J.S.A. 2C:5-1a(3), 2C:11-3a(1)); aggravated assault resulting in serious bodily injury (N.J.S.A. 2C:12-1b(1)); and aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1b(2)); unlawful possession of a deadly weapon (N.J.S.A. 2C:39-5); and possession of a weapon with an unlawful purpose (N.J.S.A. 2C:39-4a) and convicted of attempted murder (N.J.S.A. 2C:5-1a(3), 2C:11-3a(1)); aggravated assault resulting in serious bodily injury (N.J.S.A. 2C:12-1b(1)); and aggravated assault with a deadly weapon (N.J.S.A. 2C:12-1b(2)). Skinner received an extended term of 30 years in prison and subject to certain parole ineligibility and supervision under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2). Skinner’s case arose as a result of the 2005 shooting of Lamont Peterson multiple times at close range with a handgun. Evidence at the scene, including a cell phone belonging to Skinner, led to his arrest. During Skinner’s arrest, while driving someone else’s vehicle, his rap lyrics were recovered on the back seat of the vehicle. Peterson survived and advised the police that Peterson and Skinner both sold drugs for Brandon C. Rothwell. After Skinner joined the team as the third man, Peterson’s profits fell and he began keeping some of Rothwell’s money. Peterson and Skinner both testified that on the night of the shooting they had been in cell phone contact multiple times to arrange a meeting during which Skinner was to buy cocaine from Peterson. When Peterson arrived to meet Skinner, Rothwell was with Skinner. Peterson remembered seeking Skinner and the gun but no other details. Skinner testified that just as Peterson was about to give him the drugs he heard a gunshot and he and Peterson both ran off in different directions. Both sides offered witnesses at trial giving conflicting testimony. The State’s main evidence was the Defendant’s rap lyrics. The jury was not advised that the lyrics were written over several years but did hear an extensive portion of the lyrics and was made aware that the lyrics were in the first person view of a narrator named “Threat” which is a name Skinner has tattooed on his arm. The lyrics described multiple violent acts by “Threat”. The matter was appealed by the Defendant based in part on the reading of Skinner’s rap lyrics to jurors by the prosecution for the purpose of establishing motive and intent on the part of Skinner. The Defendant claimed the lyrics were not properly authenticated and inadmissible under N.J.R.E. 404(b) due to substantial prejudice to defendant outweighing their probative value. The NJ Appellate Division cited State v. Crumb, 307 N.J. Super. 204 (App. Div. 1997) and State v. Koskovich, 168 NJ. 448 (2001) which held that creative writing is merely expressive and does not constitute bad acts themselves and therefore writing comes within N.J.R.E. 404(b). The NJ Appellate Division determined the reading of the lyrics to be prejudicial to Skinner and prohibited by N.J.R.E. 404(b). The NJ Supreme Court heard State v. Skinner and rendered its decision on August 4, 2014. The Justices found that there was no real connection between the lyrics and the murder other than to inaccurately portray his depiction of street violence to establish Defendant’s motive and intent and upheld the decision of the NJ Appellate Division that the lyrics were highly prejudicial and of minimal probative value. The NJ Supreme Court heard the State’s argument that, under Joynes v. State, 797 A.2d 673, 677 (Del. 2002) that the act of creating rap lyrics is not, in and of itself, a “bad act” and should be governed under that standard of relevance under N.J.R.E. 401. The Court disagreed reasoning that N.J.R.E.404(b) is to protect a defendant from evidence which proves little while doing substantial harm. The Court’s primary analysis of admissibility under N.J.R.E. 404(b) was analysis of the 4 prongs of State v. Cofield, 127 N.J. 328, 336 (1992): (1) that the other crime, wrong or bad act evidence pertains to some material issue in dispute in the instant matter; (2) the other crime is similar in kind and reasonably close in time to the offense charged ; (3) proof the evidence of the other crime must be clear and convincing; and (4) any probative value is not outweighed by prejudice. If you are charged with a crime, there are strict limits to evidence which the State may use against you in making its case. To protect your freedom and rights if you are charged with any violent crime, you should consult with experienced criminal defense counsel immediately. For more information about murder, sexual assault, drugs, weapons charges or other serious crimes in New Jersey visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Dilapidated Does Not Mean Abandoned In Warrantless Search

The NJ Supreme Court recently decided State v. Brown, a case in which a warrantless search undertaken by police uncovered a gun, drugs and drug paraphernalia within a residence. After receiving information from two confidential witnesses and a concerned citizen, police conducted surveillance on two non-consecutive days at a run-down residence with the electric meter removed, broken windows, a padlock on the front door, the rear door off the hinges but propped close from the inside and the inside littered with trash. Trooper Kurt Kennedy received information that one of the defendants had a sawed-off shotgun in the residence, was stashing controlled dangerous substances (CDS) inside for distribution and possessed a key he utilized to enter. Kennedy observed, on four separate occasions during one day, individuals approach one of the defendants and provide him with cash and then watched him walk up to the residence, unlock the door, enter and quickly exit the residence and provide the purchasers with suspected CDS. On a second day, Trooper Kennedy observed 14 such transactions. NJ State Troopers arrested four defendants after observing what they considered to be drug activity within an abandoned house within which the defendants were trespassing. Kennedy and the other Troopers made conclusions based on the area being known for crime and general knowledge obtained from being assigned to the area. There were no exigent circumstances apparent, the troopers did not take the time to review the property's deed, tax records, utility records and the like. However, Kennedy did look up Strong, the defendant with the key, and found him listed as residing nearby. Strong also had prior drug convictions. The Troopers also observed similar activity at another residence nearby but did not undertake a warrantless entry of that home as they recognized it to be occupied. Upon obtaining evidence from the warrantless search of the first residence, the police used the "fruit of the poisonous tree" to secure a warrant for the residence they recognized as inhabited. The NJ Supreme Court, in State v. Brown, set forth the presumptiveness against warrantless searches as the backdrop for their review. State v. Johnson, 193 N.J. 528 (2008), State v. Elders, 192 N.J. 224 (2007). The state bears the burden of proving a warrantless search falls within one of several well delineated exceptions to the warrant requirement. State v. Pineiro, 181 N.J. 13 (2004). If the property was truly abandoned, the defendant could not have a possessory interest and therefore no expectation of privacy in the property. The fact that police obtained a key, from one of the defendants, to the padlock on the front door prior to conducting the warrantless search should have indicated that the defendants were exercising control over the property to some degree and alerted them that a warrant was required prior to entry. Under State v. Linton, 356 N.J. Super. 255 (App. Div. 2002) the state would have to show a reasonable belief the house was abandoned and no expectation of privacy could have existed in order to justify the warrantless entry. Before holding the that the state failed to meet its burden of proof due to the NJ State Police failure to determine the property was abandoned or the defendants were trespassers, the court also stated the contrary premise that the police do not need a warrant when observing a stranger inside a structure with a broken front door lock and a door wide open. Clearly the warrant requirement is subject to broad interpretation as it would be difficult to know who is a stranger or an owner in every house in every community and, from the court's example, there is a distinction between doors off hinges and doors wide open with broken locks. The difference between having a search upheld or suppressing evidence obtained from a search rests on small legal distinctions. If the police obtained evidence against you in what you believed to be an illegal search, it is critical that you obtain experienced criminal defense counsel to defend you against the prosecution. For more information about warrantless search, search and seizure, drugs, weapons or other criminal issues in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Drugs Suppressed For Lack Of Probable Cause To Arrest

An individual was seen by police leaning against the porch in front of a closed community center building in an area known for violent crime and drug activity. There was a no loitering sign posted on the building and it was very early in the morning so there was an assumption by the officer the center was closed and the individual had no business there. Upon seeing the police car, the individual, David Gibson, began walking. Officer Wayne Comengo stopped the defendant, Gibson, and based on what Comengo described as Gibson's nervous demeanor he was arrested for defiant trespass (N.J.S.A. 2C:18-3(b)). The search incident to arrest led to the discovery of 13 plastic bags of crack cocaine on Gibson's person. Gibson moved to suppress the drugs at trial based on lack of probable cause to arrest. The trial judge denied the motion finding probable cause to arrest did exist and, therefore, the crack cocaine found on his person during the search was admissible. The Appellate Division affirmed the finding of probable cause and Gibson appealed to the NJ Supreme Court. Gibson's argument was that the crack cocaine must be suppressed due to lack of probable cause as the defendant was merely waiting for a ride at the community center, two blocks from his child's mothers home where he had been visiting. Gibson further contended that because he was merely waiting for a ride he was not loitering. The sign on the building warned against loitering, not trespassing. Loitering and trespassing are different crimes and there was no sign on the community center indicating trespass onto the property was illegal. While trespass prohibits entry onto the property, loitering involves lingering or remaining on the property. In State v. Gibson, the NJ Supreme Court held that the evidence on the record was insufficient to find that probable cause to arrest for defiant trespass existed and the fruits of the search must be suppressed. Drug charges can destroy your future and, if you have prior drug charges, you are subject to harsher sentences each time. If you are facing charges for drug possession or distribution you should consult an experienced criminal defense attorney immediately. For more information about controlled dangerous substances (CDS), distribution, possession, under the influence, paraphernalia or CDS in a motor vehicle visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Gang Murder Conviction Remanded

Quran Goodman, a member of the Bloods gang was convicted murdering (N.J.S.A. 2C:11-3(a)) Rashon Bryant, a member of the Crips gang; third-degree possession of a handgun (N.J.S.A. 2C:39-5(b)); and second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)). Goodman, a member of the "Crips" gang under the name of "Blak", along with other Crips members from the Irvington area, attempted to convince Bryant to join the gang. Bryant was later incarcerated and joined the "Bloods" gang in prison. Upon leaving prison and later release from a half-way house, Bryant sought to meet Goodman at the corner in Irvington they frequently met at in the past, within Crip territory. Goodman shot Bryant in front of multiple eyewitnesses. Essex County Superior Court Judge John C. Kenney found evidence of gang membership to be admissible, in spite of any prejudice it may cause, as long as it is relevant and necessary for establishing motive. The judge considered testimony of Bryant's girlfriend, the State's main witness to the shooting, the fact that Bryant and Goodman were from rival gangs, that the shooting occurred on a Crip corner with Bryant being a Blood and that Goodman was unhappy Bryant became a Blood rather than a Crip. The Judge also refused to suppress a letter written from "Blak" to his cousin "Murda", also incarcerated in Essex County Jail, seemingly seeking to have Bryant's girlfriend, the state's main witness, deterred from testifying. In making that decision, the judge cited State v. Rechtschaffer, 70 N.J. 395 (1976) wherein it was decided "declarations subsequent to the commission of the crime which indicate consciousness of guilt, or are inconsistent with the innocence or tend to establish intent are relevant and admissible." After multiple witnesses from both sides offering conflicting testimony, the judge instructed the jury regarding admissibility. The judge refused to instruct the jury regarding the lesser-included offenses of aggravated manslaughter and reckless manslaughter as, pursuant to State v. Harris, 141 N.J. 525 (1995), State v. Biegenwald, 126 N.J. 1 (1991), State v. Hightower, 120 N.J. 378 (1990) and State v. Rose, 120 N.J. 61 (1990), there is no rational basis for instructing the jury on a lesser included offense when a close range shooting without any other motive presented than murder is in issue. Goodman appealed as to admissibility of multiple witness statements and the judges' refusal to instruct on lesser included offenses and the appellate division affirmed. Goodman then filed a petition for postconviction relief (PCR) which was denied. In his appeal from the denial of his petition for PCR Goodman claimed he received ineffective assistance of counsel both at the trial and appellate levels. The trial judge, without oral argument, found Goodman's petition for ineffective assistance was procedurally barred as it was not raised within his appeals. As there is a strong presumption in favor of oral argument, the appellate panel concluded that unless the presumption is overcome, which it was not in this case, denial of the PCR application without oral argument was inappropriate. The matter was reversed and remanded for reconsideration of Goodman's PCR petition. If you are facing criminal charges it is the state's burden to prove your guilt beyond a reasonable doubt. They must do so in a just and appropriate manner without false accusations, witness interference or prejudicial statements or testimony. If the state cannot prove guilt beyond a reasonable doubt, the judge or jury is required to find you innocent of the charges against you. It is critical you obtain experienced criminal defense counsel to ensure your rights are protected against prejudicial acts by the prosecution or the judge. For more information regarding gang crimes, homicide, assault, drug charges or other criminal issues in New Jersey visit DarlingFirm.com. This blog is for informational purposes only 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.

Eyewitness Identification And Criminal Defense

In State v. Henderson, 27 A.3d 872 (N.J. 2011), an indictment for first degree murder was issued by a grand jury and the defendant was ultimately convicted of manslaughter, aggravated assault, and weapons charges after a jury trial in which much weight was placed on an eyewitness identification. In the underlying matter, a man was shot and killed while another, who had been smoking crack and drinking wine, was held at bay in another room by an armed accomplice. The accomplice was identified by the man he held at bay during a photo lineup in the police station 13 days after the shooting. A Wade hearing was granted to determine the admissibility of the eyewitness ID and applied the Manson/Madison test to determine whether the criteria were met. The trial court decided the ID procedure implemented by the police was not impermissibly suggestive nor did it imply a very substantial likelihood of irreparable misidentification and the eyewitness ID was admitted. The New Jersey Supreme Court considered factors which may affect an individual's memory and divided them into lineup procedures, controlled by police, and estimator variables, including the witnesses age, lighting, lapse of time between the event and ID as well as other similar variables over which the police have no control. The defendant has the initial burden of showing police procedures were "impermissibly suggestive." Unless there is irreparable harm, the court should present the jury with appropriately tailored instructions. The lineup, 13 days after the crime, was presided over by a detective other than the primary investigator, the eyewitness did not make an ID until told by the police to "do what he had to do" so they could be finished and the eyewitness testified he felt pushed to selecting the defendant from the lineup presented. The Court held that suggestive comments of the investigating officers during the identification procedure were substantial enough to entitle Henderson to a pretrial hearing and remanded the case for a hearing that weighs all system and estimator variables, meaningfully deters police from suggestive procedures, permits jurors to knowledgably evaluate the effects of factors on memory and flexible so as to guarantee fair proceedings. Eyewitness identification procedures are exceedingly fallible. If you have been charged with a crime as a result of eyewitness identification, there are multiple ways to attack the state's case against you and it is critical that you obtain an experienced criminal defense attorney immediately to protect your rights. For more information regarding aggravated assault, weapons charges, drug charges and other criminal matters in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.