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.

Supreme Court Ruling Expands DNA Use In Criminal Cases

DNA obtained by police during arrest for assault charges is not illegal search and seizure and may be used to convict defendant of rape charges. The defendant, in Maryland v. King, was arrested for first and second degree assault charges in 2009 and as a standard part of their booking process, police in Maryland took a DNA sample by way of buccal swab from defendant's cheek. The DNA matched an unsolved rape from 2003 and defendant was charged with the rape. Defendant sought to have the DNA match suppressed as a violation of his fourth Amendment rights against unreasonable search and seizure. Suppression was denied on the basis that a buccal swab from the cheek is an non-intrusive part of the identification process undertaken during booking and is akin to photographing and fingerprinting. Law enforcement has a massive database of DNA evidence. There is likely to be widespread expansion of this practice following the court's decision in King. Justice Antonin Scalia provided a lengthy dissent to the opinion which includes the warning that the decision of the Supreme Court in King will lead to the taking of DNA and entry thereof "into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. Many states already use methods of DNA collection which go well beyond those in King, including: (1) requesting DNA from uncharged suspects or witnesses to 'allow them to prove their innocence'; (2) implicating those who have DNA matches similar to DNA found at a crime scene in order to see if they will provide information about a family member's actual participation; (3) obtaining DNA samples from going through a person's trash; and (4) filing felony charges to get defendants to trade DNA for a 'lesser sentence' as part of a negotiated plea. In the event you are arrested, it is critical that your rights are upheld throughout the police investigation and procedures. If you have been charged with robbery, burglary, gun or other weapons charges, drug distribution or possession, rape of other sex crimes, conspiracy or any other criminal offense in NJ, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession, distribution or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Will Police in NJ Be Permitted to Inspect Cell Phone Contents At Accident Scenes?

If a newly introduced bill relating to NJ motor vehicle safety is passed, police officers will be able to confiscate cell phones under certain circumstances relating to auto accidents in order to assess motor vehicle penalties. The bill also increases penalties for texting while driving. The bill (S-2783) was introduced May 20, 2013 by Senator James W. Holzapfel (D-Ocean). As introduced, the bill permits any police officer coming to the scene of a motor vehicle accident resulting in death, bodily injury, or property damage to confiscate the driver's cell phone if the officer has reasonable grounds to believe the driver was using the cell phone while driving. The bill includes that the officer may review the cell phone's CALL history, however, the pertinent statute Section 39:4-97.3 of the NJ Motor Vehicle Code defines "Use" of a cell phone as including, "but not be limited to, talking or listening to another person on the telephone, text messaging, or sending an electronic. This means police will be reading text messages and emails, viewing installed applications ("aps") on the phone, memos and anything else they wish to view. This will permit the police the right to trounce citizen's rights against unreasonable search and seizure each time a motor vehicle accident occurs. The bill requires no warrant showing probable cause and merely permits police to make a judgment call as to whether the driver was "operating" a cell phone as well as whether a hands-free device or feature was in use at the time of the accident. Even in the event police determine there was no use of the cell phone, there is nothing in the bill limiting their use of any information obtained from the phone for other purposes such as criminal complaints against the driver. Also, it can be assumed the phones of any passengers in the vehicle will also be searched as police claim that a witness saw the driver pass the phone to a passenger immediately following the accident. Given the use of passwords, swipe patterns, voice and face recognition software and other means of protecting the information on personal cell phones, information contained in cell phones is considered private and falls within the expectation of privacy contemplated under the Fourth Amendment. Other penalties include a fine of $100 for calls, $300 for texts, 2 points and suspension of driving privileges for 3 months. If you have been charged with use of a cell phone while driving or face criminal charges as a result of unreasonable search and seizure in NJ, you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with motor vehicle offenses or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.