Handgun Discovered In Search Will Not Be Suppressed

James J. Scarborough pled guilty to second-degree unlawful possession of a handgun (N.J.S.A. 2C:39-5(b)) after police found a handgun under his seat in a vehicle during an investigatory search based on the odor of burnt marijuana coming from the vehicle's interior. He was sentenced to 5 years incarceration, subject to a 3 year period of parole ineligibility under the Graves Act (N.J.S.A. 2C:43-6c). Police received an anonymous call about a vehicle parked in the rear lot of a closed facility and, upon responding, discovered 2 males in the vehicle involved in what the officer suspected to be drug activity. Upon encountering the driver the officer perceived an odor of burnt marijuana. Ultimately, the driver signed a consent to search form and a handgun was discovered under the passenger seat where Scarborough was sitting along with a magazine and ammunition between the passenger seat and door. Scarborough told police he found the gun in the woods earlier in the day and did not know what to do with it. Scarborough filed a motion to suppress the evidence and his statement, both of which were denied and he then entered into the guilty plea. In State v. Scarborough the defendant appealed and the NJ Appellate Division upheld the denial of the suppression motion finding that a field inquiry under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968) was permissible based on the anonymous call regarding the vehicle. The odor of burnt marijuana then gave probable cause to believe a crime was committed under State v. Vanderveer, 285 N.J. Super. 475 (App. Div. 1995) and State v. Nishina, 175 N.J. 502 (2003). Once the officer had probable cause to believe criminal activity was afoot he was justified, under State v. Carty, 170 N.J. 632 (2002), in seeking consent to search the vehicle. Finally the NJ Appellate Division found no abuse of discretion by the trial judge in determining the Scarborough's statement was not coerced. The matter was, however, remanded as to sentencing factors only. Second-degree unlawful possession of a handgun in NJ carries up to 10 years in prison with a mandatory period of parole ineligibility under the Graves Act. If you are charged with a weapons offense you need experienced criminal defense counsel. For more information about weapons possession, possession of a weapon without a permit, use or possession of a weapon in the commission of a crime, illegal weapons or other weapon related charges in New Jersey 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.

Officer Unqualified To Give Opinion Allows Reversal Of Drug Convictions

Wasan Brockington was convicted of possession of a controlled dangerous substance (CDS), possession with intent to distribute CDS, distribution of a controlled dangerous substance, possession with intent to distribute a controlled dangerous substance in a school zone and conspiracy. The drugs in question were cocaine and heroin. New Brunswick Police were conducting surveillance in a specific location. Sergeant Quick claimed to have witnessed several transactions wherein money was handed by third-parties to the co-defendant, Fitzpatrick, then the defendant would walk down a driveway with the third-party and they would both return within a minute and the third-party would walk off. Quick suspected these were drug transactions and even characterized each transaction as a heroin transaction or a cocaine transaction. However, he made no arrests, had no evidence to test and claimed to be at a substantial distance viewing the transactions through binoculars. At some point, officers closed in and saw Brockington throw down a newspaper with bags of suspected heroin inside and found 2 bags each of heroin and cocaine on the third-party suspected drug buyer leaving the scene. After police seized Brockington and the evidence, he advised that all of the drugs were his and that the co-defendant was innocent. In State v. Brockington, the defendant filed a motion to suppress his statement, to compel the disclosure of the officers’ surveillance point and other pre-trial motions but all were denied by trial judge in the Superior Court of New Jersey, Law Division, Middlesex County. The defendant also objected to the inclusion of Sergeant Quick’s testimony regarding drug transactions he allegedly witnessed as his testimony was elicited by the prosecutor in a manner making him appear to be an expert on the subject of drugs and drug transactions when he offered that he could discern cocaine from heroin at a great distance but the court allowed it. At the conclusion of trial, no limiting instruction to the jury was requested. Brockington was sentenced to 10 years with a 5 year parole ineligibility period. Defendant appealed and the N.J. Appellate Division looked to N.J.R.E. 701as interpreted in the similar matters of State v. McLean, 205 N.J. 438 (2011) and United States v. Garcia, 413 F.3d 201, 215 (2d Cir. 2005), cert. denied, 552 U.S. 1154, 128 S. Ct. 1100, 169 L. Ed.2d 831 (2008) wherein it was held that “a lay opinion must be the product of reasoning processes familiar to the average person in everyday life.” The Appellate Division found the opinion of Sergeant Quick to far exceed the established boundary of lay opinion testimony. The prosecutor also bolstered Quick’s testimony as credible and accurate which further prejudiced the defendant in violation of the strictures set forth in State v. Bradshaw, 195 N.J 493 (2008) and State v. Frost, 158 N.J. 76 (1999). The Appellate Division then reviewed and compared a litany of cases to determine whether testimony about the other alleged transactions in which no arrests were made and from which no evidence was retrieved violated N.J.R.E. 404 (b) and determined it may be used as the probative value was not likely substantially outweighed by prejudice to the defendant. The matter was ultimately reversed and remanded for a new trial based on the likelihood of unfair prejudice toward Brockington. Penalties for drug distribution in NJ are severe and lasting, often including lengthy prison terms with significant parole ineligibility periods. If you have been charged with a drug offense an experienced criminal defense attorney can protect your rights. For more information about drug distribution, possession, possession with intent to distribute or controlled dangerous substances (CDS) visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Limit On Police Requests For Passengers To Exit Vehicle

In State v. Bacome, a pretextual motor vehicle stop led to the discovery of a controlled dangerous substance (CDS) in a vehicle. The NJ Appellate Division affirmed that police must have a “reasonable and articulable belief that their safety is in danger” before they can order passengers to exit a motor vehicle during a traffic stop. On April 11, 2014, Tawain Bacome and another gentleman suspected of drug use and distribution were followed by Woodbridge detectives to Newark. While in Newark, the detectives lost sight of the vehicle and returned to Woodbridge to wait for the vehicle to return. Upon seeing the vehicle coming into town, the detectives also noticed the passenger was not wearing a seatbelt and conducted a stop during which the passenger was ordered from the vehicle. Upon the passenger’s exit from the vehicle, the detectives saw certain evidence of crack use in plain view and used the evidence to obtain the vehicle’s owner’s consent to search. Ultimately, 13 vials of crack were discovered in the vehicle and Bacome was charged with drug possession and intent to distribute. The NJ Superior Court, Law Division, Criminal Part of Middlesex County denied Bacome’s motion to suppress the crack cocaine and other evidence found during the stop. On appeal, the NJ Appellate Division upheld State v. Smith, 134 N.J. 599, 637 A.2d 158 (1994) which set forth the need for police to have “reasonable and articulable belief that their safety is in danger” before they can order passengers to exit a motor vehicle during a traffic stop. Smith is more restrictive on police than the requirements set forth in the U.S. Supreme Court ruling in Maryland v. Wilson, 518 U.S. 408 (1997) wherein it was established that police officers were permitted to instruct passengers to exit a motor vehicle as long as the vehicle is stopped for a lawful reason. The NJ Appellate Division found the stop to be pretextual, based not on the passenger’s failure to wear a seatbelt but rather the detectives’ interest in searching the vehicle for evidence of drug use or distribution. The Appellate Division determined that the evidence should be suppressed and Bacome allowed to withdraw his guilty plea. If you are now facing charges as a result of a warrantless search and seizure, you should obtain experienced criminal defense counsel to represent you against the State’s charges. For more information about traffic stops, search and seizure, warrant requirements, warrantless searches, drug possession or distribution charges or other serious 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.

Alternatives To Jail For Driving While Suspended For Multiple DUI Charges?

Driving while suspended for a second or subsequent driving under the influence (DUI) (N.J.S.A. 39:4-50) charge in New Jersey now carries a 180 day mandatory minimum jail term. Since N.J.S.A. 2C:40-26(b) was enacted on August 1, 2011, drivers sentenced to the mandatory minimum 180 days in jail without parole have been seeking alternative sentences. Under N.J.S.A. 2C:40-26(b), it is a fourth-degree crime to operate a motor vehicle during a period of license suspension for a second or subsequent driving while intoxicated (DWI) conviction or refusal to submit to chemical breath testing in violation of N.J.S.A. 39:4-50.2. In State v. French, 437 N.J. Super 333 (App. Div. 2014) , the trial court sentenced French to 180 days in jail, but allowed for up to 90 days of the sentence to be served in an inpatient treatment facility. The NJ Appellate Division held that sentences other that incarceration were not what the Legislature contemplated in enacting the statute and refused to find opportunity for flexibility in sentencing. In State v. Harris, John D. Harris, III, was sentenced to 180 days but allowed to serve his sentence on the Home Electronic Detention System (HEDS) program. The State appealed the sentence and the NJ Appellate Division upheld the courts finding in French finding that the Legislative intent of N.J.S.A. 2C:40-26(b) was to protect the public from those who would continue to drive after multiple DUI convictions. Although there is likely to be further litigation regarding other alternatives to incarceration, including diversionary programs, for driving while suspended for DWI the present state of the law is that you will serve 180 days in jail for this offense. If you are facing charges of DUI, DWI or driving while suspended for these charges you are facing significant periods of license suspension and the possibility of jail. It is critical that you obtain experienced criminal defense counsel to protect your rights. For more information about DUI, DWI, driving while under the influence of drugs (DUID), driving while suspended for DUI, controlled dangerous substances (CDS) in a motor vehicle or other serious traffic related charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Possession Conviction Reversed On Right To Remain Silent

Jamaal Shockley was indicted for third-degree possession of cocaine, a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10(a)(1)); third-degree possession of cocaine, a CDS, with intent to distribute (N.J.S.A. 2C:35-5(a)(1)); and second-degree eluding police (N.J.S.A. 2C:29-2(b)) after he fled from police when they attempted to get him to stop while he was riding a dirt bike. Shockley fled and the pursuit continued until he fell off the motorcycle and was tackled by officers while attempting to run away. The defendant was patted down for weapons at the scene, his jacket was searched at the police department and his shoes and jacket were again checked prior to leaving the hospital after treatment. While being booked into the county jail, the defendant was again patted down before removing his clothes. Each of the prior searches was negative for weapons or contraband. After Shockley had removed his clothing as part of processing and was already lodged in jail, corrections officer Brooks again searched his clothing outside of his presence and discovered a bag containing 14 bags of cocaine within another small bag in the pocket of the defendant's sweatshirt. In State v. Shockley, the defendant was found guilty of possession of a CDS and eluding police. Shockley was sentenced to 8 years with 4 years of parole ineligibility for the eluding charge and a concurrent 6 year term with 3 years of parole ineligibility for the CDS charges. The defendant appealed on multiple grounds including that corrections officer Brooks testified regarding Shockley's silence when notified by Brooks that the cocaine had been discovered. Although the defendant did not object to Brooks' testimony at trial, reversal is required if it was clearly capable of producing an unjust result. State v. Taffaro, 195 N. J. 442 (2008). The Appellate Division looked to State v. Stas, 212 N.J. 37, 59 (2012) wherein the court considered the privilege against self-incrimination as set forth in N.J.S.A. 2A:84A-19 and N.J.R.E. 503. The court cited Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245, 49 L. Ed.2d 91, 98 (1976) with regard to the Fifth Amendment of the United States Constitution and the protection it offers both pre and post-arrest silence. In NJ, State v. Brown, 118 N.J. 595, 610 (1990) affords an accused the right to remain silent while "in custody or under interrogation." The NJ Appellate Division found the testimony to be plain error as it offered no probative value and was clearly in violation of Shockley's rights to remain silent and a fair trial. The matter was reversed and remanded for a new trial. A drug related conviction in NJ can have serious and lasting consequences including prison, loss of license, substantial fines and the stigma of the conviction or plea can result in the loss of certain employment or educational opportunities. If you are facing charges of use, possession or distribution of CDS, it is critical you consult with an experienced criminal defense attorney immediately to protect your rights. For more information about prescription or non-prescription drug charges for use possession or distribution, controlled dangerous substances in a motor vehicle, DUI and other criminal and serious municipal court matters visit HeatherDarlingLawyer.com. This blog is for informational purposes and not intended to replace the advice of an attorney.

Manslaughter, Not Self-Defense, For Killing An Unintended Victim

For the murder of Lavern Ritch, Robert Davies was charged by a grand jury with murder (N.J.S.A. 2C:11-3(a)-(b)); aggravated manslaughter (N.J.S.A. 2C:11-4(a)(1)); passion/provocation manslaughter (N.J.S.A. 2C:11-4(b)(2)); second-degree reckless manslaughter (N.J.S.A. 2C:11-4(b)(1)); third-degree possession of a weapon with an unlawful purpose (N.J.S.A. 2C:39-4(d)); fourth-degree possession of a weapon by a convicted person (N.J.S.A. 2C:39-7(a)); and possessing a knife under circumstances not manifestly appropriate for its use (N.J.S.A. 2C:39-5(d)). At the close of a trial, Davies was found guilty of second-degree reckless manslaughter, third-degree possession of a weapon with an unlawful purpose, and fourth-degree possession of a weapon by a convicted person. Prior to sentencing, Davies motions for a judgment of acquittal and a new trial were denied by the court. The defendant was sentenced to 20 years in prison subject to a mandatory extended term for manslaughter pursuant to N.J.S.A. 2C:43-6.4(e), a discretionary extended term under the persistent offender statute, N.J.S.A. 2C:44-3(a) and a period of parole ineligibility under the No Early Release Act (NERA) (N.J.S.A. 2C:43-7.2) but offered no clarification of the actual basis for the extended term. Additionally, the sentenced set forth on the record differs from that in the Judgment of Conviction as to whether sentences for the weapons convictions would run consecutive or concurrent to the manslaughter sentence. At trial, in State v. Davies, the defendant represented himself pro se for some time prior to requesting that stand-by counsel assume representation on his behalf. Testimony at trial indicated that Davies had just been punched by Chavez following the exchange of words the restroom of a bar shortly prior to the attack and was chasing Chavez when Ritch, running behind him along with other companions of Chavez touched the defendant on the shoulder from behind at which time the defendant turned around and stabbed Ritch. The defendant claimed to have stabbed Ritch thinking he was defending himself against another attack from Chavez’ companions. Witnesses testified that, when defendant spun around toward Ritch, Ritch put his hands up and stated he was trying to help Davies although some testimony differed from testimony offered to police previously. Witnesses testified to seeing Davies strike Ritch, although no knife was visible, and then seeing Davies immediately resume pursuit of Chavez. Witnesses immediately went to Ritch who was bleeding from his side and said he had been stabbed. His death ultimately resulted from a stab wound to the heart. Davies appealed seeking a new trial due to multiple alleged errors relating to the trial. With regard to the defendant's theory of self-defense, N.J.S.A. 2C:3-4 requires the need to protect oneself from death or serious bodily harm in order to justify the use of deadly force within certain confined areas. The events in the within matter occurred in a public area and did not give rise to a claim of self-defense in the opinion of the NJ Appellate Division. Additionally, under N.J.S.A. 2C:3-3 to 2C:3-8, even if Davies had been justified in using deadly force against Chavez, the Appellate Division determined the reckless and negligent use of deadly force against Ritche was unjustifiable. As such, the trial court did not err in failing to provide the jury with instructions regarding Davies self-defense claims. After ample consideration of Davies other multiple challenges to jury instructions and court procedures, the Appellate Division found there were no errors requiring a reversal of the conviction. The Appellate Division did find that, pursuant to State v. Diaz, 144 N.J. 628 (1996), merger is required of the offenses although the victim was ultimately an unintended victim. The matter was remand the matter for re-sentencing including the requirement that the trial court set forth fully its consideration under the factors of State v. Yarbough, 100 N.J. 627, 643-44 (1985) and the basis for any extended term pursuant to State v. Robinson, 217 N.J. 594, 610 (2014) and State v. Pierce, 188 N.J. 155, 170 (2006). Additionally, the trial court is directed to sentence Davies in consideration of his present lifestyle and conditions as opposed to how circumstances presented him on the date of the original sentencing pursuant to State v. Randolph, 210 N.J. 330 (2012). If you are facing charges of murder you are looking at a sentence of 30 years to life and even for lesser included offenses the sentence can be the same as life in prison depending on your age at sentencing. When confronting such charges, it is imperative that you have experienced and trusted criminal defense counsel at your side to ensure you have the best chance possible in fighting the case and protecting your rights. For more information about murder, aggravated manslaughter, assault or weapons charges in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.