Jersey DWI & Criminal Defense Law Blog : New Jersey Criminal Lawyer & Attorney : Thomas Martin Law Firm : DUI/DWI, Drug Possession, Felony : Freehold, Monmouth County, New Jersey

The Appellate Division expands illegal search and seizure law in the marijuana possession and intent to distribute case; titled State v. Pompa. On July 2, 2010, the Court held that while a NJ State Trooper had sufficient probable cause to search a tractor trailer he lawfully stopped on the side of a highway, the 30 pounds of marijuana and other evidence found during the search had to be suppressed. Although the Trooper had a right under the closely regulated administrative inspection exception to the warrant requirement, the Prosecutors did not demonstrate that the trooper had exigent circumstances required by New Jersey under the automobile exception to the warrant requirement.

What this means is even if an officer searches your car, they must still demonstrate that there are exigent circumstance that could lead to the destruction of evidence if the officer was delayed by the fact that he had to obtain a telephonic warrant or warrant in person. It is important to remember, that even if the police find drugs, guns or other contraband on you, you may still have a viable defense to your charges if you were illegally stopped or illegally searched. If you have any question, please do not hesitate to contact me at the Law Office of Thomas Hugh Martin, LLC by either telephone (732) 687-6302 or through our website www.jerseycriminallawyer.com.
 

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On July 31, 2009, the Appellate Division in State v. Barrow, held that an ornamental pair of small boxing gloves, hanging from the defendant’s rear-view mirror gave a police officer the necessary  reasonable and articulable suspicion to perform a motor vehicle stop of the defendant’s car. The stop of the defendant’s motor vehicle led to an arrest for possession controlled dangerous substances.

The New Jersey Statute, codified as N.J.S.A. 39:3-74, reads“[N]o person shall drive any vehicle so constructed, equipped or loaded as to unduly interfere with the driver's vision to the front and to the sides.” 

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In a new case that came down before the Appellate Division, a juvenile who is discovered on the streets, in violation of a town curfew ordinance and who cannot provide any identification, may be arrested and detained until identification can be produced and the juvenile released to the custody of his or her parents. The case is titled, State in the Interest of R.M. Further, a juvenile who is arrested and charged for a curfew violation may be searched incident to arrest before being transported to the police station.

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11/13/08 - On Monday, an Appellate Division panel, in a case titled ,State v. Best, ruled that a student’s car or truck which is parked on school property can be searched by school officials if a mere reasonable suspicion exists that illegal drugs or other contraband are contained within the car or truck. This case continues to erode the Constitutional protections against searches on school property. The school officials or police no longer need probable cause or a search warrant for these searches.

This case follows a foundation started by the United States Supreme Court in a case called New Jersey v. T.L.O., 469 U.S. 325 (1985). Essentially, holding that there is a diminished expectation of privacy to which students are subjected to on school property. This diminished expectation of privacy has resulted in rulings that have authorized searches of school lockers and book bags based upon reasonable suspicion.

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Consent searches are yet another exception to the search warrant requirement.  Consent search issues generally arise in drug (N.J.S.A. 2C:35-1, et al) or weapon cases N.J. S.A. 2C:39-1, et al). What is a Consent search? When the prosecutors and/or police can establish that : (1) a person's VOLUNTARY consent to perform a search was properly given, (2) that the person was authorized to give his or her consent to search; (3) and the search was strictly limited to the area and conditions granted by the person giving consent --then any contraband found pursuant to the search is deemed to have been legally obtained and admissible against you at your criminal or municipal trial.

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Illegal Search-Continued from Part 1-dated July 16, 2008

A police search of your car, without a warrant, is presumed illegal or invalid unless an exception to the search warrant requirement applies. As always police need a reasonable and articulable suspicion that you have even committed a motor vehicle offense or a crime. After the stop by police they need a warrant or an exception to a warrant to search your car. These exceptions include,  but are not limited to plain view, plain smell, consent, searches incident to arrest, exigent circumstances, etc. The most widely used of these exceptions is the motor vehicle exception. In the United States Supreme Court case of Carrol v. United States, 267 U.S. 132 (1925), the Court held that if the police have probale cause to believe that the car contains evidence of criminal activity, they can do a warrantless search of your vehicle based upon exigent circumstances. The reason is that the vehicle  is inherently mobile and could lead to the destruction of evidence by the vehicle occupants before a warrant can be obtained.

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Wall- Police officers arrested a Wall resident, age 32, on Tuesday for N.J.S.A. 2C:35-10, possession less than 50 grams of marijuana and N.J.S.A. 2C:36-2 drug paraphernalia. Police arrested the man at around 2:00 a.m. on Tuesday morning. The police allegedly were responding to a report of a suspicious person on or about 18th Avenue. The article was unclear as to how the police found the marijuana and paraphernalia. As set forth in the illegal search category of this blog, if the stop was not based upon a reasonable and articulable suspicion and there was no probable cause to search the individual or his property, the Wall resident could have the drugs and paraphernalia suppressed in court.  
 

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As a general rule, warrantless searches are presumptively invalid and prohibited unless they fall under one of the various exceptions to the search warrant requirement. As set forth in the Supreme Court of New Jersey decision of State v. Hill, 115 NJ 169, 173 (1989) these exceptions relate to:

1) Motor vehicle searches under certain parameters;

2) Consent searches;

3) Exigent circumstances;

4) Search incident to arrest;

5) Plain view/Plain smell and related issues;

6) Investigative and protective measures; and

7) Regulatory and administrative authority.

It is important for you to know that under the Fourth Amendment to the United States Constitution which is applicable to New Jersey law, that: "The right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The burden for establishing the validity of a warrantless search is upon the police and prosecutor. The first exception we will address in the coming week is the "automobile or car exception.

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During the period prior, during, and after you are arrested for and charged with possession of drugs, weapons, stolen property, etc., the police will have likely taken part in some search of your person, pockets, car, home or property. The question you may have, is whether it was a lawful search or illegal search. These answers will rise and fall on whether there is a valid exception to the search warrant requirement. If the search was illegal, counsel for the defendant can file a Notice of Motion to Supress the Evidence and challenge the evidence's admissibilty at trial. In some situations, the only evidence that may link you to a crime is the evidence that the Judge just suppressed.  In this case, you will have a strong argument for a dismissal of your criminal charges. After this brief introduction, I will discuss the seven various exceptions to the search warrant requirement in seven sub articles over the coming weeks.

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