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

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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LAKEHURST, NJ: A resident of Toms River was arrested and charged with N.J.S.A. 2C:35-10 and N.J.S.A. 2C:36-2, which are possession of less than 50 grams of marijuana and possession of paraphernalia after being stopped for an equipment violation due to a broken tail light early Thursday morning along Route 70.

Police said the man was pulled over by Ptl. Jeffrey Emmons at 1:35 a.m. As the officer approached the car he smelled burnt marijuana. Under search and seizure law, if the tail light was broken, the cops had a reasonable and articulable suspicion to stop his vehicle for an equipment infraction. Thereafter, there was probable cause to search the vehicle under the "plain smell" doctrine. However, to truly determine if the search and finding of the marijuana was valid, one would have to view the police reports. If there is an issue with the legality of the search, the man can file a Notice of Motion to Suppress Evidence.


 

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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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