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

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks