Articles Posted in Drug Cases

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The new marijuana legalization/decriminalization laws raise many questions that will be answered only with the passage of time and experience.  Here are some responses to certain questions that will probably arise very quickly:

What should an officer do if they smell marijuana coming from a vehicle during a motor vehicle stop? First, the officer should take the traditional investigative steps to determine if there is probable cause to believe that the driver is operating the vehicle while under the influence, in violation of N.J.S.A. 39:4-50. If so, the driver may be arrested and the vehicle may be searched. If the driver is not found to be under the influence, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify a continued stop, nor probable cause to conduct a search of the vehicle or the person, in a marijuana possession case or even in a low-level (fourth-degree) possession with intent to distribute marijuana case. As a result, the vehicle and occupants must be released once the initial reason for the stop has been addressed.

May an officer initiate or continue a pedestrian stop of an individual based on the officer detecting the odor of marijuana? No, the new laws are clear that the odor of marijuana, either burned or raw, by itself does not establish reasonable suspicion to justify or continue a pedestrian stop. In addition, the odor of marijuana by itself does not establish probable cause to conduct a search in a marijuana possession case or even a low-level (fourth-degree) possession with intent to distribute marijuana case. The age of the person being stopped is irrelevant in these situations.

Continue reading ›

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What is drug addiction?  How is it to be defined?  Is it some sort of disease, or just another form of illegal conduct?  Commonwealth v. Eldred, a case now before the Massachusetts Supreme Judicial Court, may soon provide guidance on these issues.  This case is important for any criminal attorney who represents addicts, particularly those who are placed on probation and then violate the terms and conditions of their supervision with, as frequently happens, a positive urine screen.  It is therefore worth a comment, even though it is from another jurisdiction.

We have all been down this road many times.  A client has a relatively low-level drug charge, which is typically the latest in a series of minor drug offenses or other petty offenses geared toward obtaining money to buy drugs.  The client’s criminal history and behavior are consistent with addiction.  They plead guilty and are placed on probation (or, in New Jersey, accepted into drug court, which is a form of probation).  One of the terms or conditions of their probation is that they remain drug-free.  In fact, this is always a standard term of probation in these cases.  The client subsequently reports to their probation officer and are asked to, among other things, provide a urine sample.  The sample tests positive and a violation is filed, with the result that the client is now facing the possibility of prison time.

Julie Eldred, a defendant with a relatively long drug history, was sentenced to probation for stealing jewelry to obtain money to purchase narcotics.  Her first urine test – taken only days after her probationary term began – was positive, and she was briefly jailed as a penalty.  In Ms. Eldred’s case, the Massachusetts Supreme Judicial Court will determine whether Ms. Eldred’s relapse warranted the imposition of a criminal sanction.  In doing do, the Court will opine on whether addiction is a mental disease that inhibits the addict’s ability to avoid using illegal substances, or some other kind of condition that will respond simply and directly to rewards and punishments. Continue reading ›

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The New Jersey Supreme Court decided State v. Rosario on June 6, 2017.  The case is important because, among other things, it discusses and distinguishes between the two most common types of police-citizen encounters, which are field inquiries and investigative detentions.

The facts are uncomplicated.  Police received an anonymous tip that defendant was selling illegal drugs from her home in a residential development, as well as from her vehicle.  One night, an officer patrolling the development noticed a moving silhouette in a parked car, which turned out to be the defendant’s vehicle, and decided to investigate further.  He pulled his patrol car up behind, and perpendicular to, the defendant’s car in such a way that the latter was blocked in.  The officer then activated his rooftop alley light which was aimed at the defendant’s car, but did not activate the siren or emergency lights.  The alley light enabled him to see a woman, who turned out to be the defendant, in the driver’s seat.  He observed her moving around in the driver’s seat and leaning toward the passenger’s seat.  He then exited his cruiser and approached the driver’s side door of the defendant’s car.  The window was partially open, and he asked the defendant for her license and other documents.  She produced the requested material, and the officer recognized her as the subject of the previously received anonymous tip and recalled that he had previously arrested her on narcotics-related charges.  He asked the defendant what she was doing, and she responded that she was smoking a cigarette, but the officer did not see a cigarette or butt.  He then asked her why she was moving around and turning toward the passenger seat when he pulled up, and she responded that she was putting on make-up and turned to put it away in her purse.  The officer then asked her how she could do that in the dark, but she did not respond.  He then asked if there was anything in the vehicle he should know about and, according to the officer, the defendant responded that she had the same thing he arrested her for previously.  According to the officer, the defendant then simply reached over to the passenger seat for an eyeglass case.  She opened it and the officer could see a white powdery substance.  The officer then arrested the defendant.  The trial court denied the defendant’s suppression motion, the Appellate Division affirmed, and the Supreme Court granted certification.

The Supreme Court began by recalling that field inquiries, and investigative detentions or “Terry” stops, are two of the three types of encounters that an individual can have with law enforcement.  A field inquiry involves a situation where an individual, under all of the surrounding circumstances, reasonably believes that they cannot simply walk away without answering the officer’s questions.  In an investigative detention, the person reasonably believes that their freedom of movement has been restricted.  Thus, an investigative detention, unlike a field inquiry, is a temporary seizure of the person, and must therefore be based upon the officer’s reasonable and particularized suspicion that the person has engaged, or is about to engage, in criminal activity.  The nature and quality of these encounters are measured from the perspective of the individual who is the subject of the stop. Continue reading ›

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In State v. Bacome, decided January 31, 2017, two Woodbridge detectives observed the defendant-driver and a passenger in a Ford Bronco.  The passenger, who was in the front seat, was later identified as the vehicle’s owner.  The detectives claimed that both men were known drug dealers.  They followed the Bronco to Newark, but lost sight of it in an area purportedly known for drug trafficking.  They then assumed that the Bronco would return to Woodbridge with drugs purchased in Newark.  They spotted the Bronco after returning to Woodbridge, and stopped it when they saw the passenger was not wearing a seatbelt.

Each detective approached the Bronco from opposite sides of the vehicle.  One detective stated that Bacome leaned forward and appeared to be reaching under his seat.  He immediately ordered Bacome out of the car.  The other detective then ordered the passenger from the car, and both men complied.  Each was questioned separately about their trip, and gave contradictory responses.  Since the passenger was now out of the car, the detective was able to to see rolled up paper shaped like a straw and a small piece of steel wool.  Both items were indicative of drug use.  The passenger consented in writing to a vehicle search.  The search yielded crack cocaine and other paraphernalia.  Both men were arrested.

The trial court denied defendants’ motion to suppress the drugs and other seized items, finding that the vehicle stop based upon the seatbelt violation was lawful.  Further, the removal of both men from the Bronco was also lawful because the detectives had reasonable and articulable suspicion of criminal activity. Continue reading ›

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Two years ago, the Obama administration commenced an effort to grant clemency to federal non-violent drug offenders who would have received shorter prison sentences had they been sentenced under subsequently revised advisory sentencing guidelines.  Last week, President Obama granted clemency to 111 federal inmates, 35 of whom originally received life sentences.  Earlier in August, Obama granted clemency to 214 similarly situated federal inmates.  August’s clemency grants raises his total number of commutations to 673 – more than the past 10 presidents combined.

The administration is attempting to address a substantial number of clemency petitions in its final months.  This effort is apparently angering several Republicans in the House and Senate; however, and given the fact that he is finishing his second term, Washington insiders believe that Obama couldn’t care less.  Obama is, in fact, the first sitting US President to tour a prison facility, having visited El Reno FCI in Oklahoma last year where he, among other things, actually met with inmates.  He has also had lunch with clemency recipients.  All indications are that he truly believes in this and, given the end of his tenure, can act without fear of major political repercussions.

As discussed previously on this blog, the clemency initiative was intended to address the sentences of non-violent offenders sentenced under now-amended sentencing guidelines that previously set longer sentences for their particular offenses.  The problem that the administration faces is that several thousand federal inmates, including white collar defendants, defendants convicted of violent offenses and sex offenders, all applied for clemency, thereby flooding the program with petitions. Continue reading ›

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Many defendants focus exclusively on only one issue in their case – Am I going to jail?  If there is even a possibility that this question may be answered affirmatively, follow-up issues concerns the length of the sentence and the facility where it may be served (e.g., state prison vs. county jail).  What often gets lost in the discussions concerning this aspect of a criminal case are the collateral consequences of sentencing.

Collateral consequences are other things that happen to someone with a felony conviction that have little to do with jail or prison time.  These consequences follow a defendant upon release from custody, and can affect virtually every aspect of their life.  A Federal Judge in the Eastern District of New York just wrote a 42-page opinion concerning collateral consequences that should be required reading for every trial judge (Federal and State) in the United States.

Chevelle Nesbeth, the defendant and a college student from Connecticut who apparently had no meaningful prior criminal record, was entering the country at Kennedy Airport.  She was coming from Montego Bay, Jamaica.  In a random bag inspection, customs agents noticed what they viewed as unusually dense handrails on her suitcases.  Further inspection revealed approximately 600 grams (or 2 1/2 pounds) of cocaine, with an estimated street value of $45,000.  Nesbeth elected to proceed to trial, arguing that she received the bags from friends and knew nothing about the drugs.  The jury did not believe her, and convicted her of importing drugs and possession with intent to distribute.  Under the Federal advisory sentencing guidelines, Nesbeth faced a sentence including, among other punishments, a custodial term of 33 to 41 months. Continue reading ›

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The Fourth Amendment to the United States Constitution, as well as the analogous provisions of New Jersey state law, set rules concerning the manner in which officers can search a person, and/or their home, office or vehicle.  This body of law plays a central role in maintaining personal liberty and privacy, and impacts upon the rights and freedoms of every citizen.  However, at least one sitting US Supreme Court Justice (Breyer?) has noted that our Fourth Amendment case law is in “disarray”, or words to that effect.  This stems, at least in part, from the fact that these cases arise in a wide array of scenarios, and are very fact-sensitive.  This creates opportunities for widely divergent interpretations of facts and related applications of law, with the result that existing search and seizure case law is frequently unclear.  Indeed, this area of law demonstrates plainly and numerous individuals can have different views and opinions of the same plot line, and therefore reach different legal conclusions and results.  The New Jersey Supreme Court recently decided State v. Bivins.  This case, which is somewhat refreshing in its clarity, helps to define the limits of search and seizure activities in drug cases where the search is conducted pursuant to an “all-persons-present” search warrant.

In Bivins, the police obtained a no-knock warrant to search a residence believed to be involved in drug trafficking for narcotics and related contraband.  The terms of the warrant allowed the police to search the residence, and “all persons present reasonably believed to be connected to said property and investigation.”  The affidavit supporting the warrant stated, among other things, that the residence was “open for the sale of narcotics twenty-four (24) hours a day, seven (7) days a week.”  One of the state troopers involved in the execution of the warrant asserted that people were “in and out of the house at all times” and there may have been “a lot more occupants in there than [those] seen.”

This trooper also testified that when the police were entering the residence, he learned that two individuals had departed and were heading toward a grey Pontiac.  The trooper approached his designated location and saw a grey Pontiac approximately five or six houses down the block from the target residence.  The trooper also observed two individuals in the car, who were later identified as defendant Bivins and his cousin.  Significantly, the trooper did not personally observe Bivins or his cousin leave the residence and enter the Pontiac.  Bivins and his cousin were removed from the vehicle and searched, and each had 35 bags of cocaine. Continue reading ›

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Every participant in a jury trial has a defined role.  The judge manages the trial and acts as a judge of the law.  S/he will rule on legal issues that arise during pre-trial proceedings, supervise jury selection, rule on issues of law that arise during trial, instruct the jury on the applicable law, and then supervise jury deliberations.  The State and defendant each have their own lawyers who present evidence, challenge and test the evidence of their opponent, and generally advocate their client’s position.  The jury is the judge of the facts.  It listens to the evidence presented in the courtroom during the trial subject to the judge’s legal rulings, and determines whether or not the facts of the case – as presented in accordance with our rules of procedure and evidence – supports each element of each criminal charge that the State has brought against the defendant.  Thus, the jury is the fact-finder.  Its job is to determine the facts of the case.  In a pair of recently decided cases, our Supreme Court re-affirmed that fact-finding is the jury’s province, and that interfering with this function runs roughshod over fundamental principles of our trial process.

In Cain, Hackensack police detectives were conducting a surveillance of defendant’s home.  The detectives, who were in an unmarked vehicle, allegedly observed a hand-to-hand exchange between defendant and another individual on the porch.  They then followed the individual who, upon realizing that he was being followed, dropped an object on the ground.  The detectives retrieved the object, which was found to be crack cocaine.  Several days later, an officer observed another transaction between defendant and one or more individuals in front of defendant’s house, and later recovered two envelopes of heroin.  Testimony indicated that the heroin was purchased from the defendant.  The officers obtained a search warrant for defendant’s house, and recovered cocaine, heroin, a digital scale and baggies.

Like Cain, the facts in Simms were straight-forward and relatively easy to decipher.  Atlantic City detectives conducting a surveillance near a housing project observed a silver car park near a curb.  The driver reclined his seat so that he could not be easily observed, but raised his head periodically to look around.  A red car then parked in front of the silver car.  The driver of the red car approached the silver car and handed an object to the driver of the silver car in exchanged for what was believed to be US currency.  A detective saw the driver of the red car, the defendant, lean into the silver car and then walk away, but did not actually see an exchange.  The detectives did, however, see the defendant place “something” in his back pocket.  Following his arrest, the detectives approached the silver car and observed a bundle of heroin on the back passenger seat, which was later found to have the logo “Sweet Dreams”.  Another detective then approached the red car and saw the passenger stuffing something down the rear of her pants, which was later found to be bags of heroin stamped with the same logo. Continue reading ›

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The NJ Appellate Division recently decided the companion cases of State v. Fitzpatrick and State v. Brister.  These cases focus primarily on the statutory bar date prior to which the State must appeal from a trial court’s denial of the imposition of a Drug Offender Restraining Order, or DORO.  Although the discussion concerning this issue is important, the decision raises another problem which can potentially arise at any sentencing hearing that should be met with a defense objection.

Both defendants pleaded guilty to third degree drug charges and were sentenced to special terms of drug court probation in lieu of custodial terms in State prison.  At sentencing, the  prosecutor – for the very first time in either case – informed the Court and defense counsel that it would seek DOROs against each defendant.  Defense counsel objected to the DOROs because they were not mentioned at the time of the plea.  On December 2, 2014, after briefing and further argument, the trial court denied the imposition of a DORO in either case and sentenced each defendant to drug court probation as contemplated by the plea agreements.  On December 9, 2014, the trial court entered Orders granting the defense motions to preclude in imposition of DOROs in either case.  The State filed Notices of Appeal as to the denial of the DOROs on December 23, 2014.

The Appellate Division began its discussion by recalling that the purpose of a DORO is to prevent drug offenders from returning to the same location(s) where they previously traded in illegal drugs.  The Court also noted that because the State’s efforts to appeal a criminal sentence raise constitutional/double jeopardy concerns, the State can pursue such an appeal only when the sentence is illegal, or when it is expressly authorized by statute.  The DORO statute expressly authorized the State to appeal the denial of a DORO, but required that the Notice of Appeal had to be filed and served within 10 days.  The defendants were sentenced, and the DOROs were originally denied, on December 2, 2014.  The Notices of Appeal were not filed and served until December 23, 2014.  Because the State failed to comply with the statutory 10-day deadline, the Court dismissed the State’s appeals for lack of jurisdiction. Continue reading ›

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The United States houses a quarter of the world’s prison population.  The Justice Department has an annual budget of about $27 Billion, a third of which is spent on operating the federal Bureau of Prison’s 120 facilities.  Further, since 1980, the US population has grown by about a third, while the federal prison population has grown by about 800%.  It is estimated that federal prisons are currently operating at about 40% over capacity.  Much of this resulted from the harsh sentences imposed for drug-related crimes in the 1980s and 1990s, when the approach to this class of offenders was mass-incarceration.

In April, 2014, the United States Sentencing Commission, the body responsible for formulating sentences for federal offenses, generated new guidelines that reduced the penalties for non-violent drug crimes.  It later said that the revised guidelines could be applied retroactively to many inmates serving long sentences for narcotics-related offenses, leading to inmate requests for reduced sentences.

The Commission’s actions on this issue coincide with bipartisan efforts to reverse the mass-incarceration approach to drug crimes.  Indeed, a bipartisan group of senators recently proposed substantial revisions to federal sentences geared toward reducing mandatory minimum sentences and granting early release to inmates serving sentences disproportionate to their offenses. Continue reading ›

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