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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.

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State v. Nyema, a recent Appellate Division decision, is important because it helps to set parameters for what constitutes a sufficient basis for an investigatory stop.

The case arose from a convenience store robbery.  The police had information that the robbery was committed by two black males who fled on foot.  An officer in the area who was familiar with the location responded.  Less than a mile from the store, he saw a vehicle traveling toward him and away from the store, pointed his spotlight into the vehicle and observed a male and female.  Both occupants reacted in a way that displayed annoyance with the spotlight.  The officer then saw a second vehicle traveling away from the store, shined his spotlight into that car and observed three black males.  He testified that none of them responded in any way to the light, but just stared straight ahead.  Thinking their reaction was “odd”, he decided to stop the vehicle.  Other officers who arrived at the scene had learned that the robbery suspects were wearing black or dark clothing.  The defendant was the front-seat passenger.  While standing outside the vehicle, the officer who made the stop saw dark jackets on the floor behind the driver’s seat.  Dispatch contacted this officer and told him the car was reported stolen.  The vehicle’s occupants were ordered out of the car and arrested, and the officer who stopped the car searched it.  He located, among other things, a red bandana under the hood with a gun wrapped inside.  The occupants were searched and each had cash.  The defendant and another occupant moved to suppress the evidence seized from the car.  At the suppression hearing, the defendant’s father testified that he owned the car, that it was not stolen, and that he had not reported it stolen in the days preceding the stop.  A police officer testified as to a report that the vehicle was stolen.

The motion judge  found that none of the defendants had a reasonable expectation of privacy in the vehicle because it was stolen, and that the stop was lawful because the officer had a reasonable and articulable suspicion that the occupants had robbed the store.  Incredibly, the judge noted that “the racial makeup of the occupants of the vehicle, three black males traveling away from the scene was the reasonable and typical suspicion for the officer to ultimately pull this car over”, and the clothing in the vehicle was lawfully seized under the plain view doctrine.  That part of the suppression motion was denied; however, the judge suppressed the gun because it was taken from under the hood without a warrant. Continue reading ›

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Gun owners must always remember that the issuance of a domestic violence temporary restraining order, or TRO, can result in at least a temporary seizure of their weapons and firearms purchaser identification card.  On the surface, the typical chain of events is fairly straight forward.  A member of the same household complains of an alleged act of domestic violence.  The police arrive and, if previously provided with information concerning weapons in the home, seize the weapons and any related items including ammunition and the gun owner’s FID Card pursuant to a warrant.  The court will then conduct a hearing to determine, among other things, whether the weapons and other items can be returned to the gun owner.  The issue in Hemenway was the standard that should guide a court’s decision to issue to a domestic violence search warrant for weapons.  Specifically, the relevant statute and related cases referred to a “reasonable cause” standard for the issuance of such a warrant, and the Supreme Court was called upon to determine whether this standard passed Constitutional muster under the Fourth Amendment of the United States Constitution and the analogous provision of New Jersey’s Constitution.

The applicant in the underlying domestic violence case requested a TRO barring Defendant from, among other things, from possessing firearms, knives and a taser.  In court, the Family Part judge asked her whether she had an awareness that he had any weapons.  She responded affirmatively and the judge asked what kind of weapons did she claim he had.  She responded “handguns, knives”, to which the court replied “A handgun?”  She then stated “knives, blades”, to which the court replied “handguns?”  She then stated “switchblades”.  She also alleged that Defendant kept the weapons in three cars and his apartment.    Based upon this colloquy, the court entered a TRO and a search warrant to “search for and seize … handguns, knives, and switchblades” from Defendant’s home and three vehicles.  The court did not state a “reasonable cause” or “probable cause” basis for believing that Defendant possessed the weapons, or that they would be located in his home or vehicles.

Two officers met Defendant outside his home and told him that they had a warrant to search his residence for weapons.  Defendant was not permitted to call his lawyer , and was arrested when he refused to allow the officers into his home.  Upon entry, the officers saw what appeared to be cocaine and marijuana.  A detective then obtained a telephonic search warrant for Defendant’s cars and residence.  The search yielded drugs, ammunition and cash, but no weapons.  Defendant was charged with narcotics offenses.  His suppression motion was denied because the trial judge determined that the telephonic warrant was issued based upon probable cause to search the residence, and the domestic violence search stemmed from an independent and adequate basis to the cars.  The Appellate Division affirmed and the Supreme Court granted certification.

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The ability of law enforcement to access the cell phone content of a criminal defendant has received considerable attention in recent years.  The issue has been the same in case after case.  If the cell phone is seized as part of an investigation, the security settings, such as passcodes, shield the content from law enforcement.  The New Jersey Supreme Court recently considered whether a court order requiring a criminal defendant to disclose his cell phone pass codes violates his right to not incriminate himself pursuant to the Fifth Amendment of the United States Constitution, and/or New Jersey’s statutory or common law right against self-incrimination.

Quincy Lowery was the target of a State narcotics investigation.  During the investigation, he informed detectives that Robert Andrews, a former Essex County Sheriff’s Officer, had given him information concerning the investigation, and had told him how to avoid criminal exposure. Andrews and Lowery had known each other for about a year, and belonged to the same motorcycle club.  Lowery informed detectives that he regularly communicated with Andrews over FaceTime.  During one of these communications, Andrews told Lowery to get rid of his cell phones because members of law enforcement were doing wiretaps after the arrest of members of the Crips gang.  Lowery told Andrews that he thought he was being followed by the police, and texted Andrews the license plate number of one of the vehicles.  Andrews then informed him that the plate number belonged either to the Essex County Prosecutor’s Office or Sheriff’s Department.  He also instructed Lowery to put his car on a lift to see if it had a tracking device attached to it.  After seeing a picture from Lowery of someone who was following him, Andrews told Lowery that the person was with the Prosecutor’s Office.  Lowery’s allegations were corroborated by his cell phone records.

The State obtained warrants for cell phone numbers belonging to both Lowery and Andrews.  The warrants showed 114 calls and text messages between the two over a period of six weeks.  Andrews was indicted for official misconduct, hindering apprehension and obstruction of justice.

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Anyone who has been following the news over the past few months understands that serious instances of police misconduct have occurred (and continue to occur) throughout the country.  The manner in which the police have handled George Floyd, Rayshard Brooks, and the protesters in Washington DC and Portland, Oregon, to name some of the more obvious incidents, have all raised serious questions concerning encounters between law enforcement representatives and ordinary citizens.  There is talk in Congress and the state legislatures about reforms ranging from defunding the police to clamping down on the influence of police unions on the disciplinary process to making that process more transparent.

The New Jersey Senate Committee on Law and Public Safety held hearings on police reform in June.  One of the bills that was debated was S2656, which would make public police internal affairs and disciplinary records.  Numerous civil rights and other organizations are supporting the bill.

The bill would remove the Open Public Records Act exception to police internal affairs records and grant the public access to complaints, allegations and charges filed against individual police officers; transcripts and exhibits from disciplinary trials and hearings; dispositions of proceedings; final written opinions and/or memoranda on the disposition and the discipline ultimately imposed, including the agency’s factual findings and analysis of the conduct of the officer(s) that was/were the subject(s) of the hearing; internal affairs records; and video recordings of the incidents underlying the complaint(s), charges, or internal affairs investigation.

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We frequently handle cases where the discovery states that law enforcement has identified our client as being gang-affiliated.  Police agencies frequently collect information on individuals who they think are gang-involved and enter it into a database, which is then used to investigate criminal activity.  Recent experiences in California, however, demonstrate that these databases should not be trusted.

California has long maintained a database called CalGang.  The database, which is not open to civilians and is therefore largely secretive, contains the names and personal information of approximately 80,000 individuals.  Most of the people identified in CalGang are not white, and are suspected of being gang-affiliated.    CalGang has been a source of problems and complaints for years, and there have been calls to reform it or shut it down.

CalGang plainly illustrates the fact that a database is only as good as the information that is entered into it.  A 2016 audit revealed that it contained numerous inaccurate entries, including identifying information for one-year-old children.  People were also entered into the database based upon overly subjective criteria including, without limitation, the neighborhood where law enforcement encountered them or the color of their clothing.  According to the people who run CalGang, wearing a red hat, shirt or sneakers is enough to make you a gang member. Continue reading ›

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Formal criminal proceedings in indictable (felony) matters begin with a prosecutor’s presentation of the State’s case to a grand jury.  A grand jury consists of a body of 23 citizens who listen to the State’s witnesses and review any documents or other materials the State wishes to display, and then decides whether the State has shown that there is probable cause to conclude that the defendant committed a crime.  Probable cause is a “baseline” showing that a crime was committed and the defendant committed it.  This standard is far lower than the “beyond a reasonable doubt” burden of proof standard that the State must satisfy at trial.  If the standard is met, the grand jury votes an indictment, which lays out formal charges.  The 1947 Constitution provides that “[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury[.]”  Thus, the institution of the grand jury has a Constitutional basis, and the fair and procedurally correct operation of the grand jury has Constitutional significance.

The first instance of a grand jury can be traced back to the Assize of Clarendon in 1166, an Act of Henry II of England.  Thus, the roots of the grand jury as an institution of Anglo jurisprudence can be traced back almost a thousand years in our legal history.

There are certain rules that have always been viewed as fundamental to the proper functioning of a grand jury, and secrecy is probably the most important one.  The grand jury operates in secrecy for good reason.  Secrecy protects defendants.  If the defendant is “no-billed” (the panel fails to vote an indictment and formally charge the defendant with an offense), their reputation will hopefully remain intact.  Further, the identities of witnesses who testify for the State (which may include undercover officers or confidential informants) are shielded from disclosure.  Thus, the fact that the grand jury operates in secrecy benefits both defendants and the State. Continue reading ›

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Last week, the New Jersey Supreme Court handed down its decision in Matter of Registrant HD/Matter of Registrant JM.  This decision is important for anyone seeking relief from their Megan’s Law and/or CSL/PSL obligations.

One of the requirements for relief from Megan’s and CSL/PSL is that the defendant must have remained offense-free for fifteen years from the date of their conviction (typically the date of their sentence), or from the date that they were released from custody, whichever is later.  The question before the Court was whether HD and JM, each of whom committed new offenses during their fifteen-year period but then remained offense free for fifteen years from then, could be taken off Megan’s.  Put somewhat differently, the Court was asked to determine whether the new offense(s) causes the fifteen-year clock to start to run again, or if it bars these defendants from seeking relief because they each committed a new offense within the initial fifteen-year period.  The Appellate Division had found that the new offense had started the fifteen-year period to commence again and that the defendants were therefore eligible for relief because they remained offense-free for another fifteen years following the subsequent offense.  In light of a thorough analysis of the relevant statutes, the Supreme Court reversed.  Thus, an offense committed within the fifteen-year period will bar relief.

We firmly believe that these statutes are onerous, needlessly burdensome, and counterproductive insofar as they actually prevent defendants from starting life again as positive and productive citizens.  Additionally, and so far as we know, there is no empirical date which demonstrates that anyone actually benefits from Megan’s Law and CSL/PSL.  There is no proof that it really makes communities safer.  However, and given the number of people who consult with and retain us on these issues, and in light of this new decision, we believe this is a good time to review the basic criteria for removal. Continue reading ›

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Juveniles who have been taken into custody in connection with a criminal charge present special procedural issues.  Ideally, a parent or guardian has to be present before the police can question them.  Alternatively, the police have to show that they used their best efforts to contact a parent or guardian before any questioning can occur.  The purpose of this is so that the parent or guardian can assist the juvenile in making an intelligent and informed decision concerning whether to waive their Miranda rights and respond to questions asked by law enforcement.  State v. AA, which our Supreme Court decided in January, 2020, expands the protections afforded juveniles concerning this very sensitive issue.

The two questions before the Court were as follows: Whether law enforcement engaged in the functional equivalent of interrogation when they permitted the juvenile’s mother, who had been called to the police station, to speak with her 15-year-old son who was in custody before the police had read the juvenile his Miranda rights; and Did the fact that AA and his mother had no privacy during their conversation necessitate the adoption of a “private consultation” rule requiring the police to give the juvenile and the adult a meaningful opportunity to speak privately before asking the juvenile whether they wish to waive their Miranda rights?

The Court held that the actions of law enforcement in this case constituted the functional equivalent of interrogation; accordingly, the unwarned statements that AA made to his mother should have been suppressed.  Further, the Court expanded the protections afforded juveniles by now requiring the police to advise a juvenile in custody of their Miranda rights in the presence of a parent or guardian before the police ask the juvenile any questions, or before the parent or guardian speaks with the juvenile.  The police must then give the parent or guardian and the juvenile a meaningful opportunity to speak privately concerning whether or not the rights will be waived and questioning may proceed.

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Two issues regarding the right to privacy, and its potential impact on criminal cases, appeared in the news recently.  These issues have no relationship to each other, but can both be highly relevant to criminal cases.

The first involves a your man who was living alone in a South American country.  He was extremely poor and his family was basically gone.  Having absolutely no personal resources for even necessities, he became involved with a local gang.  To be clear, he was not one of the leaders, or even a major participant in gang activities, acting instead as the occasional lookout.  Significantly, he really did not want any part of the gang lifestyle.  He eventually fled his home country and sought asylum in the United States.  He was afraid to return to his country after leaving, because of his well-founded belief that the gang he was previously involved with may kill him.

Part of the admission process here involved meeting with a mental health therapist whose position was government-related.  The therapist took notes of their meetings, which included discussions of his gang-related activities.  Without any prior knowledge or consent of the young man or the therapist, these notes came to light in connection with a hearing that was held to determine whether he could be admitted to the United States.  The notes supported the conclusion that he was gang-involved in his home country, which will probably end his quest for admission to the United States and force his deportation back to his home country. Continue reading ›

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