New Jersey Supreme Court: warrant requirement applies to cell phone tracking

Under a landmark decision issued by the New Jersey Supreme Court in July, police must now obtain a warrant to track criminal suspects using cell phone location data. The decision struck down the Appellate Division’s ruling, which was issued two years earlier and condoned the use of warrantless cellphone tracking of criminal suspects’ general locations. While the Appellate Division had drawn on case law from other jurisdictions to support its decision, the New Jersey Supreme Court based its ruling on the search and seizure provision of the state constitution, concluding that it offers greater protection than the Fourth Amendment and includes protection from intrusive surveillance techniques such as cellphone location monitoring. State v. Earls (Jul. 18, 2013).

If you have questions about this ruling or how it could affect any criminal charges you’re currently facing, call me, Anthony N. Palumbo, New Jersey criminal defense lawyer, at 908-337-0753.

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Search of Newark apartment building was lawful, court holds, despite omission in search warrant

A recent appellate court decision from Essex County found that a warrant to search an entire three-story building was valid despite the fact that the structure contained more than one apartment. Although search warrants for multiple-unit buildings usually have to be limited to the specific apartments to be searched, the judge found that the warrant in this case was valid because the multiple-unit nature of the building was only discovered when the warrant was executed.  State v. Davis, No. A-4412-11T2 (Nov. 6, 2013).

As the court explained, both the state and federal constitutions require search warrants to be based on probable cause and to “particularly describe” the property to be searched. The description mandated by this particularly requirement must be specific enough for police to locate the place to be searched and it must be narrow enough to prevent them from engaging in exploratory searches not supported by probable cause. In the context of multi-unit buildings, this means that search warrants typically have to identify the apartment to be searched and exclude all the other units.

However, an exception to the particularity requirement exists for apartment buildings when the police are unaware of and have no reason to suspect that the building contains more than one dwelling unit. This was exactly what occurred in this case, as the building appeared from the outside to be a single-family dwelling, with one doorknob, one street number, and one mail slot. Although a closer examination revealed that there were two doorbells and multiple gas meters, the police were unable to get close enough surveillance to observe these features prior to submitting the warrant application.

For more information about search and seizure law in New Jersey and to find out whether you could have a viable Fourth Amendment defense in your case, contact me, Anthony N. Palumbo, Esq., at 908-337-7353 for a free consultation.

 

Excerpt: A warrant to search an entire three-story building in Essex County was recently upheld even though the structure contained multiple apartments.

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Union County teenager pleads guilty to faking her own abduction

A Union County teenager admitted in September to faking her own kidnapping and using social media to make investigators believe that she was actually abducted. She pleaded guilty to third degree charges for creating a false public alarm and fourth degree charges of making false reports. According to the Union County prosecutor, she’ll be sentenced to 12 months probation, a six month license suspension, and $2,000 in restitution. She was also ordered to complete 40 hours of community service at the Elizabeth Police and Fire Departments in order to gain appreciation for these agencies and learn how they’re affected by false reports.

Creating a false public alarm is a third degree offense punishable by 3-5 years imprisonment when a person initiates a report or warning of an impending crime or disaster, all while knowing that the report or warning is false and that it’s likely to generate public inconvenience or alarm. The offense can be upgraded to a second degree charge carrying a penalty of up to 10 years in jail if the person plants a fake bomb or if serious bodily injury occurs as a result of the false public alarm.

New Jersey law also makes it a fourth degree crime to either falsely incriminate another person or to make fictitious reports to law enforcement. As in this case, the offenses of false public alarm and making false reports often overlap.

If you’re facing criminal charges in Union County, call me, Anthony N. Palumbo, N.J. Defense Attorney, at 908-337-7353. I’ve been representing clients in criminal cases for more than 30 years and I’ve built strong working relationships with many local police officers, prosecutors, and judges. Call today to schedule a free consultation and find out how my experience and reputation can serve as an advantage in your case.

Union County Criminal Defense Lawyer Anthony N. Palumbo
 

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New Jersey Supreme Court remands case for new hearing on eyewitness identifications

After a landmark decision in 2011 regarding eyewitness identification procedures, the New Jersey Supreme Court revisited the topic in a case decided this summer. State v. Micelli (Aug. 19, 2013). The court used this opportunity to discuss judicial procedures and ultimately held that the appellate court overstepped its authority to evaluate eyewitness evidence. As a result, the court reversed the defendant’s eluding conviction and remanded the case back to the trial level for further deliberations.

The defendant in Micelli was charged with eluding a law enforcement officer after allegedly driving through a DWI checkpoint without stopping. He was identified as a suspect shortly after the incident when police found an abandoned car near the checkpoint that belonged to his mother. A lieutenant then showed a picture of the defendant to the officers who were manning the checkpoint and told them that “this is the guy.” Both officers agreed and made positive eyewitness identifications.

The defendant challenged the admissibility of the identifications, claiming that they were tainted by the single-photo lineup and the lieutenant’s suggestive remarks. The trial judge determined that the evidence were admissible, however, based on the police officers’ advanced training. The appellate division reversed this finding on appeal, agreeing with the defendant that the identification procedures were impermissibly suggestive. The court still affirmed the defendant’s conviction, however, because it determined that, despite their suggestiveness, the eyewitness identifications were nevertheless reliable.

The New Jersey Supreme Court reversed again and held that the appellate court overstepped its authority by ruling on the reliability of the eyewitness evidence. As the court explained, the process for determining whether an out-of-court identification is admissible consists of two steps. First, the judge must determine whether or not the identification procedures were impermissibly suggestive, and if the judge finds that they were not, then the evidence may be used at trial. If the judge determines that the procedures were impermissibly suggestive, on the other hand, the evidence is deemed inadmissible unless the judge finds that the identifications were nevertheless reliable. In this case, the trial judge found that the identifications were not suggestive and thus he did not evaluate the second prong of the test. The appellate division, as a result, should have remanded the case back to the trial judge to make factual findings and weigh the evidence of reliability, instead of conducting this analysis itself.

For more information about eyewitness identification procedures in New Jersey or to discuss other legal matters, call me, Anthony N. Palumbo, New Jersey criminal defense lawyer, at 908-337-7353.

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Middlesex County cocaine conviction upheld but extended-term sentencing ruled improper

State v. Ellis, decided by the New Jersey Appellate Division in May, upheld a Middlesex County jury verdict convicting the defendant of second degree possession of cocaine with intent to distribute. The court found that extended-term sentencing was inappropriate, however, and remanded for resentencing. State v. Ellis, No. A-2395-10T2 (N.J. App. Div. May 24, 2013).
The defendant in Ellis was staying at a motel in Woodbridge Township when he was arrested. He had initially called the police himself after two men forced their way into his motel room and attacked him. After he was taken to the hospital, however, the police found marijuana and cocaine in his room. The defendant was then arrested, despite his protests that the drugs belonged to the men who attacked him.

The defendant in Ellis was staying at a motel in Woodbridge Township when he was arrested. He had initially called the police himself after two men forced their way into his motel room and attacked him. After he was taken to the hospital, however, the police found marijuana and cocaine in his room. The defendant was then arrested, despite his protests that the drugs belonged to the men who attacked him.

The jury convicted the defendant of third degree possession of a controlled dangerous substance and second degree possession with intent to distribute. At sentencing, the trial court then granted the prosecution’s motion to impose a mandatory extended term and sentenced the defendant to 15 years in prison subject to a 7.5 year parole ineligibility period.

On appeal, the court upheld the jury verdict and conviction, but remanded the case for resentencing. As the court explained, the prosecution failed to file a motion for extended-term sentencing within two weeks of the conviction, as required by law. Moreover, although the trial judge had based the defendant’s enhanced sentence on his record of prior drug convictions, the details of those convictions were not entered into evidence. Without any information about the nature or severity of the defendant’s prior convictions, the court ruled that it was inappropriate to issue an extended term sentence.

To speak with an attorney about drug offenses in Middlesex County, contact Anthony N. Palumbo at 908-337-7353. With nearly 40 years of experience as a New Jersey criminal defense attorney, Mr. Palumbo has the negotiation skills, strategic ability, and courtroom eloquence to help get the best possible outcome in your case.

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Charges filed against Middlesex County man who received marijuana delivery

A Middlesex County man was recently arrested for having more than a pound of marijuana shipped to his home. He was charged with possession of marijuana with intent to distribute after South Brunswick police received a tip about the drugs and performed a controlled delivery of the package.

In any marijuana possession case, the prosecution has to prove the element of possession beyond a reasonable doubt. Although possession is usually fairly straightforward, it can be tricky when dealing with mail-order drugs. Anyone can send someone else a package, after all, and simply receiving a package doesn’t prove that the recipient ordered it or knew what was inside it.

To obtain enough evidence to prosecute defendants for receiving drugs in the mail, police usually perform what’s known as a “controlled delivery.” Once they become aware that a package contains drugs—whether due to a tip or because the package was opened and inspected during shipping—a police officer disguised in a postal uniform is sent to deliver the package. The police officer will then ask the recipient to sign for the package, even though most packages don’t require a signature, and if the recipient signs the police can use this as evidence of possession and arrest him. The recipient may still be able to claim ignorance regarding the package’s provenance at trial, but if he accepts the package the police can usually get a warrant for additional evidence such as emails and financial records documenting the purchase.

Controlled deliveries are often effective, but recipients can avoid being arrested by following a few simple steps:
Never order marijuana or other drugs from overseas—international packages are frequently scanned and searched when they go through Customs, but domestic packages are only searched if they’re damaged or obviously suspicious (e.g., marked with drug information or giving off marijuana odors)
Never sign for a package containing drugs—if a signature is required there’s a good chance that the package has been intercepted by law enforcement
Never use a check or credit card to purchase mail order drugs—money orders, bitcoins, and more anonymous payment methods leave less of a paper trail

If you’ve been arrested for receiving marijuana in the mail, contact the Law Offices of Palumbo & Renaud and schedule a free initial consultation with Anthony N. Palumbo at 908-337-7353.

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Evidence Obtained Through Illegal Search Held Inadmissible by New Jersey Supreme Court

The New Jersey Supreme Court ruled in December that police violated a defendant’s Fourth Amendment rights by subjecting him to an investigatory detention based solely on the fact that he was the same race as the man the police were looking for. As a result, drugs found on the defendant were deemed “fruits” of an unconstitutional search and seizure and could not be used as evidence at trial. State v. Shaw, 2012 N.J. LEXIS 1263 (Dec. 13, 2012).

The police officers in State v. Shaw arrived at an apartment building to execute an arrest warrant for a named fugitive, just at the same time as the defendant and another individual were exiting the building. The defendant was detained because he refused to give his name, even though the officers had no basis to believe that he was the subject of their warrant, aside from the fact that the defendant and the fugitive were both black males. Shortly thereafter, other police officers arrived and determined that the defendant was not the target of the arrest warrant. One of the other officers, however, recognized the defendant and knew that he was wanted for an unrelated parole warrant. The defendant was then arrested and a search revealed that he had heroin in his possession.

The court first explained that under the Fourth Amendment, the police may not randomly stop and detain persons without having some particularized suspicion. Although they may conduct a “field inquiry” without any justification, a person may decline to answer any questions during this type of stop and his refusal to answer does not, without more, furnish grounds for his detention. When the subject of a field inquiry reasonably believes that he is not free to leave, however, the field inquiry becomes an “investigative stop,” which must be supported by a reasonable and particularized suspicion of criminal activity.

In this case, the police officers told the defendant that he was not free to leave until he gave his name, even though he was not observed engaging in any suspicious conduct and the only feature that he shared with the fugitive described in their warrant was that he was a black man. In the court’s opinion, this failed to meet the standard of reasonable suspicion required to detain a person against their will. The investigatory detention was therefore unlawful and all of the evidence obtained as the “fruits” of the unconstitutional search was therefore inadmissible.

The court also rejected the state’s contention that the evidence should be permitted under the “attenuation doctrine,” because it was only found after the defendant was determined to be the subject of a separate and unrelated warrant. Although the parole warrant was an intervening factor, the court concluded, it wasn’t sufficient to negate the taint of the initial unlawful detention, especially because the police officers’ tactic of stopping random individuals based on generalized racial descriptions was just the type of flagrant police misconduct that should weigh against application of the attenuation doctrine.

For more information about drug charges or search and seizure violations in New Jersey, or to schedule a free legal consultation, call the Law Offices of Palumbo & Renaud at 1-866-664-8118. Palumbo & Renaud has offices in Cranford, Elizabeth, and Manasquan and handles cases from Middlesex County, Monmouth County, Ocean County, and Union County.

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Disorderly conduct charges ruled baseless in Union County case

A state appellate court overturned the convictions of three out of four defendants who were arrested at a vigil in Union County and charged with various disorderly conduct offenses. State v. Theodore, No. A-2909-10T3 (N.J. App. Div. Jun. 20, 2013).

The circumstances in State v. Theodore involved a 20 year old man who was shot and killed outside his home in Elizabeth. Friends and family formed an impromptu vigil after his murder to comfort his mother, Chantal Theodore, but the crowd grew larger than the house could accommodate and the police were called with complaints about noise and people drinking on the lawn. Mrs. Theodore was then arrested for refusing to allow the police officer to enter her house and disperse the gathering. Her brother and another man were also arrested for disorderly conduct when they told the police officer to leave Mrs. Theodore alone, and her daughter was arrested for assault when she grabbed onto the officer’s arm while he was handcuffing Mrs. Theodore. All four defendants were convicted before the City of Elizabeth Municipal Court.

On appeal, Mrs. Theodore argued that she had a constitutional right to refuse the police officer entrance into her home without a warrant. Because the police officer never entered the house, however, the court found that a warrant wasn’t necessary and upheld the charges.

The court found no basis for arresting the other three defendants, however. There was no evidence to support the charges against Mrs. Theodore’s brother, the court explained, because telling the police officer “he better go” didn’t amount to the type of public alarm or physically dangerous condition required by the disorderly conduct statute. The disorderly conduct charges against the other man were similarly misplaced because all he did was express his opinion that the police officer’s actions were unfair and unjust, and there was no evidence that he “incited” anyone to be uncooperative. Finally, the court dismissed the assault charges against Mrs. Theodore’s daughter because the statute only makes assault a criminal offense if “bodily injury” results, and the police officer testified that he didn’t feel any pain when she grabbed his arm.

If you’ve been charged with disorderly conduct or assault in Union County, call Anthony N. Palumbo at the Law Firm of Palumbo & Renaud at 908-337-7353 to schedule a free initial consultation.

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Entry into defendant’s apartment upheld in Monmouth County marijuana case

The New Jersey Appellate Division upheld convictions for marijuana possession and distribution in a Monmouth County case decided in July. Even though the police officers entered the defendant’s home without a search warrant, the court found that their conduct was justified under the circumstances and did not violate the defendant’s Fourth Amendment rights. State v. Reed, No. A-5124-10T2 (Jul. 11, 2012).

The defendant was apprehended at his apartment during the execution of an outstanding arrest warrant. The steps and entryway were covered in ice when the police officers arrived, and when the defendant answered the door they pushed their way inside before asking his permission to enter. Once inside, the officers saw and smelled marijuana, and upon searching the rest of the apartment they found various paraphernalia, including plastic baggies and a digital scale. Based on this evidence, the defendant was convicted of fourth degree marijuana possession and third degree marijuana possession with intent to distribute.

On appeal from his conviction, the defendant claimed that the police officers violated his Fourth Amendment rights by entering his apartment without first receiving either his permission or a search warrant. The court disagreed, however, finding that the police officers had an implicit, albeit limited, authority to enter the dwelling to execute the warrant for the defendant’s arrest. And while there’s no “bad weather” exception to the Fourth Amendment, the court explained, the dangerous conditions caused by the icy stairs provided additional support for the officers’ conduct. Having entered lawfully, the court concluded, no additional search warrant was required to investigate the marijuana that was in plain view.

Police frequently overstep their authority and conduct warrantless searches based on exaggerated or even fabricated grounds. Although the court in this case determined that the police officers’ conduct was constitutional, the decision might have gone the other way if the stairs hadn’t been so icy or if the circumstances had been just a little different. Indeed, there’s rarely a bright line answer in Fourth Amendment challenges, so having a zealous and experienced defense lawyer can make a big difference. If you have questions about hiring an attorney in your criminal case, call me, Anthony N. Palumbo, Monmouth County marijuana attorney, at 908-337-7353.

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Charges filed against Middlesex County man who received marijuana delivery

A Middlesex County man was recently arrested for having more than a pound of marijuana shipped to his home. He was charged with possession of marijuana with intent to distribute after South Brunswick police received a tip about the drugs and performed a controlled delivery of the package.

In any marijuana possession case, the prosecution has to prove the element of possession beyond a reasonable doubt. Although possession is usually fairly straightforward, it can be tricky when dealing with mail-order drugs. Anyone can send someone else a package, after all, and simply receiving a package doesn’t prove that the recipient ordered it or knew what was inside it.

To obtain enough evidence to prosecute defendants for receiving drugs in the mail, police usually perform what’s known as a “controlled delivery.” Once they become aware that a package contains drugs—whether due to a tip or because the package was opened and inspected during shipping—a police officer disguised in a postal uniform is sent to deliver the package. The police officer will then ask the recipient to sign for the package, even though most packages don’t require a signature, and if the recipient signs the police can use this as evidence of possession and arrest him. The recipient may still be able to claim ignorance regarding the package’s provenance at trial, but if he accepts the package the police can usually get a warrant for additional evidence such as emails and financial records documenting the purchase.

If you’ve been arrested for receiving marijuana in the mail, contact the Law Offices of Palumbo & Renaud at 908-337-7353 to schedule a free initial consultation.

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