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Monmouth County Criminal Lawyers Blog

NJ Warrantless Motor Vehicle Searches Now Easier for the Police

Posted by David Schwartz on September 28, 2015  |   No Comments »

Overturning its own decision from six years ago, the New Jersey Supreme Court has made it easier for police to conduct motor vehicle searches without the need for a warrant.

In its September 24, 2015 decision in State v. Witt, the Court decided that its prior standard – which required both probable cause and exigent circumstances – was unworkable, finding that too many drivers were being asked to sign consent to search forms. In deciding Witt, the Court returned to a standard which allows a motor vehicle search without a warrant when the police have probable cause to believe that the car contains contraband or criminal evidence and where the conditions leading to a determination of probable cause are unforseeable and spontaneous.

The Court found that the prior standard (as set forth in State v. Pena-Flores), which they hoped would lead police to obtain telephonic warrants and cut down the length of motor vehicle stops, had the opposite effect, and increased the risk of injury and death from passing vehicles. They further found that the multi-factor exigency test “too complex and difficult for a reasonable officer to apply to fast-moving and evolving events that require prompt action.”

The standard adopted by the Court is utilized in most other jurisdictions. However, the Court declined to utilize the standard set by the U.S. Supreme Court, finding it inconsistent with the protections granted by the New Jersey State Constitution.

The Court held: “Clearly, the use of telephonic search warrants has not resolved the difficult problems arising from roadside searches, as the court expected when it decided Pena-Flores. . . We adopt this approach under our state constitution because it is a reasonable accommodation of the competing interests between the individual’s right to be free from unreasonable searches and law enforcement’s investigatory demands.”

The defendant in Witt was stopped for using his high beams, and was subsequently arrested for drunk driving. A search of the vehicle for alcohol resulted in the recovery of a handgun. The evidence was suppressed by the trial court. The Appellate Division affirmed the decision, as did the Supreme Court. In so affirming, the Court stated that its new rule would only be applied to cases arising after its September 24th opinion.

For individuals who are facing state criminal charges or sentencing in the criminal courts of New Jersey, or federal criminal prosecution or sentencing in the United States District Court for the District of New Jersey, or who are appealing their criminal matters before the New Jersey Appellate Division, the Supreme Court of New Jersey, or the United States Court of Appeals for the Third Circuit, it is critical to have an experienced state and federal New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all State, Juvenile, and Municipal criminal courts in New Jersey, as well as the Federal Courts of New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460, email us at info@schwartzposnock.com, or visit our webpage at www.schwartzposnock.com to schedule an appointment.

NJ Marijuana Defense: Odor of Marijuana Justifies Search Despite Medical Use Law

Posted by David Schwartz on September 25, 2015  |   No Comments »

While medical marijuana is legal in New Jersey, its odor still creates probable cause for the police to search or arrest, according to a recent NJ appeals court opinion.

In State v. Myers the court noted that possession of marijuana remains a criminal offense for those who have no medical need nor physician authorization for marijuana use.

In ruling, the NJ Appellate Division stated: “We hold that absent evidence the person suspected of possessing or using marijuana has a registry identification card, detection of marijuana by the sense of smell, or by the other senses, provides probable cause to believe that the crime of unlawful possession of marijuana has been committed.”

The defendant, George Myers, was convicted of possession of a gun, found pursuant to a search of his car after officers smelled burning marijuana. Myers filed a motion seeking to exclude the drugs and the gun from use as evidence.

The motion was denied, and Myers appealed. He argued that marijuana is not considered “per se contraband” because of the 2010 New Jersey Compassionate Use Medical Marijuana Act. He further argued that since marijuana is no longer per se contraband, the smell of burning marijuana cannot justify a police search or arrest.

The Court held that the Compassionate Use Medical Marijuana Act, while providing a limited authorization for those with medical need to possess marijuana, did not permit those who had no medical need to use or possess marijuana in any quantity.

To use medical marijuana, a medical doctor must certify its necessity for the patient, and the patient must have his or her name entered into a statewide registry. Further, the patient must be provided with an identification card which may be used at an alternative treatment facility. Otherwise, possession and use of marijuana remains a criminal offense in New Jersey.

Myers also argued that the smell of alcohol and the smell of marijuana are intrinsically alike, although the smell of alcohol does not justify a warrantless search. Because the purchase and consumption of alcohol is legal, the Court rejected that argument.

For individuals who are facing state criminal prosecution or sentencing in the criminal courts of New Jersey, or federal criminal prosecution or sentencing in the United States District Court for the District of New Jersey, or who are appealing their criminal matters before the New Jersey Appellate Division, the Supreme Court of New Jersey, or the United States Court of Appeals for the Third Circuit, it is critical to have an experienced state and federal New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all State, Juvenile, and Municipal criminal courts in New Jersey, as well as the Federal Courts of New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460, email us at info@schwartzposnock.com, or visit our webpage at www.schwartzposnock.com to schedule an appointment.

New Jersey Expungement: Supreme Court Restricts Access

Posted by David Schwartz on August 13, 2015  |   No Comments »

Obtaining a NJ expungement just got harder. In a decision dated August 10, 2015, the Supreme Court of New Jersey held that the “crime spree” exception, allowing expungement of multiple charges which occurred near in time and which were resolved by guilty plea or sentencing on the same day, will no longer be permitted. This overrules the holding of State v. Fontana, a prior NJ Appellate Division opinion.

Specifically, the majority of the Court stated: “We construe the plain language of [the expungement statute] to preclude an expungement when the petitioner has been convicted of multiple crimes, even when the crimes occurred within a short span of time.”

The majority opinion cited the expungement statute, N.J.S.A. 2C:52-2(a), which states that expungement can be granted if the petitioner “has not been convicted of any prior or subsequent crime.” The Court interpreted this language to apply only to those convicted of a single offense which was “an isolated infraction in an otherwise law-abiding life.”

The Supreme Court noted that only the Legislature could broaden the availability of expungements. Currently, the NJ State Legislature is taking steps to ease the expungement process. A pending bill would reduce the statutory waiting time for expungement applications, from the current 10 years for most crimes to 5 years, and from the current 5 years for disorderly persons offenses to 3 years. The bill would also grant automatic expungement to those who graduate from the State’s Drug Court program, so long as certain conditions are met. Finally, the new bill would waive the usual filing fee for expungement in cases in which a defendant is acquitted or if charges are dismissed.

Another bill, which addresses identity theft, would require the expungement of all criminal records for those who are its victims.

A final bill will create a commission to address whether expungement should be automatic, without the need to file a petition in the Superior Court. It would also study whether an individual should be permitted to expunge multiple convictions.

For individuals who seek expungement of NJ Superior or Municipal Court charges, it is critical to have an experienced state and municipal New Jersey criminal defense attorney represent you. The experienced criminal defense lawyers of Schwartz & Posnock appear in all State and Municipal criminal courts in New Jersey, and have convenient locations in Monmouth County (Eatontown), Essex County (Livingston), Union County (Linden), and Middlesex County (East Brunswick). Call us at 732-544-1460 or email us at info@schwartzposnock.com to schedule an appointment. Our website can be accessed at www.schwartzposnock.com.

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