New Jersey Criminal Lawyers Blog

Unless a police officer has probable cause to believe that your car contains contraband or evidence of criminality, he cannot search your car without a warrant. This is due to the 4th Amendment to the U.S. Constitution, which protects citizens against unreasonable government searches and seizures. While 4th Amendment protections are relaxed whenever one drives on a public road or highway, law enforcement officers are still required to obtain a warrant from a judge before lawfully searching a car. A warrant will only be issued if the arresting officer is able to swear to the existence of specific facts or information that the judge finds gives rise to probable cause. While difficult to define, probable cause generally means a "well grounded suspicion that a crime has been or is being committed." It is more than "mere naked suspicion but less than legal evidence necessary to convict."

Thus, if you are pulled over and a police officer asks to search your car, you are well within your rights to say "no." If the officer proceeds to conduct a search in the absence of your consent and without a warrant, then this search is presumed to be illegal unless the officer is able to prove that a specific exception applies. The law provides for many exceptions (such as "plain view", "border search", and "incident to a lawful arrest") but the most commonly invoked exception when it comes to searching a car on a public highway is the "motor vehicle exception." Under Federal law, this exception allows a motor vehicle to be searched without a warrant so long as there is probable cause to believe the vehicle contains either contraband or evidence of criminality. On the other hand, New Jersey's version of the exception offers more protection to individuals by requiring an officer to demonstrate more than just probable before conducting a lawful search of your vehicle.

In New Jersey, a warrantless search of your car is lawful if and only if three specific conditions have been met:
1)The stop of the vehicle must be unexpected.
2)There must be probable cause to believe that the vehicle has contraband or some other evidence of criminality.
3)There must be exigent circumstances that would make it impractical to obtain a warrant.

The unexpected stop requirement means that the police cannot conduct a search of your car without a warrant unless the stop was made because of some unforeseen and spontaneous reason (such as for a traffic violation). In other words, the police cannot search your car without a warrant if they had been planning to do so ahead of time. This prevents the police from simply using the motor vehicle exception as a shortcut around obtaining a warrant by waiting for you to enter your car. As discussed above, the probable cause requirement means that the police must have more than just a hunch before searching your car--they must be able to reference specific facts or evidence that gives them a well grounded reason for believing that some sort of criminality has taken place. Finally, the exigent circumstances requirement means that the officer must be able to prove that the circumstances surrounding the search made it impractical or unrealistic to obtain a warrant before conducting the search. In order to meet this requirement the officer has to prove that circumstances made it very difficult to obtain a warrant at the time of the search or that the evidence was likely to disappear before a warrant could reasonably be obtained. Whether the circumstances are exigent will depend on various factors such as the time of day, the ratio of officers to suspects, and how likely it is that the contents of the car could be tampered with or removed.

If all of these conditions are met, then a police officer can lawfully search you car without a warrant. However if an officer conducts a search without a warrant and there is any question as to whether these conditions are present, then the search may be illegal. Any evidence obtained as a result of an illegal is not admissible in a court of law and must be thrown out. Thus, it is important to know when warrantless searches are permitted under the law because even if officers find contraband in your vehicle, this evidence can be thrown out if your attorney is able to prove that the search was not properly conducted.

Continue reading "Do Police Officers Need a Warrant to Search My Car?" »

In a recent unpublished New Jersey Appellate Division case (State v. Koch), a seemingly routine underage drinking charge became the subject of great scrutiny for the court. A local ordinance was written and the defendant Koch was charged with a "quasi-criminal" offense to which a Municipal Court of Mansfield Judge ordered a fine of $250 and $33 in court costs. Koch appealed the decision to the Law Division and the same result was reached. Koch then appealed to the Superior Court of New Jersey, Appellate Division.

The validity of the local underage drinking ordinance was not at issue for the court to decide; rather, the method in which Koch was charged controlled and commanded the attention of the court. The underage drinking charge made it unlawful for "any person under the legal age to knowingly possess or consume alcoholic beverage on private property." The defendant and his girlfriend were admittedly at a house party. Neighbors complaining of the noise and the smell of marijuana called the police. When the police officers arrived, some partygoers fled into the woods and no attempt was made to go after them. Defendant Koch was among those who remained. Patrolman DeWitt lined up all those in the house and told them that they were not free to leave. He then proceeded to "sniff" the breath of everyone in the line. As the officer approached, Koch (according to Officer DeWitt's testimony) allegedly exclaimed, "I only had one." The record states that the officers detained the partygoers for approximately 20 minutes. After the "sniff" tests were completed, no charges were written and the officers discharged everyone.

Later on in the evening, Koch was pulled over by Officer DeWitt and two different stories about the stop were submitted. Koch claimed that he was the driver of his girlfriend's maroon Pontiac and the vehicle was in motion when Officer DeWitt signaled for him to pull over. Officer DeWitt claimed that the car was stationary and that Koch had given him a story that he was driving because his girlfriend Ashley was under 18 and could not drive past midnight. Koch claimed that Officer DeWitt's testimony was not true and attempted to submit a videotape of the stop to impeach his testimony. No charge was issued at the time and Koch was ordered to continue driving. Koch only found out that he was charged with the underage drinking ordinance when he was suspended at school because of it.

At trial, the Municipal Judge and the Law Division would not allow the videotape of the stop to be admitted. The videotape shows that the maroon Pontiac was in motion for a considerable amount of time before being pulled over. The Appellate Division concluded (at the urge of defense counsel) that this tape should have been admitted to impeach Officer Dewitt as a witness (both for the vehicle stop and statements made at the party.)

Perhaps more relevant than the evidentiary issue were the grounds that Koch was charged and the procedure the officers followed in doing so. Koch argued and the Appellate Court agreed that because the partygoers were told that they could not leave, they were considered to be "in custody". Furthermore, the partygoers were subjected to a "sniff" test and were not told that they could refuse to do so. The "sniff" test was administered in a custodial setting and therefore, the officers were required to read Miranda rights to all those detained. Furthermore, the court ruled that a "sniff" test and the officer's testimony of smelling alcohol were insufficient as a matter of law to sustain a conviction. The smell of alcohol can only be used to gain probable cause, not as grounds to convict a suspect. On those grounds, the Appellate Division reversed the conviction.

Continue reading "Were You Read Miranda Rights? Discuss Your Arrest With An Experienced NJ Criminal Defense Attorney." »

In an earlier blog post in this space, we highlighted the issue of false confessions. Now comes a story, from right here in New Jersey, which features a man who confessed to a series of car break-ins in the City of Newark that he not only did not commit, but which, owing to the fact that he was behind bars on an unrelated matter when seven of the break-ins took place, he could not have committed.

It is a story that reads like a comedy of errors, but which of course is anything but funny. The story was reported on the Star Ledger's website on October 10, 2010 and is written by Chirs Megerian. Mr. Megerian's story is long and detailed, and goes into issues that are beyond the scope of this post. Anyone wanting to get a more complete picture of what befell Ramon Guzman- the man who spent the ten months behind bars- is referred to the Star Ledger story.

This blog post is concerned only with the issue of Mr. Guzman's confessions to the car break-ins. Specifically, how did Mr. Guzman, having neither committed the car break-ins nor having any independent knowledge about them, make detailed confessions about those break ins? For example, and as reported by Mr. Megerian,

" . . . Guzman admitted to stealing $200.00 from a Pontiac, 25 bottles of baby formula from an Infiniti and clothes from a BMW . . ."

Mr. Guzman's lawyer in his civil rights lawsuit against the City of Newark alleged that a Newark detective, obviously privy to the details of the crimes, fabricated Mr. Guzman's statements. To be clear, Mr. Guzman's lawyer alleged the detective filled in the substance of the confessions and had Mr. Guzman sign them.

A lawyer for the Newark detective maintained however that Mr. Guzman learned the details of the crimes by reviewing incident reports with the detective, and then confessed using those details.

It is unclear where the truth lies with respect to this issue. For our purposes, however, the point is that whether the detective fabricated the confessions or whether Mr. Guzman did so after reviewing the incident reports is immaterial: either scenario constitutes improper procedure leading to an improper confession. The confessions were at the least a product of contamination, if not outright fraudulent behavior. Either scenario demonstrates why defense attorneys need to be vigilant defending a client- especially one who has confessed to a crime.

As the Star Ledger report makes clear, internal and external review controls failed in this case. It seems not too much to say that they failed- at least in part- because the existence of detailed confessions probably served to turn off the critical faculties of reviewing officers, and even those of his first two public defenders. Though Mr. Guzman was in jail during the time of the crimes he confessed to committing, and though sundry other red flags should have been raised concerning his case, his detailed confessions seem to have served to short-circuit any serious review of his case.

Incidentally, Mr. Guzman's civil rights lawsuit against the City of Newark was settled for $300,000.00. Cutting constitutionally-based procedural corners, however it happened in this case, always comes at an ethical cost. Often there is an undeserved human cost. Here there was also a financial cost, and at a time when the City of Newark- Mr. Zuckerberg's largesse notwithstanding- can ill afford it.

The confession of the defendant Peter O'Brien, who is awaiting a retrial for the murder of his mother and her longtime boyfriend has been ruled to be admissible for a second time. The initial conviction of O'Brien was reversed last year by the New Jersey Supreme Court, which said the trial judge improperly took on the role of the prosecutor while presiding over the trial. State v. O'BRIEN, 984 A. 2d 879 - New Jersey Supreme Court 2009.

Superior Court Judge Wendel E. Daniels ruled that O'Brien's confession to the murder can be introduced at trial to a jury. In 2006, Superior Court Judge Edward J. Turnbach, now retired, held a hearing to determine if O'Brien's confession could be introduced to the jury. Judge Turnbach ruled the confession could be introduced to the jury as it was not coerced. Judge Daniels wrote in his opinion, "there is no factual basis for the defendant's claim that he was improperly or illegally interrogated by law enforcement."

It will be interesting to see if this pretrial ruling causes the defendant to think twice about continuing to trial. The defendant will likely take his chances with 12 new jurors. The first trial resulted in the jury returning a guilty verdict and the Judge sentencing the defendant to an aggregate minimum custodial term of 130 years.

Although Peter O'Brien's confession is likely to be used by the jury to conclude he is guilty and did commit the murders, a recent study conducted by Brandon L. Garrett, professor of Law at the University of Virginia School of Law, the findings of which are published in an article by Professor Garrett in a recent issue of the Stanford Law Review, show how and why innocent people confess to crimes they did not commit. Professor Garrett's law review article goes beyond that demonstration and shows how even DNA evidence, available before trial and which clears an innocent party who confessed, can fail to overcome the evidentiary weight afforded a confession by the trier of fact in a criminal trial.

The study's findings were reported in The New York Times on September 13 by reporter John Schwartz. It has long been known by people in the academic, legal and law enforcement communities that people can and do confess to crimes they did not commit. The people most at risk of confessing to a crime they did not commit are people who are, for one reason or another, more susceptible to suggestion. Generally speaking, such people are comprised of the mentally impaired; the mentally ill; young people; and people who are otherwise impressionable.

What Professor Garrett's study shows, which is both informative and alarming, is that people not generally considered to be in danger of confessing to a crime they did not commit may nevertheless do so. These are people for whom the interrogation process has gone beyond endurance and who confess with the sole motivation of ending the interrogation process. Later, when they try to rescind the confession, they are unable to do so. While a criminal defendant is free to argue in court that his confession was false, that argument is frequently seen as self-serving.

Even more alarming are the cases covered in Professor Garrett's study where defendants who had falsely confessed had been cleared of their crimes by DNA evidence before their trials began. Nevertheless, in eight such cases, the defendant who falsely confessed was convicted anyway. How? In one case, the prosecutor argued that the DNA found on the victim may have belonged to a prior sex partner, and that the absence of the defendant's DNA on the victim should not overawe the defendant's detailed confession to the crime.

How was the defendant's confession detailed if he in fact did not commit the crime? How, in other words, might an innocent defendant know details of a crime only the real offender and the police would know? Often, apparently, because interrogation procedures are contaminated. As John Schwartz reports in the Times:

"Professor Garrett said he was surprised by the complexity of the confessions he studied. 'I expected, and think people intuitively think, that a false confession would look flimsy,' like someone saying simply, "I did it,"' he said."

"Instead, he said, 'almost all of these confessions looked uncannily reliable,' rich in telling detail that almost inevitably had to come from the police. 'I had known that in a couple of these cases, contamination could have occurred,' he said, using a term in police circles for introducing facts into the interrogation process. 'I didn't expect to see that almost all of them had been contaminated.'"

Professor Garrett's study and Mr. Schwartz's report provide important insights into how interrogations and prosecutions can go wrong, and lead to innocent people spending years upon years in prison. Their contributions are especially relevant and timely in light of the recent Supreme Court case of Berghuis v. Thompkins, which held that law enforcement personnel can continue to question a suspect, and to use what that suspect says against him in court, where the suspect does not expressly invoke his right to remain silent.

SOURCES:

State v. O'BRIEN, 984 A. 2d 879 - New Jersey Supreme Court 2009.

"Judge Denies hearing for Toms River man's murder confession" by Kathleen Hopkins, Staff Writer, Asbury Park Press, October 5, 2010, app.com.

"The Substance of False Confessions, by Brandon L. Garrett, Professor of Law, University of Virginia Law School, Public Law and Legal Theory Working Paper Series, Year 2009, Paper 136.