Search and Seizure: Warrant Exceptions

The Meeting
Marie Bashkirtseff (1858 - 1884)
[Public domain],
via Wikimedia Commons

On September 13, 2012, Bayonne police charged two men with various drug-related offenses, as reported by nj.com. Press reports indicate a silver four-door BMW allegedly stopped at the corner of 12th Street and Broadway at about 6:15 p.m. Plainclothes detectives allegedly saw the driver, later identified as Andrew Harrison, and a suspect on the corner, later identified as Dino Defino, engage in a hand-to-hand drug transaction, according to nj.com.

After stopping Harrison at the corner of 32nd Street and Avenue E, police searched the thirty-seven year old and his silver BMW, reported nj.com. The police seized an alleged 51 pills of suspected oxycodone, according to nj.com.

Meanwhile police also stopped Defino while walking on 12th Street. A search of the thirty-three year old resulted in the seizure of an alleged bag of vegetation suspected to be marijuana, and suspected oxycodone pills, as reported by nj.com.

Law enforcement authorities filed charges against Harrison for possession of oxycodone and possession with intent to distribute, according to the media.

Defino was charged with possession of marijuana under 50 grams, possession with intent to sell, possession of oxycodone, possession of CDS with intent to distribute, and possession within a 1,000 feet of a school.

New Jersey law presumes a search by police of Constitutionally protected areas without a warrant to be invalid. The remedy for an invalid search is suppression of the evidence. When the facts fall within an exception to the warrant requirement, however, the court allows the state to use the evidence at trial.

Some questions to rule out any exceptions to the warrant requirement might include:

• What actions did police observe before arresting both men?
• Where were the police positioned when they observed these things?
• What direction were the police facing?
• How far apart were the police and the two men?
• What other surrounding circumstances were present?
• Did police obtain a warrant before searching the BMW?
• How many police stopped Harrison?
• What circumstances lead up to the search of the BMW?
• How many police stopped Defino?
• What else did the police seize as evidence?

Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding Search and Seizure. Call Now—(856) 812-0321.

Law Office of Michael A. Smolensky LLC on the World Wide Web.

Automobile Exception

Stado wilków
(A pack of wolves)
Alfred Wierusz-Kowalski (1849 - 1915)
[Public domain],
via Wikimedia Commons

The Bill of Rights and the New Jersey Constitution both prohibit the government from entering areas without a warrant where individuals hold reasonable privacy expectations.

One exception to the warrant requirement, the Automobile Exception allows the police to circumvent the warrant application process. But the Fourth Amendment and the New Jersey Constitution differ in respect of the Automobile Exception's elements.

Under federal law, a police officer may search a vehicle, its trunk, and all its containers without a warrant, so long as the circumstances provide the requisite probable cause to believe the vehicle has contraband. Some states are in lockstep with the United States Supreme Court in this matter.

New Jersey law, however, also requires the circumstances be exigent. Absent probable cause and exigency, New Jersey law requires police to obtain a warrant before conducting the automobile search.

Although this imposes a procedural hurdle, New Jersey law allows the police to obtain a warrant telephonically instead of appearing before a judge in person.

State v. Jason Lewis (App. Div. 2010) is a recent Appellate Division opinion involving the Automobile Exception.

Experienced New Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the violation of individual rights.

Call Now—(856) 812-0321.

Click "New Judicial Federalism," labeled in the post footer, for more examples and explanations about this topic.

The Shield has become a Sword

The Fourth Amendment protects individuals from unwanted government intrusion. Almost everyone accepts that theory, but unfortunately that does not always translate into practice.

Recently the Third Circuit handed down its opinion in United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010), and the results make absolutely no sense.

The Fourth Amendment governs police conduct when they approach citizens. The police may request permission to ask questions, and the citizen has every right to refuse. Police officers may also stop an individual temporarily, which means the individual is not free to leave. The police have this power even though the individual may not have been placed under arrest. But it is absolutely clear the police do not have carte blanche to exercise this authority.

The law allows this only if the circumstances provide a basis reasonably to suspect criminal conduct either has taken or is taking place. This means the police must be able to detail who, what, when, where, and how they perceived events.

Furthermore, those observations must provide an objectively reasonable basis for their beliefs. The authority to stop includes, but is not limited to, people walking on foot and driving in cars.

A tip from a citizen does not provide reasonable suspicion unless certain criteria are satisfied. I blogged more extensively about this here, so I will repeat only the general principles now.

When looking at information from a tipster, courts must use common sense. Common sense is, far and away, the biggest principle to remember. The law requires courts to consider the reliability, truthfulness, and knowledge basis of the tip. But the analysis does not end there. The court must find the police took steps independently to corroborate the tip before they took any action.

In summary, the overarching concepts here are simple. First, the Fourth Amendment protects individual freedom. It appears in the Bill of Rights, so clearly its purpose is not merely perfunctory. Second, the law requires the court to use common sense in making a determination.

Consider the facts of this case using common sense. The tipster called 911 to report things she thought she saw and heard. It was night time on January 7, 2007, and the rain was coming down hard.

Common sense instructs us it was cold outside and difficult to see for three reasons:

1. it was night time,
2. it was raining, and
3. it was the middle of a Pennsylvania winter.

Indeed, the summary of facts in this opinion concedes it was hard to see. Although the opinion is silent about thunder and lightning, it was raining hard. Thus, applying common sense one may infer it was more difficult to hear than normal circumstances permit.

All of these details are important because they tend to undercut what the tipster thought she saw and heard. Despite the time and the weather, the tipster claimed she was standing in the front door. Despite the natural environment, she reported three things.

First, she thought she saw a white taxi with a green roof light park in a lot across the street. Notably, the taxi did not park on the street in front of her house. Furthermore, it did not park across the street opposite her house. Instead the taxi went into a parking lot on the other side of the street from her house on a dark, rainy night. Although the opinion does not indicate the distance, it clearly was not immediately in front of her. Additionally, the record is unclear whether the roof light was actually green or white.

Second, the tipster thought she observed two men exit two separate vehicles and wrestle on the ground in the lot across the street in the rain. But the tipster clearly did not provide any details at all about the men involved.

Third, she thought she heard at least one gun shot, and saw the taxi leave. Calling 911 she told the dispatcher "I'm standing here on [sic] my front door," and during the call she said she saw a police car as it arrived on the scene.

It seems, based either on the time of night, the weather, or having heard the sound of gun fire, that any reasonable person would have stayed clear of the door in a place that was safe if not warm. It seems this would dissuade a court engaged in analysis that calls for common sense.

Even putting those things aside, this is all the information the police had when they spotted a taxi ten blocks away. The taxi matched the description the tipster had provided only in respect of its color. The record reflects the roof light might have been green, or it might have been white. She had not provided a license plate or any other identifying information. She had not provided any details about the occupants, which meant the police knew absolutely nothing about the people in the cab. Finally the police did not witness the cab commit any motor vehicle offenses. Apparently Harrisburg does not have many taxis.

Nevertheless the police stopped the taxi, approached with guns drawn, ordered the driver and the defendant out, handcuffed them, and secured the defendant's young son. This stop resulted in the seizure of a gun from the defendant who has a prior felony record.

Despite all the common sense problems with these facts, the Court reasoned the tip provided reasonable suspicion to stop the cab. Along the way, the court's reasoning not only gave the benefit of all doubts to the government, but also it allowed innocent facts to play into the calculation for reasonable suspicion. Apparently courts only require the police independently to corroborate innocent details, and will find reasonable suspicion based on this.

In all events, these are among the many reasons this opinion is troublesome. Here the United States Court of Appeals for the Third Circuit turned a shield, the Fourth Amendment, into a sword. Now precedent in this circuit, the police can intrude on the right to be left alone based on absolutely nothing suspicious at all.

United States of America v. Anthony Johnson, No. 09-2245 (Filed January 27, 2010)

Text-a-Tip: Anonymous Tips and the Police

The Fourth Amendment of the United States Constitution and Article One Paragraph Seven of the New Jersey Constitution protect the individual's right against unwanted contact with the police.

I blogged about citizen-police encounters here, here, and here, explaining this freedom we enjoy in America, and how increasing degrees of suspicious circumstances tend to mitigate against this right.

An anonymous tip may lead to an unwanted encounter with the police. An anonymous tip involves an individual whom the police do not know providing information. This recent article is about anonymous text messages as tips for the police.

This technology is intended to encourage the public to assist the government in its police work. But the police may not act on tips like these unless certain factors are established about the informant:

1. Her veracity must be known,
2. Her reliability must be confirmed, and
3. her basis of knowledge must ‎support the reported information.

Absent these criteria, the police must not infringe on an individual's right to be left alone.‎

These three elements are flexible guideposts for commonsense, practical determinations whether contraband or evidence is located in a particular ‎place. An anonymous tip ‎alone, with scant exception, never justifies an unwanted encounter with the police.

The first prong involves veracty. New ‎Jersey courts assume veracity when the tipster is a law-abiding citizen. Citizen-informants ‎and law enforcement officials seem to share similar motivations for achieving similar goals.

The second prong reviews the tipster's reliability. To establish this, the police must verify the tip through an independent investigation that corroborates the tip. As indicated above, the anonymous tip alone almost never provides legal justification for an unwanted encounter with the police. These ‎additional steps by the police, however, fill this gap.‎

Finally, the third prong probes the tipster's basis of knowledge. This determination requires courts to consider the tip itself. Various factors, taken individually or together, guide the determination ‎of the basis of knowledge. Courts may:

• Inquire as to the nature and details in the tip ‎itself. The contents of the tip may demonstrate the trustworthiness of the informant's knowledge.
• Consider whether the tip predicts hard-to-know future events. This type of information may demonstrate that the informant has personal knowledge of the alleged criminal conduct.
• Apply these factors as part of the totality of circumstances before concluding whether the police had legal justification to infringe on the individual's right to be left alone.

As mentioned above, this article is about Text-a-Tip programs for tipsters to help police. Some cell phones limit text messages to 160 characters. Courts look at anonymous tips to find who the tipster observed, what the tipster perceived, when the alleged events took place, where the alleged events occurred, and how the people behaved. As a result, the Text-a-Tip program might simply be a political expedient while failing to provide evidence that will hold up in court.