New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-29.

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New Jersey Wiretapping and
Electronic Surveillance Control Act

Christopher Soghoian described the power of law enforcement officials to obtain electronically stored evidence from providers of either electronic communication services or remote computing services.

Indeed, New Jersey law addresses this. Additionally, law enforcement authorities in New Jersey may also use wiretaps to obtain electronic evidence "in real time."*

Communication Data Warrants

To search and seize electronically stored evidence as described by Soghoian, New Jersey law requires police to get a Communication Data Warrant (CDW).

No CDW shall issue unless the law enforcement agency provides:

1. specific and articulable facts
2. showing reasonable grounds to believe
3. the record or other information
4. pertaining to a customer
5. of an electronic communication service, remote computing service or communication common carrier
6. is relevant and material to an ongoing criminal investigation.

Armed with either a warrant, a customer's consent to disclose, or a court order for disclosure, police may compel service providers as well as communication common carriers to supply law enforcement agencies with:

• a record,
• location data for a customer's mobile/wireless communications device, or
• other information pertaining to a customer of the service.

Alternatively, if a law enforcement agency in good faith believes an emergency involving danger of death or serious bodily injury to the customer requires disclosure of information relating to the emergency without delay, then the service provider must provide location information for a customer's mobile or wireless communications device, but not a record or other customer information.

New Jersey law empowers law enforcement authorities to get this information under these circumstances without notification to the individual.

Furthermore, the law generally shields any service provider, officer, employee, agent and other specified person who cooperates with the government from civil liability.

A service provider may move before the court to quash or modify the order if:

• the information or records requested are unusually voluminous, or
• compliance would otherwise cause an undue burden.

Subpoenas

If a grand jury or trial subpoena is issued, or when the State Commission of Investigation issues a subpoena, then service providers must provide the customer's:

1. name;
2. address;
3. telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address;
4. local and long distance telephone connection records or records of session times and durations;
5. length of service, including start date, and types of services utilized; and
6. means and source of payment for such service, including any credit card or bank account number,

Upon the request of a law enforcement agency, a provider of wire or electronic communication service or a remote computing service must take all necessary steps to preserve, for a period of 90 days, records and other evidence in its possession pending the issuance of a court order or other legal process. The preservation period will be extended for an additional 90 days upon the request of the law enforcement agency.

* A wiretap order permits the interception by law enforcement of a communication contemporaneous with the transmission.

New Jersey Trial Advocate Michael Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases involving Communication Data Warrants and Subpoenas. Call Now—(856) 812-0321.

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.

Reasonable Suspicion

Suspect 3
By Augheydmx (Own work)
[CC-BY-SA-3.0],
via Wikimedia Commons

On August 6, 2012, police arrested Marcus Williams and charged him with Marijuana Possession, according to news site nj.com.

Police stopped Williams allegedly for driving with a broken brake light. According to nj.com, Police arrested Williams based on two outstanding warrants. A contemporaneous search revealed the suspected contraband.

Police must not unjustifiably stop an individual. A mere hunch never justifies a stop. The cops must first observe the conduct of a particular individual leading to the belief that a crime was or is being committed.

Under New ‎Jersey law, a stop happens when a reasonable person would not believe he is free to leave. The cops must not stop a vehicle without a factual basis that the driver or an occupant broke the law.

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

Warrant Exceptions: Emergency Aid and Community Caretaker

Maison blanche, la nuit
(White House at Night)
Vincent van Gogh (1853 - 1890)
[Public domain]
via Wikimedia Commons

Factual Summary

On July 26, 2012, nj.com reported the New Jersey Supreme Court had suppressed evidence in State v. Shareef Edmonds. Upholding the lower courts, the Supreme Court majority determined the police broke the law when they searched a residence without a warrant and found a weapon.

A 911 call brought police to Kamilah Richardson's Carteret residence, according to the Court's opinion. Allegedly Richardson's brother, the caller said Richardson was a domestic violence victim. The caller also reported a gun in the residence.

After an exchange with Richardson outside her apartment, police entered despite Richardson's disapproval. Police found Shareef Edmonds watching television while seated on a couch, and Richardson's son. But they observed nothing to indicate imminent threat or ongoing danger. Subsequently, the police searched the premises and found a handgun.

Legal Framework Summary

Under the law, the government must pay the greatest degree of respect to an individual's privacy in the home.

Indeed, the New Jersey Constitution and the Fourth Amendment plainly state, "The right of the people to be secure in their . . . houses
. . . against unreasonable searches and seizures, shall not be violated."

Therefore, the fruit of a warrantless search must be suppressed unless the facts fall within an exception.

Emergency Aid Exception

The Emergency Aid Exception allows warrantless activity in private homes to preserve life or prevent serious injury. Based on common sense, New Jersey courts apply the following factors:

First, the circumstances must provide an objectively reasonable basis about an emergency requiring immediate assistance to protect life or prevent serious injury; and

Second, there must be a reasonable nexus between the emergency and the area or places to searched.

Note: The Court aligned New Jersey and Federal law here, discarding the factor relating to the officer's subjective motivations. This development lightens the State's burden.

Community Caretaker Exception

Separate and apart from law enforcement, police provide social services. Similar to the Emergency Aid Doctrine, police usually provide these caretaking services in emergency situations. Furthermore, this exception applies only in circumstances that are completely removed from the investigation of criminal activity. Importantly, this exception does not provide carte blanche authority to search homes without a warrant.

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

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.

Probable Cause

Арест пропагандиста.
(Arrest of a Propagandist.)
Ilya Repin (1844 - 1930)
[Public Domain],
via Wikimedia Commons

INTRODUCTION
Police-citizen enounters fall into three categories. Each tier requires a higher evidential threshold for justification. This entry will describe the most intrusive encounter, namely the arrest, and therefore the most burdensome encounter to justify.

PROBABLE CAUSE
The circumstances provide probable cause when the investigation consists of enough evidence to allow a prudent person to believe a suspect committed or was committing a crime.

Probable cause is less than proof beyond a reasonable doubt. It is, however, more than a mere hunch. First, probable cause is a well-grounded suspicion. Second, this belief must concern whether an offense is taking place or has taken place. Finally, it must relate directly to the suspect as a party to the offense.

The totality of circumstances control the outcome. Therefore, courts examine the facts and inferences. Judges determine whether a person of reasonable caution would believe that an offense was, is, or will be committed. Courts apply common sense and include reasonable inferences in the analysis.

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

Reasonable Suspicion

The spectacle-pedlar
Rembrandt
[Public domain],
via Wikimedia Commons

INTRODUCTION
The Fourth Amendment protects the individual from arbitrary police intrusion. The law prohibits the police from trampling unjustifiably on freedom of movement. Instead, police may do so only under suspicious circumstances.

FULL-STOP
The stop must be based on a particularized suspicion. This means the cops must provide observations seen, heard, smelled, or otherwise detected with their senses, that the person has been or is about to engage in a crime.

Courts consider the totality of the circumstances to determine whether they provided the requisite reasonable suspicion. The policy at play behind this is a balance between effective law enforcement and the individual’s right to move freely.

JUST THE FACTS
The facts determine the outcome, and courts apply common sense in these evaluations. An officer's knowledge and experience may be given weight, as well as rational inferences from the officer's perspective.

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

Field Inquiry

INTRODUCTION Police-citizen enounters fall into three categories. Each tier requires the State to establish a higher evidential threshold. This entry will describe the least intrusive and therefore the least burdensome encounter to justify.

FIELD INQUIRY
With limited exceptions, a field inquiry may be conducted without grounds for suspicion. A field inquiry is the least intrusive encounter, and occurs when a cop approaches an individual and asks some questions. The person, however, need not answer any questions. Indeed, he may decline to listen to the questions and go on his way.

POLICE TRAINING
Cops train to prevent and detect crime. Events unnoticed by a layman ofttimes indicate to the trained eye that something amiss might be taking place or is about to happen. The cops would be derelict in their duties if they did not investigate such events. By that same token, judges are not required to exhibit naiveté from which ordinary citizens are free. Pennsylvania v. Dunlap, 555 U.S. ____ (2008) (Roberts, J., dissenting).

POLICE DISCRETION
Essentially, cops may perform a field inquiry without reason to believe a crime already did, currently is, or soon will take place. But a cop who wants to investigate further will require greater justification. The principal issue is whether the police deny the individual the freedom to move.

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