New Jersey Supreme Court Eases Requirements for “Plain View” Warrantless Searches & Seizures

 

A recent decision by the Supreme Court of New Jersey has made it easier for the State to use evidence seized without a warrant against a defendant in a criminal trial. In State v. Xiomara Gonzales, the Court changed the law as to what constitutes a valid “plain view” exception to the general warrant requirement.

The U.S. and N.J. Constitutions ensure an individual’s right to be free from unreasonable searches and seizures. Generally, law enforcement agents must obtain a warrant from a court before they can lawfully search an individual’s home or automobile. Evidence that is obtained in violation of this general rule cannot be used as evidence against that person in a criminal trial. There are exceptions to this general rule, however, including the “plain view” exception. Among other things, police had to discover the evidence “inadvertently” for the plain-view exception to apply under the previous law. If police had advance knowledge that the evidence could be found, the evidence seized without a warrant could not be used at trial.

However, since 1990, when the U.S. Supreme Court decided Horton v. California, 496 U.S. 128, Federal law had a looser standard than New Jersey as to what factual conditions must be met for the plain-view requirement to apply. No longer.

In Gonzales, law enforcement was investigating an ongoing drug distribution enterprise. Wiretaps revealed that a drug transaction would take place at a suspected “stash house.” Police surreptitiously observed the transaction in which packages were loaded into Ms. Gonzales’s car. They followed Ms. Gonzales’s car as she drove away. After Gonzales committed several traffic violations, police pulled her over, ostensibly based only on the moving violations. During the traffic stop, police observed packages of heroin in the back seat area of her car. Gonzales was arrested and charged with drug offenses. The heroin was seized without a warrant and intended to be used as evidence against her.

Gonzales’s attorney filed a motion to suppress the drug evidence. Although the motion was denied at the trial court level, the Appellate Division reversed and granted the motion, reasoning that law enforcement’s prior knowledge that Gonzalez would be carrying drugs rendered the traffic stop a pretext and invalidated the “plain view” discovery and seizure of the heroin. The State appealed the decision to the New Jersey Supreme Court.

In its decision, the Court abandoned the prior New Jersey requirement that the discovery of evidence be “inadvertent” and instead followed the Federal standard. The Court reasoned that the inadvertence condition required courts to determine police officers’ subjective thoughts and beliefs at the time of the discovery. By not requiring inadvertence, the Court made the standard purely objective reasonableness rather than subjective state of mind. Now, contraband may be seized without a warrant when (1) the police officer is lawfully in the area where the evidence is seen and seized and (2) it is immediately apparent that the item is contraband or evidence of a crime. Through its decision, the Court brought New Jersey in synch with the law of the Federal government and a majority of states. The Gonzales decision applies prospectively – that is, only to future cases.

Anyone who has been charged with a criminal offense should obtain a criminal defense attorney. An experienced attorney who is aware of the latest developments in search and seizure law can help identify potential weaknesses in the State’s case which could support pre-trial motions to suppress evidence that has been obtained in violation of the law.

Federal Court Ruling Strengthens the Right of Off-Duty and Retired Law Enforcement Officers to “Concealed Carry” Permits

An influential Federal Appeals Court recently ruled that qualified law enforcement officers who are off-duty or retired have an enforceable Federal right to obtain a concealed carry firearms permit – notwithstanding State and local laws that otherwise restrict or prohibit concealed carry – and can sue in Federal court when their rights have been violated.

In June, the United States Court of Appeals for the District of Columbia (D.C.) Circuit decided the case of Duberry v. District of Columbia, in which local authorities had refused to issue the documents that retired corrections officers needed to obtain their concealed carry permits. The officers retained an attorney to bring a lawsuit in Federal court to uphold their rights. The lawsuit claimed that their former agencies violated their rights under the Federal “Law Enforcement Officers Safety Act” (LEOSA).

Congress enacted LEOSA because the unique threat that law enforcement officers face due to their occupation does not end when they are off-duty or retired. LEOSA explicitly overrides state and local laws and gives retired and off-duty officers who qualify and meet certain conditions the right to carry a concealed weapon to protect themselves, their families, and their communities.

The Court ruled that officers whose rights under LEOSA have been violated by a government agency can bring a Section 1983 lawsuit to enforce their rights and force State and local agencies to comply with Federal law. LEOSA applies not only to state and local police officers, but also to Federal agents, military police, Amtrak police officers, and corrections officers.

LEOSA requires applicants to meet certain eligibility requirements to receive its protections. For example, currently employed officers must have arrest powers and be authorized to carry a firearm while on duty, among other things. Retired officers must also have had at least ten years of service. LEOSA also requires all officers to maintain their firearms training qualifications while they carry.

As Federal law, LEOSA applies in New Jersey with as much force as it does in D.C. The recent court decision strengthens the fact that law enforcement officers and retirees living in New Jersey have the right to obtain concealed carry permits, despite New Jersey’s extremely restrictive gun laws. If local agencies resist issuing permits to qualified officers, this decision provides powerful legal precedent to enforce their rights in court if necessary.

The takeaway from this decision is that current and retired law enforcement officers who have been frustrated in their attempts to obtain their concealed carry permits in New Jersey should consult an attorney. An attorney can help you navigate LEOSA’s statutory requirements and the New Jersey concealed carry application process. If you have been denied a permit, an attorney can help determine whether your rights have been violated. If you have been denied a permit unfairly, an attorney can represent you in court to vindicate your right to protect yourself and your family.

New Law Allows Expungements Sooner

In April, people who have been convicted of criminal offenses in New Jersey will be able to apply to have their criminal records expunged sooner than ever before. New legislation takes effect on that date, reducing the waiting periods for eligible indictable offenses and disorderly persons offenses.

Now, people who were convicted of an indictable offense (commonly referred to as a felony) will be eligible to apply for an expungement just five years after they complete their sentence — whether that is being released from incarceration, probation, or parole, or the payment of a fine — whichever occurs last. Under the previous law, the waiting period was ten years.

Under the new law, those who have been convicted of a disorderly persons offense or petty disorderly persons offense (otherwise known as misdemeanors) would become eligible to apply for expungement three years after their sentence has been completed. Under the old law, the waiting period was five years.

These changes represent a great opportunity for those who have been involved in the criminal justice system to get a “fresh start” in life and put their previous mistakes behind them. A criminal record can significantly inhibit a person’s ability to find a job, obtain a loan, get an education, find housing, and so many other important aspects of living a normal life. Expungement gives those people a helping hand.

When a criminal record is expunged, governmental agencies are required by Court Order to “extract and isolate” the petitioner’s criminal records. Any search that is conducted later through a government agency for records of arrest, criminal charges, prosecution, conviction, and so on, will result in “no records found.” If the person whose record has been expunged is later asked — on a job application, for example — whether they have ever been arrested or convicted, they can truthfully answer “no.” According to the law, it is as if the matter never happened.

Expungement can benefit not only people who have been convicted of an offense, but also anyone who has only been arrested, charged, or acquitted, or whose charges were dismissed through the Pre-Trial Intervention (PTI) diversionary program. Many people do not realize that even if they were exonerated or avoided prosecution altogether, a record still exists of their arrest and the charges that were once lodged against them. The new law expands that list of eligible people to include those who have “graduated” from the Drug Court diversionary program.

The expungement petition process has a number of important limitations, such as certain types of offenses which cannot be expunged. And a person who applies for employment with the court system or law enforcement must still disclose their actual criminal history. The expungement petition process itself is complicated and fraught with procedural requirements and deadlines which, if not followed precisely, can result in the petition being denied by the Court.

For all these reasons, it is important that someone considering applying for an expungement consult with a qualified criminal defense attorney who is familiar with the law.

New Jersey Allows No-Jail Options for Out-of-State Concealed-Carry Holders Caught with a Firearm

In September 2014, New Jersey’s Office of the Attorney General allowed out-of-state concealed carry permit holders who bring their handguns into New Jersey to be eligible for Pre-Trial Intervention (PTI) to avoid mandatory jail time under New Jersey’s strict gun laws. The “clarification” was provided in a Directive issued to the Division of Criminal Justice and all 21 county prosecutors in New Jersey by John J. Hoffman, the Acting Attorney General.

The new Directive results from the recent high-profile case of Shaneen Allen, a single mother of two from South Philadelphia. After twice being the victim of robberies, Allen legally obtained a permit to carry a handgun in her home state of Pennsylvania. In October 2013, while visiting Atlantic City, New Jersey, Allen was pulled over by police in a routine traffic stop. Allen informed officers that she was licensed to carry a firearm, and that her handgun was secured in the trunk of her car. Officers seized the gun and arrested Allen for violating New Jersey gun laws.

New Jersey generally does not permit residents to carry firearms outside their homes, and does not recognize carry permits issued by other states. Out-of-state visitors therefore violate the law if they bring the firearms that they are licensed to carry in their home states into New Jersey. Under the Graves Act, even inadvertent violators such as Allen face a mandatory minimum sentence of three and a half years in state prison.

The Directive provides prosecutors with added discretion when considering PTI for otherwise law-abiding persons who inadvertently violate New Jersey’s gun laws. In fact, it states that “in the absence of case-specific aggravating circumstances, these defendants should not be sentenced to incarceration.” Instead, prosecutors should offer such defendants either PTI or a plea deal in which the defendant pleads guilty and is sentenced to probation without jail.

PTI allows eligible defendants to have their criminal charges dismissed after a period of supervision, without having to plead guilty and without receiving a conviction. To be eligible, defendants must be charged with an indictable (felony) offense and must not have a prior criminal conviction or diversion. PTI generally requires one to three years of supervision, during which time the enrollee must report regularly to a Probation officer and follow other conditions imposed by the Court.

Under New Jersey law, prosecutors determine whether a defendant is eligible for PTI considering a list of factors set forth by statute. The Directive sets forth additional specific factors relevant to cases such as Allen’s in which the defendant obtained her firearm legally, its possession would have been legal in her home state, and she believed that such possession was legal in New Jersey. Those special factors are:

• Whether the manner and circumstances of the possession minimized the exposure of the firearm to others, thereby reducing the risk of harm;
• Whether the defendant is otherwise a law-abiding person;
• Whether the defendant advised police of the firearm on her own initiative;
• Whether the defendant presented the unloaded firearm to a hotel clerk for safekeeping overnight;
• Whether the defendant had been advised beforehand of the limitations of her right to carry a firearm into New Jersey.

In New Jersey, ignorance of the law is still not a defense. However, prosecutors now have much greater justification for using common sense to ensure that law-abiding visitors who inadvertently violate New Jersey’s no-carry laws do not end up serving time in prison for their mistakes. Persons charged with such offenses — or any criminal violation — are strongly advised to retain a reputable attorney to represent their interests.