Don't be smoking pot when you open the door

Warrantless Search Legal Where Suspect Answers Door With Joint

Smoking pot while answering one's front door, then tossing the evidence when seeing it's the police, creates probable cause to search under the plain-view and exigent-circumstances doctrines, the state Supreme Court says.

The justices reversed an Appellate Division ruling that suppressed drug evidence found in the warrantless search in State v. Walker, A-49-11.

They stressed it was the defendant's own guilty behavior that gave the police authority. "We do not suggest that, had no one come to the door, the mere smell of marijuana would have justified a forced entry into defendant's home," the court said.

Two Newark policemen came to Rashad Walker's Riverview Court apartment, part of a public housing complex, on a tip from a confidential informant that he was selling drugs. They could smell marijuana smoke. One officer was dressed in plain clothes in order to attempt to make a purchase. When Walker opened the door and saw the second officer's badge, he threw the joint into his living room and attempted to shut the door. The officers gained entry. In plain view, they found 22.4 grams of marijuana, 27 packets of heroin, 4.2 grams of cocaine, a scale and a razor.

After Essex County Superior Court Judge Stephen Bernstein denied his motion to suppress, Walker pleaded guilty to multiple drug offenses but preserved his right to appeal the motion denial. The Appellate Division reversed.

At the Supreme Court, the state relied heavily on the reliability of the informant, who had provided valuable tips on at least 10 prior occasions.

The court said that was not enough to justify a warrantless search, but Walker's actions were.

"Although the information contained in the tip was uncorroborated, by the time the officers knocked at the door of defendant's apartment, subsequent events, created by defendant's own actions, established probable cause and exigent circumstances which justified an entry into defendant's apartment," wrote Judge Ariel Rodriguez for the court.

"Clearly, defendant must have been aware that the officers knew he was committing an offense," Rodriguez said. And once he threw the joint back into the living room and tried to shut the door, the officers "were compelled to act to prevent defendant from disposing of the marijuana cigarette, or eluding the officers."

Judge Mary Catherine Cuff did not participate in the otherwise unanimous decision.

Assistant Deputy Public Defender Amira Scurato, Walker's attorney on the appeal, says the ruling, being limited to its facts, "doesn't change the overall landscape regarding privacy in one's own house," she says.

New Jersey Law Journal 4/10/13

CRIMINAL LAW — Search and Seizure

State v. Vargas

State v. Vargas, A-56 September Term 2011; Supreme Court; opinion by Albin, J.; dissent by Patterson, J.; decided March 18, 2013. On appeal from the Appellate Division. [Sat below: Judges Yannotti and Espinosa in the Appellate Division; Judge Telsey in the Law Division.] DDS No. 14-1-9325 [54 pp.]

In this appeal, the court must decide whether, consistent with the Fourth Amendment of the U.S. Constitution and Article I, Paragraph 7 of the New Jersey Constitution, the community-caretaking doctrine authorizes the police to conduct a warrantless entry and search of a home to check on the welfare of a resident in the absence of the resident's consent or an objectively reasonable basis to believe that there is an emergency.

In this case, a landlord called the police because he had not seen or been able to contact a tenant for two weeks. During the two-week period, the tenant's garbage was not placed curbside, his mail accumulated, his car remained unmoved, and his monthly rent went unpaid. The landlord expressed concern for the tenant's well-being, and the police entered the home without a warrant and conducted a "welfare check" because they "had reasons to fear for his safety." They found no one home and no signs of foul play. In the living room they saw a jar containing what appeared to be marijuana. The landlord opened kitchen cabinets and drawers and found what "appeared to be two canning jars full of marijuana." A warrant was then secured to search the apartment.

Vargas was indicted for various crimes involving money laundering, possession with intent to distribute marijuana, unlawful possession of firearms, and other offenses. Vargas moved to suppress the evidence on the ground that the police entered and searched his apartment in violation of the warrant requirement.

The trial court suppressed the evidence because the warrantless entry and search were not prompted by an objectively reasonable emergency. The court specifically rejected the state's argument that the community-caretaking doctrine justified the warrantless search, finding that there was no objectively reasonable basis to believe that Vargas' life or well-being, or the community's safety, was in jeopardy. The trial court determined that there were no "exigent circumstances" to justify the warrantless search of Vargas' home.

The Appellate Division reversed, concluding that the community-caretaking doctrine did not require an exigency to conduct a warrantless search; it only required that the police act reasonably and that the search was based on a legitimate concern for Vargas' welfare.

The Supreme Court granted defendant's motion for leave to appeal.

Held: The community-caretaking doctrine is not a justification for the warrantless entry and search of a home in the absence of some form of an objectively reasonable emergency.

Courts consider Cady v. Dombrowski to be the origin of the community-caretaking doctrine as an exception to the warrant requirement. Although the Supreme Court in Cady recognized law enforcement's "community caretaking functions" in the context of an automobile search, the court did not suggest that community-caretaking responsibilities constituted a new exception to the warrant requirement that would justify the warrantless search of a home. The U.S. Supreme Court has never spoken of a community-caretaking exception to the warrant requirement that would allow the warrantless entry of a home absent some exigency.

The New Jersey Supreme Court has applied the community-caretaking doctrine outside of the automobile-impoundment context. But when it has done so to justify a warrantless entry or search, the factual scenarios involved exigent circumstances — circumstances requiring immediate police action. Without the presence of consent or some species of exigent circumstances, the community-caretaking doctrine is not a basis for the warrantless entry into and search of a home.

The U.S. Courts of Appeals have split on whether the community-caretaking doctrine can justify a warrantless search of a home, but no circuit court suggests that the warrantless entry of a home is permissible in the absence of some form of exigency.

In this case, the trial court applied the correct legal standard and sufficient credible evidence in the record supports its decision. The police did not have an objectively reasonable basis to believe that an emergency threatening life or limb justified the warrantless entry into Vargas' apartment. The Appellate Division erred by concluding that the community-caretaking doctrine justified the warrantless search of Vargas' home, even in the absence of a "compelling need for immediate action." The evidence must be suppressed.

Because the warrantless entry and search and seizure in this case violated the Fourth Amendment of the U.S. Constitution and Article I, Paragraph 7 of the New Jersey State Constitution, the court reverses the Appellate Division and reinstates the trial court's suppression order.

Justice Patterson, dissenting, does not consider the constraints that the majority imposes on law enforcement necessary to protect against unreasonable search and seizure. She considers the search in this case to be consistent with constitutional standards, and would affirm the Appellate Division panel's decision.

Chief Justice Rabner, Justices LaVecchia and Hoens, and Judges Rodríguez and Cuff, both temporarily assigned, join in Justice Albin's opinion. Justice Patterson filed a separate, dissenting opinion.

New Jersey Law Journal March 20, 2013

Getting Booted from Drug Court Can Cost You

Drug Court Dropouts May Face Harsh Music Upon Resentencing

Prosecutors who let otherwise prison-bound defendants into the state's drug court program do not waive the right to seek expanded sentences if they are later booted for violating probation, an appeals court says.

The precedential opinion in the consolidated cases of State v. Bishop, A-0048-11, and State v. Torres, A-1399-11, could impact thousands of enrollees in drug court — an alternative to prison for drug- or alcohol-addicted defendants who are charged with nonviolent offenses and have no history of violent crime.

Under the five-year program, they are assessed, referred to treatment and closely monitored through frequent and random testing and repeated court appearances.

Darryl Bishop and Wilberto Torres, who both pleaded guilty to possession with intent to distribute heroin within 1,000 feet of a school and had prior drug convictions that would have enabled the prosecutor to seek an extended prison term.

As part of their plea deals, the prosecutor agreed to sentence Bishop and Torres to special probation and send them to Drug Court.

The plea agreements contained an "alternate sentence" of seven years in prison with no parole for 42 months.

Both men violated the special probation and neither argued that it should not have been revoked as a result. But on resentencing, they opposed the prosecution's request for imposition of the alternative sentences.

Middlesex County Superior Court Judge Lorraine Pullen found the same three aggravating factors existing at the time of original sentencing — prior record, risk of another offense and the need to deter — were still present and were not offset by mitigating factors.

She sentenced Bishop to the seven years and 42 months parole ineligibility sought by the prosecutor and Torres to seven years, with 36 months ineligibility, six months less than requested.

Both men argued on appeal they should have been sentenced at most to four years with no parole ineligibility.

The argument on appeal was that the sentences imposed violated the principles set forth in Supreme Court decisions between 1989 and 1992 that found limits on resentencing after revocation of probation and recognized the waiver concept.

The Appellate Division affirmed, finding that different rules apply to resentencing depending on which type of probation is revoked.

Regular probation under N.J.S.A. 2C:43-2b(2) is meant for minor offenders who would not necessarily be sent to prison. Special probation under N.J.S.A. 2C:35-14, added in 1999, was intended for those whose crimes would garner them prison time and who were not eligible for regular probation.

As the Appellate Division pointed out, the regular probation statute says that when a court revokes probation, "it may impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted."

The special probation statute allows the resentencing judge to impose "any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent."

The appeals court read that language as reflecting legislative intent to provide a separate resentencing regime for special probation, one that "constitutes a marked departure from the regular probation standard and provides express statutory direction preserving all sentencing provisions available at the original sentencing in the event of revocation of special probation."

The difference between the two standards "comports with the fundamental difference in admission criteria to special probation as opposed to regular probation," the court said.

Judges Joseph Lisa, Marie Simonelli and Ellen Koblitz noted that when the Legislature added the special probation standard, it did not change the one for regular probation, indicating it meant them to be different.

Assistant Deputy Public Defender John Douard says Bishop and Torres were entitled to a more substantive hearing on revocation but declines further comment.

The Middlesex County Prosecutor's Office did not respond to the decision by press time.

The attorney general and the Association of Criminal Defense Lawyers of New Jersey submitted amicus briefs at the panel's invitation.

The attorney general's spokesman, Peter Aseltine, says "We're pleased that the court properly construed the relevant statutes in the way that maximizes the incentives for otherwise prison-bound defendants to succeed in Drug Court's special probation program, as opposed to creating incentives for them to fail out."

Jeffrey Mandel, of PinilisHalpern in Morristown, who wrote the ACDL-NJ brief, says, "the decision affects a lot of people who try to fight the drug demon through the strictures of Drug Courts but lose that fight and face resentencing when their special probation is revoked."

Court statistics as of Feb. 4, show more than 13,000 defendants admitted to Drug Court since 2002, with 4,887 currently enrolled. Almost 57 percent of those in the program have remained in, without dropping out or having probation revoked.

New Jersey Law Journal 3/1/13

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Marijuana update: Small amount of pot turned into a civil offense?

PROPOSAL WOULD MAKE POSSESSION OF SMALL AMOUNT OF POT A CIVIL OFFENSE

A bill introduced Nov. 10 in Trenton would decriminalize and ease the penalties for simple possession of marijuana. Current New Jersey law makes possession of 50 grams or less of the drug a disorderly persons offense. The bill, A-4252, would subject possessors of 15 grams or less of marijuana to civil penalties only, collected by the municipality where the offense takes place. The proposed penalties are $150 for a first violation, $200 for a second and $500 for a third or subsequent one. The measure also would amend N.J.S.A. 2B:12-17 to establish the new offenses as subject to municipal court jurisdiction.

Click here for article

This bill was referred to the Judiciary Assembly Committee on November 10th.

If you have been charged with possession (pot, hash, marijuana, cocaine, heroin) and are looking for legal representation so you don't have a criminal history, contact our offices today 800-709-1131 or you can submit your information online at www.simonattorneys.com

Possession Success

Possession case dismissed!

An inexperienced driver was pulled over by the police for swerving out of his lane. The officer observed the passenger in the vehicle with marijuana in his possession. Our client faced charges of possession in a motor vehicle, possession of a controlled dangerous substance, and failure to maintain his lane.  We were able to have the possession charges dismissed and he walked out of court with a minor traffic fine.

When your future is at stake, call the Simon Law Group to defend you.

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Driving Under the Influence, Possession of CDS, Roseland, NJ

Justia.com Opinion Summary:

One evening in August 2008, a state trooper observed Defendant Reynold Regis' vehicle repeatedly swerve over the fog line and onto the shoulder of Route 280 near Roseland, New Jersey. Upon approaching the car, the trooper detected the odor of burnt marijuana. The trooper administered two field sobriety tests to Defendant, both of which he failed. Defendant and his passenger, Camilla Reynolds, were arrested. Defendant was charged with driving under the influence of a controlled dangerous substance, possession of CDS, and failure to maintain a lane. The municipal court found Defendant not guilty of possession of CDS (Reynolds testified that the marijuana was hers) but guilty of driving under the influence and of failure to maintain a lane. Defendant appealed his conviction to the Law Division arguing the two clauses of the applicable statute were ambiguous as applied. The Law Division concluded that the State had proven the elements of the first offense identified in the statute, namely failure to drive "as nearly as practicable entirely within a single lane." The Appellate Division held that the two clauses of the statute "clearly" described only one offense: failing to maintain a lane of travel by changing lanes without first ascertaining that the lane change can be conducted safely. Although it did not find the statute was ambiguous, the panel nonetheless invoked the rule of lenity to construe the statute in Defendant's favor and reversed his conviction. The State appealed. Upon review, the Supreme Court reversed the appellate court: "the Appellate Division's limitation of N.J.S.A. 39:4-88(b) to the violation identified in the statute's second clause would render the first clause inoperative. On the other hand, the court's construction gives meaning to all of the statute's language, and thereby effects the intent of the Legislature."

For further reading, please click here

Should you require legal representation for possession of CDS in Roseland, NJ or surrounding areas, please call our criminal attorneys at 800-709-1131 or visit our website www.simonattorneys.com

Possession of Marijuana Under 15 Grams a Civil Offense

PROPOSAL WOULD MAKE POSSESSION OF SMALL AMOUNT OF POT A CIVIL OFFENSE

A bill introduced Nov. 10 in Trenton would decriminalize and ease the penalties for simple possession of marijuana. Current New Jersey law makes possession of 50 grams or less of the drug a disorderly persons offense. The bill, A-4252, would subject possessors of 15 grams or less of marijuana to civil penalties only, collected by the municipality where the offense takes place. The proposed penalties are $150 for a first violation, $200 for a second and $500 for a third or subsequent one. The measure also would amend N.J.S.A. 2B:12-17 to establish the new offenses as subject to municipal court jurisdiction.

 

NJLJ 11/18/2011 - Small Quantity of Marijuana Could Be A Civil Offense

 

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Medical Marijuana Law - Still in Doubt

STATE WORKERS' CRIMINAL RISK IN CARRYING OUT POT LAW STILL IN DOUBT

New Jersey’s medical marijuana law remains on hold as the Attorney General’s Office mulls whether the U.S. Justice Department has provided sufficient assurance that state workers won't be criminally charged for carrying it out. A memo by Deputy U.S. Attorney General James Cole says the government is not inclined to prosecute medical marijuana users or their caregivers but will focus on large-scale commercial marijuana operations. But the June 30 memo does not mention state workers employees, who would be responsible for licensing, inspecting and overseeing marijuana dispensaries and in registering patients, caregivers and physicians.

NJLJ 7/6/2011

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Possession: Police Raid Wild Party - Drug Evidence Suppressed

State v. Kaltner

Last week, the Appellate Division ruled that a police raid of an animal house residence during a raucus party was unreasonable. The ruling affirmed a Law Division holding that suppressed illegal drugs found by the police during a search. The Long Branch residence, inhabited by Monmouth University fraternity brothers, had been the subject of police involvement for excessive noise on a previous occasion. A local Long Branch ordinance outlaws excessive noise. During the early morning hours of October 22, 2009, the police were dispatched to the residence on a noise complaint and found it to be mobbed with as many as 150 people, many of whom were drunk and noisy. The police were initially invited inside the common area of the residence by a random party-goer. Thereafter, the police spread out through the residence in an attempt to locate any responsible person who lived there. While searching on the third floor, the police entered the bedroom of the defendant and noticed illegal drugs in plain view near his bed. The defendant was not at the party and was later arrested and charged with drug offenses.

Although the State argued that the police activities at the party were justified as a community caretaking function, the Appellate Division found the police actions in searching the residence in this manner to be unreasonable and sustained the suppression of the drug evidence.

For additional information regarding your individual criminal drug questions, please call the office for your free consultation at 800-709-1131 or visit the website simonattorneys.com

Justice Department Wants Reduced Sentences for More Drug Offenders

The Justice Department is pitching a proposal that would retroactively apply crack sentencing laws to thousands of offenders whose conduct occurred before new guidelines took effect reducing sentences for many inmates. Last August, President Obama signed into law a measure that reduced the 100-to-1 sentencing disparity between crack and powder cocaine, a move Justice officials supported. On Wednesday, Attorney General Eric Holder Jr. and Assistant Attorney General Lanny Breuer in separate remarks said the department favors going one step further—the retroactive application of that guideline to offenders whose conduct occurred before August. Such a move could benefit more than 12,000 prisoners.

NJLJ 6/3/11

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