Today the N.J. Supreme Court reaffirmed the principle that warrants must state the place to be searched with particularity. The Court also reaffirmed the concept that the Court cannot delegate to the police the detached, neutral assessment meant for magistrates to determine whether warrant requirements are met. The decision may be found here.
In State v. Quinn Marshall, the Court reviewed a challenge to a search warrant arising out of a narcotics investigation. There were controlled buys at a particular address, but it was unclear which of two apartments in a building was the location of the buys. That was important because probable cause existed to search only that apartment. In other words, there was no basis to believe that narcotics were stored and distributed from the uninvolved apartment.
So the police came up with a novel idea. The detective asked the issuing judge to grant the warrant but to condition the execution of the warrant upon the police obtaining corroborating information as to which of the two apartments was involved in the narcotics sales. The judge granted the warrant with that condition. The police thereafter arrested a codefendant who provided information suggestive that the first floor apartment was the proper target location.
The police executed the warrant at the first floor apartment. The police discovered narcotics as well as the defendant, Marshall, whom they arrested. Marshall moved to suppress the fruits of the search due to a fatally defective warrant. The Trial Court denied the motion to suppress. The Appellate Division reversed. The Supreme Court agreed with the Appellate Division.
The issuing judge had improperly delegated to the police the discretion as to where they may execute the warrant. But warrants must describe with particularity where the police may enter. The police must be circumscribed in their entries. This is a constitutional requirement. Because the court had delegated that authority, through an unconstitutional condition, the warrant was not particularized.
Tuesday, July 21, 2009
Tuesday, July 14, 2009
N.J. Supreme Court Rejects Missing Witness Jury Charge Against Criminal Defendant
For years, the decision in State v. Clawans permitted judges, in appropriate circumstances, to charge juries that a party's failure to call a witness who naturally would have been called may give rise to an inference that the witness's testimony would have been unfavorable to the party who likely would have called the witness.
Today the N.J. Supreme Court overruled that decision, insofar as it had previously permitted a Clawans charge to be given against a criminal defendant. In State v. Hill, which decision can be found here, a unanimous Court rightly recognized that such a jury charge could have the effect of reversing the burden of proof.
Hill was charged with first degree armed robbery. He was charged as an accomplice, driving codefendants to the scene and serving as the getaway driver. The main issue in the trial was his prior knowledge of the planned robbery. He testified and denied any prior knowledge. He did not call as a witness, however, his cousin who was a codefendant. The cousin had pled guilty as a juvenile and, as part of his testimony before the juvenile court, asserted that Hill did have advance knowledge of the robbery.
Neither side called the cousin as a witness in Hill's trial. The State sought and obtained, over defense objection, a Clawans charge. The jurors were therefore advised that they could find an adverse inference against Hill due to his failure to call the cousin to testify. The adverse inference would be that the cousin's testimony would be unfavorable. The Appellate Division affirmed the jury instruction. The Supreme Court reversed.
The Court was correct in reversing the ruling on the jury charge. The State bears the burden of proof to prove each element of all criminal charges beyond a reasonable doubt. Defendants have no such burden. The burden never shifts. Yet the prior application of Clawans had the effect of shifting the burden of production to the defendant. In this case, Hill indicated, for example, he no longer spoke with the cousin (not surprisingly), and that the cousin was believed to have moved out-of-state. In any event, it is unclear how a defendant could overcome an adverse inference. He should not have to. It is not the defendant's burden to produce for trial every eyewitness. Indeed, there are a host of strategic reasons why defense counsel may choose not to call eyewitnesses.
One important reason not to call every eyewitness relates to the burden of proof. Defendants may properly defend a case without calling any witnesses on the basis that the State has failed to meet its burden of proof. That is often a significant factor and strategy in not calling defendants to testify. Yet, if defendants were required to worry about an adverse inference charge, such an argument would be undermined. So too would the constitutional protections for defendants embedded in the "presumption of innocence."
So this decision is an important one.
Today the N.J. Supreme Court overruled that decision, insofar as it had previously permitted a Clawans charge to be given against a criminal defendant. In State v. Hill, which decision can be found here, a unanimous Court rightly recognized that such a jury charge could have the effect of reversing the burden of proof.
Hill was charged with first degree armed robbery. He was charged as an accomplice, driving codefendants to the scene and serving as the getaway driver. The main issue in the trial was his prior knowledge of the planned robbery. He testified and denied any prior knowledge. He did not call as a witness, however, his cousin who was a codefendant. The cousin had pled guilty as a juvenile and, as part of his testimony before the juvenile court, asserted that Hill did have advance knowledge of the robbery.
Neither side called the cousin as a witness in Hill's trial. The State sought and obtained, over defense objection, a Clawans charge. The jurors were therefore advised that they could find an adverse inference against Hill due to his failure to call the cousin to testify. The adverse inference would be that the cousin's testimony would be unfavorable. The Appellate Division affirmed the jury instruction. The Supreme Court reversed.
The Court was correct in reversing the ruling on the jury charge. The State bears the burden of proof to prove each element of all criminal charges beyond a reasonable doubt. Defendants have no such burden. The burden never shifts. Yet the prior application of Clawans had the effect of shifting the burden of production to the defendant. In this case, Hill indicated, for example, he no longer spoke with the cousin (not surprisingly), and that the cousin was believed to have moved out-of-state. In any event, it is unclear how a defendant could overcome an adverse inference. He should not have to. It is not the defendant's burden to produce for trial every eyewitness. Indeed, there are a host of strategic reasons why defense counsel may choose not to call eyewitnesses.
One important reason not to call every eyewitness relates to the burden of proof. Defendants may properly defend a case without calling any witnesses on the basis that the State has failed to meet its burden of proof. That is often a significant factor and strategy in not calling defendants to testify. Yet, if defendants were required to worry about an adverse inference charge, such an argument would be undermined. So too would the constitutional protections for defendants embedded in the "presumption of innocence."
So this decision is an important one.
Communications Data Warrant for Stored Email Permitted on Lower Standard Than Wiretap
In a follow-up decision to the recent rejection of a suppression motion, the N.J. Appellate Division reversed a Trial Court decision which limited the State's Communications Data Warrant seking stored email to two weeks prior to execution of a search warrant. In State v. Finesmith, the Court noted that, under the State's Wiretap Act, communications data warrants are different than wiretaps and require a lower standard for issuance. They require merely "reasonable grounds to believe that the record or other information pertaining to a subscriber or customer f an electronic communication server is relevant and material to an ongoing criminal investigation." N.J.S.A. 2A:156A-29A(e). This is because the information is not being intercepted contemporaneously with its transmission, but is being acquired in post-transmission electronic storage. The decision may be found here.
I think that the Wiretap Act distinction in this regard is arbitrary and fails to capture the significance of the retrieval of stored communication. Essentially the stored information is a complete record of the electronic communications. Retrieval of this information is tantamount to a retroactive wiretap. The nature of the information does not change with the fact that it is not being contemporaneously intercepted. The upshot is that law enforcement may, if there is no need for comtemporaneous interception (which requires a much higher standard for issuance of the warrant), simply avoid the warrant process for this same information and obtain it through a CDW.
New Jersey's privacy laws should be amended to reflect the reality that there is a legitimate expectation of privacy in even stored electronic communications data.
I think that the Wiretap Act distinction in this regard is arbitrary and fails to capture the significance of the retrieval of stored communication. Essentially the stored information is a complete record of the electronic communications. Retrieval of this information is tantamount to a retroactive wiretap. The nature of the information does not change with the fact that it is not being contemporaneously intercepted. The upshot is that law enforcement may, if there is no need for comtemporaneous interception (which requires a much higher standard for issuance of the warrant), simply avoid the warrant process for this same information and obtain it through a CDW.
New Jersey's privacy laws should be amended to reflect the reality that there is a legitimate expectation of privacy in even stored electronic communications data.
N.J. Supreme Court Defines "Armed With a Deadly Weapon"
Under N.J. criminal statutes, robbery is in the first degree (between 10 and 20 years' imprisonment) where it is "armed." Otherwise it is second degree (between 5 and 10 years imprisonment). But how is "armed" defined where a firearm is not used?
It seems the key is whether the defendant had an intent to use the weapon in a manner capable of producing death or serious bodily injury. It must be accessible with that intent. Accordingly, the Supreme Court ruled yesterday that juries must be so charged:
"For first-degree robbery, if a weapon possessed by a defendant was not a firearm, the defendant cannot be
considered to have been armed with a deadly weapon unless he or she had immediate access to the potential weapon
and an intent to use it in a way that was capable of producing death or serious bodily injury. Because the judge’s
jury instructions in this case eliminated the issue of “intent,” a proper evaluation of the evidence was precluded and
the first-degree robbery conviction must be reversed. "
It seems the key is whether the defendant had an intent to use the weapon in a manner capable of producing death or serious bodily injury. It must be accessible with that intent. Accordingly, the Supreme Court ruled yesterday that juries must be so charged:
"For first-degree robbery, if a weapon possessed by a defendant was not a firearm, the defendant cannot be
considered to have been armed with a deadly weapon unless he or she had immediate access to the potential weapon
and an intent to use it in a way that was capable of producing death or serious bodily injury. Because the judge’s
jury instructions in this case eliminated the issue of “intent,” a proper evaluation of the evidence was precluded and
the first-degree robbery conviction must be reversed. "
Friday, July 10, 2009
NJ Appellate Court Addresses Re-Interrogation After Break in Questionining Due to Assertion of Right to Counsel
State v. Wessells (NJ Appellate Division)
Facts: An incident occurred which resulted in five individuals being shot, of whom all but two were killed. A police investigation led to the arrest of co-defendant Raheem Clay (‘Rah’). The following day the defendant, Wessells, was arrested on a traffic warrant and taken to police headquarters. Wessells was orally advised of his Miranda rights and signed a Miranda waiver form. Wessels was interviewed, but refused to give a formal taped statement. The defendant was questioned regarding an incident prior to the shootings in which he was an alleged victim of an assault. In reference to this incident, Wessels admitted he quarreled with one of the deceased victims of the shooting and then he was assaulted by the victim’s friends. The police also questioned the defendant about the triple homicide. Wessels claimed he only read about the incident in the newspaper. Wessell also gave the police Rah’s contact information. Then, the defendant requested a lawyer before continuing to answer any more questions and the interrogation terminated.
The defendant posted bail on the traffic warrants and was released. Nine days later, one of the surviving victims identified Wessells as one of the shooters. The defendant was taken into police custody in connection with the homicides and attempted murders. The police reiterated to the defendant his Miranda rights and the defendant waived his rights and agreed to give a statement without an attorney present. The defendant admitted he was at the scene of the homicide, but denied participating in the shootings. Wessells also acknowledged his previous dispute with the deceased victim and restated that he was jumped by the victim’s friends.
Holding: The court addressed the “Edwards rule,” which provides that an accused who has expressed a desire to deal with the police through counsel cannot be subject to further interrogation without counsel present, unless the accused initiates the exchange. This rule is to protect the accused from being badgered or bullied into making a statement. The Edwards rule does not address whether or not a break in custody after the invocation of Fifth Amendment rights relaxes the enforcement of the rule. In this case, the court held that a person who has asserted a right to counsel during a police custodial interrogation and is subsequently released may be interrogated again if the break in custody afforded a reasonable opportunity to consult an attorney. The court adopted a totality-of-the-circumstances test to determine if the break in custody gave the accused a reasonable opportunity to consult an attorney. This test was adopted to prevent police from circumventing the Edwards rule by releasing the accused from custody for a short period of time so the police could seek another waiver of the rights from the accused.
Opinion: The due process clause of the Fifth Amendment establishes procedural safeguards to secure citizen’s rights. While these rights should be vigorously protected, they are not and should not be limitless. The Appellate Division may or may not have made the correct ruling in this case. Defendant asserted his right to counsel. No counsel ever appeared and waived the right. Nonetheless, by establishing a totality-of-the-circumstances test, the court struck a balance between an accused’s fundamental right to counsel and the interest of justice. What I mean by this is the test prevents an individual from being worn down by trained officers and detectives prior to making a statement, while also ensuring the accused cannot retract a statement simply based upon a legal technicality. In this case, the accused had nine days to contact counsel and the police also repeated the Miranda warning to Wessells after the second arrest. Given these facts, Wessell had a reasonable opportunity to seek counsel or could have reinforced his right to counsel rather than waiving it.
Thanks to law student, Anthony D'Antonio for his summary.
Facts: An incident occurred which resulted in five individuals being shot, of whom all but two were killed. A police investigation led to the arrest of co-defendant Raheem Clay (‘Rah’). The following day the defendant, Wessells, was arrested on a traffic warrant and taken to police headquarters. Wessells was orally advised of his Miranda rights and signed a Miranda waiver form. Wessels was interviewed, but refused to give a formal taped statement. The defendant was questioned regarding an incident prior to the shootings in which he was an alleged victim of an assault. In reference to this incident, Wessels admitted he quarreled with one of the deceased victims of the shooting and then he was assaulted by the victim’s friends. The police also questioned the defendant about the triple homicide. Wessels claimed he only read about the incident in the newspaper. Wessell also gave the police Rah’s contact information. Then, the defendant requested a lawyer before continuing to answer any more questions and the interrogation terminated.
The defendant posted bail on the traffic warrants and was released. Nine days later, one of the surviving victims identified Wessells as one of the shooters. The defendant was taken into police custody in connection with the homicides and attempted murders. The police reiterated to the defendant his Miranda rights and the defendant waived his rights and agreed to give a statement without an attorney present. The defendant admitted he was at the scene of the homicide, but denied participating in the shootings. Wessells also acknowledged his previous dispute with the deceased victim and restated that he was jumped by the victim’s friends.
Holding: The court addressed the “Edwards rule,” which provides that an accused who has expressed a desire to deal with the police through counsel cannot be subject to further interrogation without counsel present, unless the accused initiates the exchange. This rule is to protect the accused from being badgered or bullied into making a statement. The Edwards rule does not address whether or not a break in custody after the invocation of Fifth Amendment rights relaxes the enforcement of the rule. In this case, the court held that a person who has asserted a right to counsel during a police custodial interrogation and is subsequently released may be interrogated again if the break in custody afforded a reasonable opportunity to consult an attorney. The court adopted a totality-of-the-circumstances test to determine if the break in custody gave the accused a reasonable opportunity to consult an attorney. This test was adopted to prevent police from circumventing the Edwards rule by releasing the accused from custody for a short period of time so the police could seek another waiver of the rights from the accused.
Opinion: The due process clause of the Fifth Amendment establishes procedural safeguards to secure citizen’s rights. While these rights should be vigorously protected, they are not and should not be limitless. The Appellate Division may or may not have made the correct ruling in this case. Defendant asserted his right to counsel. No counsel ever appeared and waived the right. Nonetheless, by establishing a totality-of-the-circumstances test, the court struck a balance between an accused’s fundamental right to counsel and the interest of justice. What I mean by this is the test prevents an individual from being worn down by trained officers and detectives prior to making a statement, while also ensuring the accused cannot retract a statement simply based upon a legal technicality. In this case, the accused had nine days to contact counsel and the police also repeated the Miranda warning to Wessells after the second arrest. Given these facts, Wessell had a reasonable opportunity to seek counsel or could have reinforced his right to counsel rather than waiving it.
Thanks to law student, Anthony D'Antonio for his summary.
Thursday, July 9, 2009
N.J. Supreme Court Addresses 'Community Caretaking' Exception to the Warrant Requirement
State v. Bogan(NJ Supreme Court)
Facts: A fourteen year old girl, Kathleen, was found alone and crying. She stated she had been molested earlier that day by a family friend, Anthony Bogan. The police were notified and Kathleen gave a description of Mr. Bogan. Kathleen proceeded with the police to the area where she had been molested. Kathleen identified the car she rode in with Mr. Bogan at the scene. The police rang the door bell and an adult voice responded. The officers identified themselves as the police and a twelve year old boy, Wally, answered the door. The police asked Wally if he was home alone. Wally claimed he was home alone, which was inconsistent with the adult voice that responded when the police rang the doorbell. The police walked with Wally up the steps to the landing of the second floor apartment. Wally acted timid and unsure when answering questions relating to the whereabouts of his mother. The police did not immediately enter the apartment. Wally answered a phone call which turned out to be his father. One police officer asked to speak with Wally’s father and Wally allowed him to do so. The officer entered the apartment to answer the phone while the other officers waited outside the door. The officer in the apartment noticed a man fitting Kathleen’s description in his plain view and instructed the officers to enter in and question the person. The person identified himself as ‘Anthony Green.’ The police officer on the phone with Wally’s father learned that Wally was staying with Anthony Bogan. Anthony Green indicated Anthony Bogan was his maiden name and he was read his Miranda rights. At headquarters, the police discovered Mr. Bogans had several warrants of for his arrest and read him his Miranda rights again.
Holding: The Court addressed the community caretaking exception to the warrant requirement of the federal and state constitutions. The court stated that the police officers served as community caretakers by inquiring of a parent why a child was home alone on a school day in an apartment where a suspected crime had occurred. The court concluded an independent inquiry of the police concerning a child’s safety and welfare did not constitute an unlawful search. The court also held because the officer was lawfully on the premises when he observed the defendant in his plain view, he had a right to direct his fellow officers to question the defendant. As a result of this lawful chain of events, the statements made by the defendant after waiving his Miranda rights were admissible at trial.
Opinion: I believe the court made the correct decision in this case; however, the community caretaking exception to the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution should be extremely limited. The facts of this case allow the exception to be invoked primarily due to the conduct of the police officers at the scene.
The criminal investigation and the child’s safety concerns were issues the police officers were dealing with concurrently. Even though the investigation led the police to the seemingly unattended child, this should not preclude the police from assuring that the child was being supervised. If the officers had entered the apartment initially or had dispersed and attempted to search the apartment the exception would not apply. In this case, the officer did not engage in any type of investigatory action relating to the criminal case. The officer merely requested to speak with the child’s father while the child was on the phone with him. In the officer’s plain view, he saw a man fitting the victim’s description of the perpetrator and acted objectively reasonably thereafter.
Thanks to law student Anthony D'Antonio for his summary.
Facts: A fourteen year old girl, Kathleen, was found alone and crying. She stated she had been molested earlier that day by a family friend, Anthony Bogan. The police were notified and Kathleen gave a description of Mr. Bogan. Kathleen proceeded with the police to the area where she had been molested. Kathleen identified the car she rode in with Mr. Bogan at the scene. The police rang the door bell and an adult voice responded. The officers identified themselves as the police and a twelve year old boy, Wally, answered the door. The police asked Wally if he was home alone. Wally claimed he was home alone, which was inconsistent with the adult voice that responded when the police rang the doorbell. The police walked with Wally up the steps to the landing of the second floor apartment. Wally acted timid and unsure when answering questions relating to the whereabouts of his mother. The police did not immediately enter the apartment. Wally answered a phone call which turned out to be his father. One police officer asked to speak with Wally’s father and Wally allowed him to do so. The officer entered the apartment to answer the phone while the other officers waited outside the door. The officer in the apartment noticed a man fitting Kathleen’s description in his plain view and instructed the officers to enter in and question the person. The person identified himself as ‘Anthony Green.’ The police officer on the phone with Wally’s father learned that Wally was staying with Anthony Bogan. Anthony Green indicated Anthony Bogan was his maiden name and he was read his Miranda rights. At headquarters, the police discovered Mr. Bogans had several warrants of for his arrest and read him his Miranda rights again.
Holding: The Court addressed the community caretaking exception to the warrant requirement of the federal and state constitutions. The court stated that the police officers served as community caretakers by inquiring of a parent why a child was home alone on a school day in an apartment where a suspected crime had occurred. The court concluded an independent inquiry of the police concerning a child’s safety and welfare did not constitute an unlawful search. The court also held because the officer was lawfully on the premises when he observed the defendant in his plain view, he had a right to direct his fellow officers to question the defendant. As a result of this lawful chain of events, the statements made by the defendant after waiving his Miranda rights were admissible at trial.
Opinion: I believe the court made the correct decision in this case; however, the community caretaking exception to the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution should be extremely limited. The facts of this case allow the exception to be invoked primarily due to the conduct of the police officers at the scene.
The criminal investigation and the child’s safety concerns were issues the police officers were dealing with concurrently. Even though the investigation led the police to the seemingly unattended child, this should not preclude the police from assuring that the child was being supervised. If the officers had entered the apartment initially or had dispersed and attempted to search the apartment the exception would not apply. In this case, the officer did not engage in any type of investigatory action relating to the criminal case. The officer merely requested to speak with the child’s father while the child was on the phone with him. In the officer’s plain view, he saw a man fitting the victim’s description of the perpetrator and acted objectively reasonably thereafter.
Thanks to law student Anthony D'Antonio for his summary.
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