Can Distance From Public Facility Be Inferred In Criminal Matter?

In drug distribution cases, penalties increase substantially if the matter takes place within 1,000 feet of a school zone or within 500 feet of a public park, public housing, museum or other public place. In the case of State v. Stevens, the NJ Supreme Court heard oral argument as to whether the jury could infer that a defendant arrested with 54 baggies of heroin on his person when arrested at Martin Luther King Drive and Stegman Street in Jersey City had been within 500 feet of a public park when the actual distance measured from the park to the location of arrest was 520 feet. Hudson County Superior Court Judge Fred Theemling, Jr. denied defendant's motion for post-conviction relief based on failure of defendant's trial counsel to determine and present evidence of the actual distance. Judge Theemling denied the motion without conducting a hearing based on his assessment that the jury could have inferred the defendant had been within 500 feet of the park prior to the sale of the controlled dangerous substance (CDS) based on other evidence offered at the trial. The NJ Appellate Division affirmed with Judges Christine Miniman and Jack Sabatino deciding proof of actual distance from the park was not required and circumstantial inferences by jurors are permitted. The day after the NJ Supreme Court heard oral argument on the case, it was dismissed as being improvidently granted. This is unlikely the last this issue will be heard by the courts. During oral argument, the notion was raised that similar hearings are being denied routinely and defendants are being deprived of their rights. State v. Lewis, 866 A.2d 643 (2005), is the precedential decision on the matter in NJ. In Lewis, the court considered whether, although the defendant accepted money within 500 feet of a park but the cocaine was in another location more than 500 feet from the park, there was possession within the park for the purpose of increasing the level of offense charged. The N.J. Appellate Division found that defendant exercised control over the drugs at all times while he was within 500 feet of the park and constructive possession within the park existed for purposes of increasing the offense charged from third degree to second degree possession with intent to distribute. It is always the prosecution's burden to prove the elements of a crime charged. If you are charged with drug distribution or possession with intent to distribute you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession of CDS, theft, burglary, assault, domestic violence or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

When a drug dog alerted during a sniff test the officers found drugs the dog was not trained to detect the defendant sought to challenge the dog’s record in the field for false alerts. The defendant in Florida v. Harris was stopped and on 2 separate occasions and his vehicle was searched on both occasions as a result of a sniff test by the same dog. The initial search revealed ingredients used in manufacturing methamphetamines. The second search occurred while defendant was out on bail for the arrest during the first stop. The second search revealed no drugs. The United States Supreme Court heard the case and held that a defendant is entitled to challenge the evidence relating to a drug dog’s reliability. The defendant may challenge the dog’s reliability with his or her own witness, by cross-examination of testifying handler or both. Challenges may go to the dog’s training or actual field results. If you have been charged with a drug related crime in New Jersey, you should obtain experienced defense counsel immediately to insure your rights are protected any search and seizure was proper. Experienced counsel can challenged the State’s probable cause for the stop as well as any search which resulted in the prosecution’s finding of evidence. For more information on drug charges, controlled dangerous substances (CDS) in a motor vehicle or criminal law or municipal court matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

"Inevitable Discovery", "Independent Source" Doctrines and Suppression in NJ

In the recently decided case of State v. Pheasant, police received a tip from an informant that defendant was selling marijuana but during a controlled buy they arranged, police did not find marijuana on defendant's person. Police then questioned defendant regarding where the marijuana was and he stated it was in his truck and they could "go get it." Defendant was charged with possession of a controlled dangerous substance (CDS), possession with intent to distribute CDS, possession of intent to distribute CDS within 1,000 of a school and possession of CDS with intent to distribute within 500 feet of a public housing facility, park or public building. Defendant sought to suppress the marijuana due to a warrantless search. The State argued defendant voluntarily disclosed the location of the CDS and even if the defendant's privacy rights were violated, a search warrant would have issued and the CDS would have been rightfully seized under the "inevitable discovery doctrine." The judge decided the State met the elements of inevitable discovery but failed to correctly interpret the doctrine. Additionally, the trial judge erred in incorporating elements of the "independent source doctrine" into the analysis when the State made no claim of independent source. The NJ Appellate Division held that the officer's inquiry regarding the CDS triggered defendant's right to privacy and he only disclosed the location of the marijuana when asked. Inevitable discovery requires that (1) proper, normal and specific investigatory procedures would have been followed in the investigation; (2) given the facts, the investigation would have resulted in discovery of the evidence; and (3) the discovery of evidence would have occurred independently of the discovery by unlawful means. State v. Sugar, 100 N.J. 214 (1985). In contrast, the independent source doctrine requires (1) the State had probable cause to search even without the illegally obtained information; (2) the state would have sought a warrant even without the illegally obtained knowledge; and (3) and illegality was a mistake and not "flagrant police misconduct." Because the State addressed only the inevitable discovery doctrine at trial the matter is remanded for reconsideration under the proper elements of that doctrine and the State is precluded from raising the independent source doctrine after the fact. A judge must submit very specific reasons for finding you guilty in a criminal matter. If you are facing criminal charges, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on drug charges, CDS, distribution, drug possession, CDS in a motor vehicle or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Lack of Consent to Search Permits Withdrawal of Guilty Plea in NJ

Police received a tip from an informant about two black males selling drugs out of a car belonging to defendant. When police located the vehicle at the location provided, they notified defendant of their belief there were drugs in the trunk and requested permission to search. Upon denial of consent to search, officers proceeded to open the trunk and located the drugs the informant stated they would find. After entering a plea of guilty to two counts of third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, the defendant moved to withdraw his guilty plea. In spite of the fact defendant may have been notified of his right to file a suppression motion, and that his right would be waived by entering a plea of guilty, defendant chose to plead guilty. Defendant later filed a motion to withdraw his guilty plea. After the Court below denied the defendant the relief sought, the New Jersey Appellate Court found that the Motion to withdraw the plea should have been granted. Defendant's appeal was granted on his contention that he did not consent to the search of the trunk of his car. Defendant claimed that he expressly denied consent to open the trunk of the car but the police did not honor his rights. Because the search may have violated defendant's rights, granting defendant's motion to withdraw the guilty plea was appropriate. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you face criminal charges as a result of an illegal search, you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information regarding illegal search and seizure, 4th Amendment rights, drug charges or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

State Must Prove Operation of Vehicle to Win DUI Case in NJ

In NJ, courts have the discretion to broadly construe "operation" of a motor vehicle to include intent to drive while intoxicated. Intent to drive while under the influence has been proven by as little as sitting in a vehicle with the keys in your possession. There is not a true "motion" requirement for the vehicle and the arresting officer need not witness operation. However, no matter how amorphous the definition of "operation" may be, the fact remains that the prosecution bears the burden of proving the defendant was impaired, had the means to operate a vehicle in very close proximity and the intent to operate said vehicle while still under the influence of drugs or alcohol. A DWI in New Jersey carries serious consequences. If you are charged with driving under the influence of alcohol, illegal drugs such as heroin, cocaine, marijuana or ecstasy or prescription drugs such as oxycontin, percocet, roxycottin, valium or other drugs which may hinder your ability to drive, even if you have a prescription for them, you should consult an experienced DUI attorney immediately in order to ensure your rights are protected. Before conceding guilt, your matter should be fully reviewed by an experienced attorney to prevent you from being convicted when the state does not have adequate evidence to prove it's case. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you are charged with a crime, you should consult an experienced DUI attorney immediately in order to protect your rights. For more information on driving while intoxicated, driving under the influence, controlled dangerous substances (CDS) in a motor vehicle or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com.