Warrantless Searches

Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions.” State v. Pineiro, 181 N.J. 13, 19, 853 A.2d 887 (2004). Failure to obtain a warrant or meet the burden of proof of one of the exceptions to the requirement of a warrant is reason to bring a Motion to Suppress illegally seized evidence in order to obtain a not guilty result for a criminal defendant.
When no warrant is sought, the State has the burden of proving by a preponderance of the evidence that the warrantless search falls within one of the few well-delineated exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973)
In many warrantless search and seizure matters "probable cause" is the stated reason for the failure to obtain a warrant. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), defined probable cause as existing "where ‘the facts and circumstances within ... [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.” Of course this definition leaves much to the discretion of the officers and has served as both the reason for success and failure of multitudes of suppression motions.
In obtaining a warrant the police must set forth a sound basis for undertaking a search and seizure prior to said undertaking, without the benefit of any further knowledge or evidence obtained during the search itself. By undertaking a warrantless search and seizure the police are able to avoid some of the investigation otherwise required in building their case against the the accused by merely using the evidence obtained in the warrantless search to later obtain facts unknown at the time of the search which they may then be used to secure a conviction against a criminal defendant.
At all times an individual has a right to certain expectations of privacy in his or her belongings and person. What constitutes a violation of the Fourth Amendment rights of the person against unreasonable search and seizure is a regular and hotly contended matter within the Courts and anyone believing their Fourth Amendment rights to be free from unreasonable search and seizure should consult defense counsel to insure those rights are properly protected by suppression of any evidence seized in violation thereof.
For more information or representation in the event of a violation of Fourth Amendment rights visit HeatherDarlingLawyer.com.

Foreclosure frenzy

Who is responsible for the foreclosures we are constantly reading about in the news these days? Lately the culprits are the "robo-signers", previously it was the Wall Street derivatives market's demand for new products and before the blame was carved into parts it was simply called predatory lending. Is it really the fault of lenders or should Courts and lawmakers also be looking at predatory borrowing? Of course there were self-proclaimed "investors" brainwashed by the likes of Robert Kiyosaki into believing they could become the next real estate moguls by levaraging their funds, or in many cases their homes, only to find that leverage is a 2 way street and if money, from rent or re-sale, is not coming in faster than it goes out levarage spells trouble. When the market bubble burst and people stopped buying real estate at ever inflating prices or could not pay rent then all the Kiyosaki taught "investors" were hard hit. We can call that the cost of doing business for them and they can decide whether to blame Kiyosaki, the banks or themselves.
For individuals there are different stories and reasons for crisis but in most cases it comes down to greed. Sure the banks allowed people to turn their homes into personal ATM machines by writing second and even third mortgages against personal residences of borrowers so they could leverage the ever increasing "value" in their homes. The banks did not actually force anyone to take those mortgages. The banks, whether they failed review all applications, failed to accurately appraise properties or whatever other manner in which they failed to "protect" the borrower from the borrowers own greed did not actually force the borrower to accept the funds but rather enabled the borrower to do as he or she wished. The second class of individual borrowers now suffering are those who purchased as much as a lender would possibly allow based on "house of cards" funding where if a wind blew the structured "deal" would fall apart.
The wind that blew turned out to be a tornado as the market bubble burst but this was as much the borrower's fault as the lender's. The practice of saving was forgotten and people were living for the next indulgence they could impress their friends with. Even immigrants coming to this country and taking jobs as laborers were buying the so called "McMansions" based on wages that could hardly pay for a reasonable home.
Of course there are the unfortunate individuals who practiced sound spending and saving but suffered tragic accidents or illnesses and sadly are now experiencing the same difficulty as the greedy.
Now what of the savers who practiced sound spending who are paying ever increasing taxes and whose children and grandchildren are faced with the largest deficit this country has ever known. Should it be their responsibilty to save the banks who are now forced by the Courts and government to accept responsibility for the greed of consumers and write down these loans at huge losses only to be later "rescued" by the government at the ultimate expense of the frugal who are now the only ones still paying their bills? Or should those who enjoyed the spoils of their greed be made to actually pay for it this time by remaining in their homes and paying modified amounts for longer terms without the benefit of handouts or rescues which are shortly therafter followed by the extension of new credit lines likely be utilized by these individuals who have been taught they can have all the luxuries in life for free?
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Suing the Bar that Served You

Drunken drivers in NJ who were injured in automobile accidents while driving under the influence were long ago prohibited from suing the other driver for any injuries the drunk driver suffered in the crash but the Court is now about to decide whether they may sue the establishment that served them the alcohol. The Court has agreed to hear Voss v. Tranquilino to decide whether the legal provision indicating "a person convicted of, or pleading guilty to, DUI has no cause of action for his or her injuries" means no cause of action against the establishment who served them. The Court will hear arguments relating to the legislative intent of the statute which is presumably enacted to protect innocent parties from liability versus the legislative intent of the dram shop act which holds drinking establishments liable for serving visibly intoxicated individuals. The appellate Court decided that the law does allow suits by the injured drunken driver, as well as suits by victims of the drunken driver. The scope of liability of liquor establishments in NJ is in the balance in this decision.
For more information on NJ DUI or other NJ traffic matters visit HeatherDarlingLawyer.com.

DUI confusion

New ruling in NJ benefits drivers who fluently speak another language. Drivers stopped for DUI in New Jersey have the right to refuse to give a breath sample. Although refusal comes with automatic penalties, the penalties may be less severe than the DUI charge depending upon the circumstances.
The police officer is required to provide notice of the consequences of breath-test (Alcotest) refusal. Recently, a refusal conviction against a motorist in NJ was reversed due to the fact that the officer did not give notice of consequensce in a language understood by the motorist.
The purpose of notice requirements in statutes and regulations is exactly that- notice to the individual. If the individual being provided notice does not understand the notice provided then the legislative intent is defeated.
Of course this brings about problems for the prosecution in proving DUI matters as, while the specific language spoken by the detainee is ascertained and translators are sought and summoned to the site where the alcotest, or even field sobriety tests which are certain to be the next cases litigated as to the language requirement, the blood alcohol content diminshes at a rapid rate.
The individual claiming not to understand English bears the burden of proof so merely claiming not to understand may result in further legal trouble if a trial occurs and police investigation reveals otherwise. However, in the event of a true failure to understand there is an opportunity for the motorist to prevail.
For more information on DUI or other motor vehicle matters in NJ visit HeatherDarlingLawyer.com.

Prosecutorial discretion

In NJ criminal matters the prosecutor has discretion to proceed as the police have charged, downgrade the charges, or dismiss a matter completely. There are numerous reasons that each may occur but I shall only cover the most common here.
Most often, when a prosecutor moves ahead with the original charges and does not waiver as the matter moves toward trial it means the evidence against the accused is substantial and not easily refutable.
In the opposite situation, reasons a prosecutor may decide to dismiss a case are lack of amount or quality of evidence which offer no real link of the accused to the scene of the crime. There may be only one witness who is less than reputable. The attorney for the accused may succeed with a motion to suppress evidence or the prosecutor himself may find the police violated the accused's rights and obtained evidence illegally. There may be a determination that the interests of justice will not be served by prosecution as is often the case when the accused has an addiction and is instead directed to treatment. Finally, the accused may be standing trial in multiple jurisdictions for the same series of events and the prosecutor finds the overlap unnecessary.
In between the aforementioned situations is the situation where the prosecutor reduces the original charges. This may be based on lack of evidence, the fact that the matter was a first offense, contribution of a victim to the escalation of a situation or other fact specific reasons.
Clearly, the accused and his or her counsel may obtain indicia of the strength or weakness of the case against the accused from the prosecutor's treatment of the matter throughout the plea bargaining process.
For more information on criminal matters in NJ visit HeatherDarlingLawyer.com.
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Out of Bounds

Although this Blog is typically dedicated to legal matters, an article recently caught my attention which may bear largely on the global economy and I could not pass up the opportunity to call attention to this experiment.
An experiment in humanity. Knights Apparel company now pays a wage to employees in its Dominican factory which permits them to improve their quality of life in reponse to cries for more humitarian conditions for factory workers in foreign nations. If wearers of the apparel are willing to pay the price it will succeed but at what price to the rest of the world? In the midst of economic crisis, a major oil spill with results yet untold and natural disasters unfolding daily it seems a wonder that something is afoot which has such great possibilities to improve the lives of impoverished workers. It is hard not to wonder why now when thinking of the timing of this experiment. When America has a new class of "poor", the previous "lower middle class" who have lost jobs and are losing homes at previously unseen rates it is difficult to imagine the sustainability of an experiment exporting more American dollars in exchange for labor at higher rates. This monumental experiment will certainly be a true test of the heart of mankind and the choice between self-preservation or the elevation of others to an economic status never before seen in such areas, and eventually perhaps more similar to his or her own.
Not only is it a test of where man's heart is but may be a leading indicator of a new global economic trend which is reaching beyond Japan, China, Mexico and other regular U.S. trading partners who have seen fit to close the gap between the standard of living in the U.S. and their own countries.

Alcotest Under Assault Once Again

In NJ there is a new challenge to the Alcotest awaiting appeal. Evidence shows the Alcotest device, used to determine blood alcohol content for DUI suspects, routinely records breath samples of up to 25 seconds in length being provided yet most people are capable of providing only about a 6-8 second sample. This new information is being used to call into question the reliability of the purportedly self-calibrating machine. In the event the machine is in fact self-calibrating, this faulty sample time calls into question other indicia determined in State v. Chun to be scientifically reliable and therefore admissable as evidence of DUI.
Should the Alcotest be deemed unreliable the multitude of guilty pleas and verdicts for DUI based predominately on the Alcotest results are subject to review.
For more information on DUI or other NJ Municipal Court matters visit HeatherDarlingLawyer.com.