All posts by Eric R. Breslin

The Supreme Court of New Jersey Clarifies “Plain View” Seizures (Sort of): State v. Gonzales

“(P)lain view” seizures were recognized by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971).  The doctrine is true to its name: it permits warrantless seizures of illegal contraband that is in the “plain view” of law enforcement.   This is the law in New Jersey too.  State v. Bruzzese, 94 N.J. 210 (1983).

There is common sense at work here.  If law enforcement finds evidence out in the open, it would be unduly burdensome and illogical to require the State to leave the evidence in place while it secures a warrant to support the necessary seizure.

But this exception to the Fourth Amendment’s warrant requirement requires a dash of kismet and a dollop of good luck: law enforcement must be in the right place, at the right time, to discover and seize the evidence. If they are not, then they cannot.

Yet, what if such a happy fortuity is more than luck, but is also the product of some prior planning or scheming?  What if law enforcement’s actions are challenged as pre-textual?  When and how is the subjective intent of the police to be considered in evaluating the validity of a “plain view” seizure? Continue reading The Supreme Court of New Jersey Clarifies “Plain View” Seizures (Sort of): State v. Gonzales

The Supreme Court of New Jersey Narrows the State’s Expungement Statute

N.J.S.A 2C: 52-2(a) permits the Superior Court to expunge convictions of certain classes of offenses under certain enumerated circumstances. As one example, the applicant seeking the remedy must have been “convicted of a crime,” but “…not convicted of any prior or subsequent crime.” The statute also bars from eligibility those who plead guilty in one proceeding to multiple offenses committed within a short period of time.

But what exactly does this last limitation mean in practice? Last week, the Supreme Court of New Jersey addressed and answered this question in In the Matter of the Expungement Petition of J.S. (A-84-13) and In the Matter of the Expungement of the Criminal Records of G.P.B, (A-2-14). So now while a quantum of doubt has been eliminated (and that is always a good thing), the statute is now more restrictive (and, for defense practitioners, this is decidedly not a good thing). Continue reading The Supreme Court of New Jersey Narrows the State’s Expungement Statute

Can the “private search” doctrine serve as an exception to the Federal and State of New Jersey constitutional requirement that a warrant issue in advance of a search of a private home? The Supreme Court of New Jersey’s decision in State of New Jersey v. Ricky Wright (May 19, 2015)

The “private search doctrine” is a semi-obscure corner of Fourth Amendment jurisprudence. At its base, the doctrine addresses instances in which a private actor (i.e., not a law enforcement officer) conducts a “search” and discovers some species of contraband or proof of illegal conduct.   That person must then proceed to notify law enforcement and/or present them with the item in question. Law enforcement must then proceed to duplicate the private search without first obtaining a judicial warrant.

Does this happen every day? Probably not. Yet, it does happen enough to be the subject of a recent decision by the Supreme Court of New Jersey, which opinion recounts a diverse line of state and federal authority on this very issue. Continue reading Can the “private search” doctrine serve as an exception to the Federal and State of New Jersey constitutional requirement that a warrant issue in advance of a search of a private home? The Supreme Court of New Jersey’s decision in State of New Jersey v. Ricky Wright (May 19, 2015)

Can an audio tape with a two minute “gap” in it be admitted into evidence?: The Supreme Court of New Jersey encounters a claim of undue prejudice in State of New Jersey v. Kingkamau Nantambu (A-97-13, Decided April 29, 2015)

Audio tapes and video tapes are a frequent coin of the realm in both federal and state criminal practice. It is increasingly rare to find a major prosecution in which the government’s discovery does not now include some form of recording. There are multiple paths of varying effectiveness through which intrepid defense counsel can seek to exclude this evidence. One of the more straightforward is if the recording in question can be argued to have been incomplete in some way.
Now, one might assume that a partial recording, even if relevant, would be so inherently suspect as to preclude admission under Rule 403 of the Federal Rules of Evidence or one of its state law counterparts. But this would be a perilous assumption. Incomplete or partial tape recordings can be admitted, once authenticated and found to be trustworthy, although it can be a challenging and convoluted analysis. One such scenario was addressed last week by the Supreme Court of New Jersey in State of New Jersey v. Kingkamau Nantambu. Continue reading Can an audio tape with a two minute “gap” in it be admitted into evidence?: The Supreme Court of New Jersey encounters a claim of undue prejudice in State of New Jersey v. Kingkamau Nantambu (A-97-13, Decided April 29, 2015)

Can you receive a term of life imprisonment for forcing someone to accompany you to a different room in their own house?: Justice Scalia and a unanimous Supreme Court say “yes” in Whitfield v. United States of America, (though to be fair, I should note that Mr. Whitfield had just tried to rob a bank).

18 U.S.C. 2113 (e) has a long and venerable history, even by the storied standards of the federal criminal code. It was originally enacted in 1934 in response to “an outbreak of bank robberies committed by John Dillinger and others” Carter v. United States of America, 530 U.S. 255, 280 (2000) (Ginsburg, J., dissenting).

In addition to robbing banks, these malefactors would, logically enough, then seek to avoid apprehension. In order to do this, they would frequently pause to take hostages, thus distracting and/or hamstringing pursuing law enforcement. Continue reading Can you receive a term of life imprisonment for forcing someone to accompany you to a different room in their own house?: Justice Scalia and a unanimous Supreme Court say “yes” in Whitfield v. United States of America, (though to be fair, I should note that Mr. Whitfield had just tried to rob a bank).

Does the Government Need a Search Warrant to Obtain Cell Phone Location Data?: Within the Past Month, the Fifth Circuit said “No” while the New Jersey Supreme Court said “Yes”

The historical location data of a given individual’s cellular telephone can be put to a startling array of uses by state and federal law enforcement. Really, it is not hard to figure out how. Cellular phones send out signals at short time intervals in order to establish the presence of a nearby cell tower and to connect to it as required. This location information is recorded and preserved by the industry’s various service providers—T-Mobile, Sprint and the like.

The police have figured it out. If one can find the cell phone; in most cases, you can find its user and/or owner.

Continue reading Does the Government Need a Search Warrant to Obtain Cell Phone Location Data?: Within the Past Month, the Fifth Circuit said “No” while the New Jersey Supreme Court said “Yes”

Supreme Court Permits DNA Sampling of Persons Arrested, But Not Yet Convicted, in Maryland v. King

We wrote earlier this year on the Fourth Amendment issue presented in Maryland v. King: whether a Maryland statute that allows the state to obtain DNA samples via “cheek swabs” from arrested individuals, as one step in the state’s routine booking and processing procedure, is an invalid warrantless search.

Continue reading Supreme Court Permits DNA Sampling of Persons Arrested, But Not Yet Convicted, in Maryland v. King

Update on Missouri v. McNeely: Supreme Court Holds Against Warrantless Blood Tests (Usually).

We wrote in February about the issue pending before the United States Supreme Court in Missouri v. McNeely: whether police can dispense with a search warrant and draw blood from an individual suspected of driving while intoxicated.

Well, in April, the Supreme Court ruled and in a decision authored by Justice Sotomayor held that usually police must obtain warrants in such situations.

Continue reading Update on Missouri v. McNeely: Supreme Court Holds Against Warrantless Blood Tests (Usually).

Can Federal Judges Play Any Role in Plea Negotiations? The Rules Say “No”, But What Should the Remedy Be If the Rule is Broken?

Federal Rule of Criminal Procedure 11(c)(1) is clear. It states that federal judges “must not participate” in plea discussions between a defendant and the United States. There are sound policy reasons that support such a strong line. There is an inherent friction between the roles of judge and participant in plea negotiations. The involvement of a district court judge or Magistrate-Judge in what is by nature a rather adversarial process could easily be perceived a coercive by a defendant, especially if the judge comments, even in passing, on the case’s eventual outcome or the quality of the evidence.

Continue reading Can Federal Judges Play Any Role in Plea Negotiations? The Rules Say “No”, But What Should the Remedy Be If the Rule is Broken?

Duane Morris Partner Eric Breslin to Moderate “Brave New World: What the Government’s New War on Computer Crimes Means for Privacy Interests”

Duane Morris partner Eric Breslin will moderate “Brave New World: What the Government’s New War on Computer Crimes Means for Privacy Interests” at the American Bar Association (ABA) Criminal Justice Section’s Fourth Annual Prescription for Criminal Justice Forensics. The panel will occur on Friday, June 7, 2013 from 4 p.m. to 5 p.m.

Click here to read more about the event.