Appellate Court Boots Police Officers Arrest for Firearm and Marijuana Offenses when Police Officer Jumped a Fence into the backyard Based on the Smell of Marijuana and Tip that Firearm was Hidden inside the Backyard Dog House.

Prepared as a Public Service to the People by the Law Office of Vincent J. Sanzone, Jr., Esq.

State v. Peter Samuell, Appellate Division decided February 25, 2015.

In this case Trenton Police Officers jumped a fence of a residential home to investigate the alleged smell of marijuana and tip that a firearm was hidden in the backyard dog house.

When the police surrounded the house the officers requested that the suspect/owner of the house submit through a patdown through his chain link fence.  When the suspect refused the officers jumped the fence, detained the suspect and entered the house to conduct a warrantless search of the house.  In the house were found drug manufacturing equipment, large amount of marijuana and AK-47 machine gun.

The Superior Court trial court denied the defendant’s  upheld the warrantless search holding that the facts alleged were sufficient to establish probable cause for the warrantless search. The Appellate panel reversed the conviction and granted the defendant’s motion to suppress. In this case the prosecutor presented no evidence that an exception from the warrant requirement applied.

At this stage of the investigation there was no probable cause to detain the defendant and enter the home to continue their investigation.  Although the police were justified in jumping over the fence to conduct a Terry search for weapons of the suspect, which under the facts was articulable and reasonable, those same facts did not authorize the police to enter private property to further their investigation. State v. Jefferson, 413 N.J. Super. 344, 354-55 (App. Div. 2010).  As always, in New Jersey

"minimally intrusive" police conduct must occur at a location in which the police are authorized to be (non-private property). State v. Maryland, 167 N.J. 471, 486 (2001)

In this case there was no doubt that the fence around the backyard was intended to keep everyone out, including police officers investigating a crime.  This protected cartilage is part of the home. United States v. Dunn, 480 U.S. 294 (1987).

The court held that although the officers alleged “smell of  marijuana established probable cause to suspect unlawful possession of marijuana by one or more occupants of the house. But the smell of marijuana and the other information the police learned was still not sufficient for a warrantless police entry.”  In Welsh v. Wisconsin, 466 U.S. 740, 750, (1984), the United State Supreme Court held.  "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries

While the alleged smell of marijuana provided probable cause, it did not establish exigent circumstances for a warrantless entry. Johnson v. United States, 333 U.S. 10, 12, (1948).  In that case an informant told police of persons smoking opium in a hotel room, which the court held was insufficient to enter the room without a warrant.

Again, State v. Holland, 328 N.J. Super. 1 (App. Div. 2000), rev d on other grounds, 176 N.J. 344 (2003), the court held that the alleged smell of burning marijuana may establish probable cause but not exigent circumstances to make a warrantless entry and to search when it shows nothing more than probable cause that a disorderly persons offense might have been or being committed.  Lastly, the court found no exigent circumstances as to why a warrant could not be obtained when the police had no evidence that a crime was being committed other than a disorderly person’s offense. State v. Holland, 328 N.J. Super. at 10-11; see also Welsh, 466 U.S. at 753-54.

It appears again that the New Jersey courts are closing another false excuse by law enforcement to justify an illegal search by claiming, “I smelled marijuana.”  Of course it is impossible for a defense attorney to disprove, what someone claims he or she smelled.  Law enforcement knows that a “smell” cannot be tagged into evidence.

Quotes of the Day:  "Three things I cannot escape: the eye of God, the voice of conscience, the stroke of death. In company, guard your tongue. In your family, guard your temper. When alone guard your thoughts." - Venerable Matt Talbot

"It is not a unity of religion we seek but a union of religious people. We may not be able to meet in the same pew, but we can meet together on our knees (as Christians)"

Archbishop Fulton J Sheen.

Law Office of Vincent J. Sanzone, Jr., Esq.

(908) 354-7006

277 North Broad Street

Elizabeth (Union County), New Jersey 07207

Criminal Defense Lawyer, for Union, Essex, Hudson, Middlesex, Bergen, Somerset counties.

Prosecutor Must Reveal Confidential Witnesses Prior Cooperation with Law Enforcement under New Jersey Law.

Prepared as a Public Service by the Law Office of Vincent J. Sanzone, Jr., Esq.

In State v. Hernandez the New Jersey Appellate Division held that in all cases in which the prosecutor will use a confidential informant to testify (CW), the State must provide to defense counsel all cooperation agreements as well as details regarding the extend of the cooperation.  In this case the prosecutor filed an interlocutory appeal, appealing the trial court’s ruling that the defendants were entitled to broad discovery regarding a confidential witnesses cooperation with law enforcement in other cases.  The appellate division granted the appeal and affirmed the trial court.

In this case the CW engaged in three cocaine buys with the defendants.  The State intended to have the CW testify as to those buys.  In discovery the prosecutor provide the name of the CW, his criminal history and a copy of the  cooperation agreement which the State had with the CW.

The defense requested additional discovery in the form of the nature and extend of cooperation, as well as any benefits which the CW received for working with the prosecutor on the cocaine purchases.  Specifically, the defendants requested a privilege log detailing internal memorandum and correspondences between the prosecutor and the CW which the prosecutor deemed privileged.  In addition, defendants requested any audio tapes of the CW, his e-mails to the prosecutor, and any statements that the CW had made, which included any investigation reports regarding the CW on the other cases in which the CW had cooperated.

The trial court agreed with the defendants and ordered the discovery subject to any redactions as to specific names and address’ in the other cases.  This included the requirement that the prosecutor electronically search its data base to provide defense with information regarding all past cooperation in which the CW was involved.

In deciding this case the appeals court cited the seminal case Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1197, 10 L. Ed.2d 215, 219 (1963). In that case the State is required to provide the defendants with the record of any statements, of any individual with relevant information or evidence in the case, which are within the possession, custody or control of the prosecutor. Citing Rule 3:13-3(b)(1)(G). In addition to that the State is also required to provide defense counsel with all other exculpatory information or material, which would include pending charges, plea bargains or cooperation agreements for which a witness may be seeking favorable treatment for his trial testimony. State v. Long, 119 N.J. 439, 488-89 (1990).

Before you decide on hiring a criminal defense attorney you should carefully review the criminal attorneys and decide whether that attorney has the experience and competency in handling your criminal case.

Food for thought:  About twenty-years ago the welfare state was being assaulted, along with the export of livable working wages oversees by the rich and powerful.  To take its place was the punishment state promoted by both the republican and democratic parties.  This downward escalator for the working class and poor, by taking away their jobs  and safety net, created a vast army of unemployed poor.  Capitalism needed a replacement and the penitentiary was their answer.  The prison population in the United States has increased every year and we have gone from a working state to a prison state.

Quote of the Day: Theologian Cardinal Baronius’s once wrote, “The Scriptures tell us how to go to heaven, not how the heavens go”

Law Office of Vincent J. Sanzone, Jr.

277 North Broad Street

P.O. Box 261

Elizabeth (Union County), New Jersey 07207

CriminalDefenseNJ.com

Office Phone No. (908) 354-7006

Cell Phone No.   (201) 240-5716

Dated:  January 30, 2015

New Jersey Criminal Law Defense Attorney, Lawyers, and Attorneys, serving Union, Hudson, Essex, Bergen, Monmouth, Ocean, Middlesex, Somerset and Mercer counties, Attorney Reviews, Review of Union County Criminal Lawyers.

“Justice” in the Red Bank New Jersey Municipal Court; Is there a double standard in the Red Bank Municipal Court for Police Officers?

Presented to the People as a Public Service from the Law Office of Vincent J. Sanzone, Jr., Esq.

On May 14, 2007, Red Bank municipal court judge, William Himelman (case was transferred to Red Bank for possible conflict) found the Wall Township Police Chief, Bernard Sullivan not guilty of driving while intoxicated.  The evidence against the police officer, as testified by the arresting officer, was that the chief was driving recklessly by failing to maintain lane, going through a red light, reckless driving and failing a breathalyzer test, blowing double the legal limit.  Sullivan admitted having four to five beers when stopped, but contested that he failed the field sobriety tests that were administered to him at the scene.

After the verdict the Star Ledger quoted Red Bank Municipal Prosecutor James N. Butler as saying he was shocked by the judge’s decision, and stated, “To me, it set the criminal justice system back a long way, because what it said is, Don't arrest a cop.” 

In the judge’s oral decision he stated, "I didn't see (Sullivan) staggering, I didn't see him falling, I saw him walking around," Himelman said. "What I saw on that surveillance tape was a man who had five beers, not someone who had 10 beers."  However, as this judge knows whether someone can handle their liquor is no defense to a DWI charge, and rarely if ever, will a municipal court judge find a defendant not guilty when he fails the field sobriety tests?  Sullivan’s failure on the field sobriety tests was also witnessed by superior officer Lancellotti who was called to the scene.

Further, the municipal court judge completely ignored the testimony of Patrolman Verrecchia who testified that when he pulled Sullivan over at 12:35 a.m. after he saw Sullivan's car, headed north on 16th Avenue in the West Belmar section of town, run a red light at Route 35, nearly colliding with a car on the highway.  Further, he testified that Sullivan continued across Route 35 and headed up Belmar Boulevard toward his Wall home on the wrong side of the road until Verrecchia pulled him over near Marconi Road, Verrecchia testified.

Further, the municipal court judge completely ignored officer Verrecchia testimony that Sullivan breathalyzer reading was for the first test .19 and for the second test, .20 (double the legal limit for that time).

According to the Asbury Park Press interview of the judge after the verdict, Himelman was not embarrassed to say that it was the first not guilty verdict he has made in the last five years in a DWI case while sitting on the bench in Red Bank. I wonder how many individuals were found guilty in Red Bank by him and how many lost their jobs because of their loss of a driver's license?

This unfortunately is not an isolated incident and further reinforces the need for municipal courts in New Jersey to be consolidated in joint municipal courts in which a number of towns join their municipal courts into a joint municipal court.  Further, that these joint municipal court judges be appointed by the governor as Governor Christi has proposed. Not only will this save taxpayers money, by consolidation, but also eliminate some of the conflict of interest, which is rampant in municipal courts throughout the state.  Specifically, because the municipal court judge receives his or her paycheck from the town in which he must generate revenue, and hence, the inference that he or she must find everyone guilty to generate revenue.  Or as this judge admitted never find anyone not guilty in the last five years in every DWI case, except in one case in which an law enforcement is charged with DWI, notwithstanding all the evidence against the police officer?  Nobody is questioning the integrity of the municipal court judge in this case, however, it surly makes you wonder.  Is there any justice in municipal court in Red Bank?

Law Office of Vincent J. Sanzone, Jr., Esq.

P.O. Box 261

277 North Broad Street

Elizabeth (Union County), New Jersey 07207

(908) 354-7006

CriminalDefenseNJ.com

Monmouth, Essex, Union, Middlesex, Bergen, Hudson, Somerset County Criminal Defense Attorney, NJ Criminal Lawyers, NJ Criminal Defense Lawyers

The Role of a “Criminal Justice Lawyer.” Time to Reform the Criminal Justice Jury System and Permit the Jurors to Hear All The Truth.

A philosopher once wrote that the only true test of any law is whether it manifests itself in the giving of justice. Everybody talks about justice, but do we really understand what justice means, and does justice have any place in the criminal justice system? 

Many cynics would say that justice usually goes to the highest bidder or the wealthy litigant or defendant.  There is much truth to that. 

Justice of course can be defined in many ways, most notably in the way it is defined.  Justice for one is not necessarily justice for another, and justice can be defined by an individual’s subjective ideas of right, wrong, good and evil.  Of course, any of these principals can be influenced by ones particular religious ideas, or lack of, prejudices, bias, educational, mental, psychological or physical disabilities. Accordingly, if you had a room filed with a hundred men of women of different political, ethic, religious, economic and racial backgrounds, you would get a difference opinions of what is justice as it applies to any given set of facts and circumstances.  Justice for someone would be injustice to others.  The hedge fund or banker in the group would in many cases believe that he was “entitled to make millions”, and it was justice that he earn that salary, while the day laborer would shake his head an say it was injustice that he should make the minimum wage to support his family of four.

Likewise, some in the group would not think twice about judging as a juror in a criminal trial of finding a poor inner city young man or woman guilty of selling a small quantity of drugs, arguing that they were performing justice.  They might argue that they did this in the name of justice knowing that the consequence of that judgment would send that person to prison for many years or even decades, because “he got what he deserved”, not understanding that the human being which they have righteously judged never had the chance that they did in life.

In truth the factual situations are endless in which people disagree in the most fundamental way in which they agree or disagree in their concept of justice.

In truth how can anyone judge anyone else?  We see an action, but we never see a motive.  The reason why people act or fail to act in any given situation can depend on countless factors.

Does the jury system promote justice?  How can jury have any say in the justice system if juries are never told the entire truth, the full truth, of every case, and about the people to whom they are to judge.  Why in the criminal justice system are criminal juries never told the punishment and sentence of their guilty verdict?  Juries are never told, and under New Jersey cannot be told, that the defendant who is found guilty will be exposed to, such as extended terms of imprisonment, or periods of parole ineligibility if they determine someone is guilty of the charges.  Juries are told that they can only be judges of the facts.  Why should the jury not be told that if they believe the law to be unjust under the particular circumstances, that they can render a not guilty verdict?  Is it not right and just to education the jury to the full consequences of their decision?  Should the jury in a criminal case not know everything about the fellow human being in which they are to judge?  To isolate the jury with limited knowledge renders their decision making process inadequate and flawed.  In such a flawed system it renders the jury to be a mere tool of the State, and not true judges of the facts, which the law is meant to be.  Giving lip service to justice with words only is not justice.    I

Law Office of Vincent J. Sanzone, Jr.

PO Box 261

277 North Broad Street

Elizabeth, N.J. 07207

908-354-7006

CriminalDefenseNJ.com

YourCivilRights@gmail.com

Lawyers in Elizabeth NJ, Attorneys in Elizabeth NJ, Elizabeth Criminal Lawyers, NJ Criminal Justice Lawyers, NJ Lawyers, NJ Criminal Lawyers

Third Circuit Rules That Trooper Beating Case Goes To Jury

The Federal Third Circuit Court of Appeals, Justices, Trump-Barry and Fuentes, ruled on August 29, 2007, that District Court Chief Judge, Joseph E. Irenas, did not err in denying New Jersey State Police Officers, Parry, Brown, Fife, and Guliano, summary judgment, and that they must face and submit to a Camden County Federal Jury for a determination how much excessive force they used against Aundrey Green, and how much he is to be compensated, for the beating in which he suffered on the night of April 22, 2002 by Troopers, Parry, Fife, and Brown.

The case can be found at Green v. State Police, 2007 U.S. App. LEXIS 20693

Vincent J. Sanzone, Jr., Esq.
P.O. Box 261
277 North Broad Street
Elizabeth, N.J. 07207
(908) 354-7006
CriminalDefenseNJ.com
YourCivilRights@gmail.com

Why The System Is Not Even Close To Fair Especially Fair For the Middle Class

Why Do Criminal Defendants with lots of Money usually win their entire case outright, or obtain a very favorable result? Money. I know this is not a novel thought, but let's look at some of the reasons why the money works. Fallacy number one is that the defendant who has money hires the best lawyer. Not so, most of the "marquee" criminal defense lawyers who command the big bucks, usually know less law, and are often ineffective trial litigators with little passion and zeal for their client. But if that is so, why do they sometimes achieve more favorable results than average attorney? The answer is, support staff, investigators, expert witnesses, and their ability to work full time and many hours on the client's case.

You see, very few working middle class defendants, who earn a living and do not qualify for the services of the public defender, and their ancillary services, such as expert witnesses, investigators, etc. , can afford to hire a lawyer who will provide them with a competent vigorous defense. You see, most middle class defendants shop around for the cheapest lawyer, negotiating like they are shopping for a new or used automobile. Why because they do not know how the legal system works, and they do not understand the time and effort it takes for a criminal defense attorney to win their acquittal. Instead they shop for the cheapest lawyer, and when that cheap lawyer gives them little or no defense, or forces them to take a plea for which they are innocent, they act surprised.

Unfortunately, the legal system works on money, and it is no different than any other fact of life. Money does buy justice, and until the system changes, beware of the cheap lawyer. Also, beware of the lawyer you guarantees, any lawyer who guarantees a victory is unethical, and the client should run away. Many clients do not understand that even with the most simple criminal trial, lasting only a few days, that a competent effective attorney must devote 30 to 40 hours of outside court trial preparation, such as preparation of opening and closing statements, the review of police reports, and the preparation of cross-examination of each potential witness for the state, as set forth in each police report. Not to mention, the review of the applicable case law and jury instruction.

Remember, in closing, for any indictable criminal charge, which requires a trial, any attorney who charges less than $10,000.00 as his retainer is not doing his client a service, but rather a disservice, because such an attorney, unless right out of law school, with no experience, can not afford to put his best efforts in time and talent in his client's trial.

Vincent J. Sanzone, Jr., Esq.
Elizabeth, New Jersey

CriminalDefenseNJ.com
YourCivilRights@gmail.com