Thursday, October 26, 2017

When You Are Served with a Search Warrant

When You are Served with a Search Warrant
Search warrants allow for law enforcement to search property in the event that they have probable cause to do so. When they search the location, they are looking for evidence that can be incriminating. Without a search warrant, the police cannot access and search your home without you giving them the green light. If the search is in an effort to protect you or other innocent parties, authorities can search property without a warrant.
Requirements of a Search Warrant
There are four requirements that must be met in order for a search warrant to be valid:
1.    The warrant must specify the specific location and items that will be searched and seized in the event that the authorities find what they are looking for.
2.    The police must be able to prove that there is probable cause that gives them reason to search a particular location.
3.    A judge must approve the search warrant.
4.    It must be filed by the police.

When a Search Warrant is Served
Prior to allowing the police to search the area that the warrant specifies, you must first look at the warrant to confirm that it is valid.
The Date
A warrant can be valid for as long as items outlined in the warrant can be located. There is really no specified length of time that a warrant is valid for but generally, they should be less than two weeks old.
Address
When inspecting the warrant double check to make sure that the address is correct. There have been instances where the incorrect property has been searched. Not only is this a hassle to those involved, it is also a waste of time and resources.
Signature
It is important to check that the warrant was signed by a judge. When the judge has signed the warrant it is considered valid as they have consented to the search taking place.

When a Warrant is Invalid

Always inform the police if you notice an error in the police report. In the event that the warrant does not have the correct information, you have a right to deny them entry into your home or property. Despite this, the police may decide to search your house. If this occurs, any of the evidence that the authorities find in their search could be deemed inadmissible in court. An attorney who specializes in criminal defense, can help to protect your rights throughout this process.

Always contact a defense attorney if you have concerns or believe your rights were violated when a search warrant was served. 

Thanks to authors at Greenberg Lawyers for their insight into Criminal Defense Law.



Tuesday, January 24, 2017

2017 BAIL REFORM IN NEW JERSEY: DETENTION HEARINGS, RISK ASSESSMENT, DEFENDANT’S RIGHTS

2017 BAIL REFORM IN NEW JERSEY:
DETENTION HEARINGS, RISK ASSESSMENT, DEFENDANT’S RIGHTS


            As of January 1, 2017, bail reform in the state of New Jersey has become the hottest topic in criminal law. Everyone is still adapting to the new way bail works in the State, many have no clue about it. Lawyers are realizing that they may be appearing in court on behalf of clients on weekends, those who are arrested are learning they can be held for 48 hours before a risk assessment hearing is conducted. This post will explore how bail now works in New Jersey, so listen up because things are much different than what they used to be.

            The first thing to know is that New Jersey has moved away from a monetary based bail system ($$$ Money Bail) to a risk-based system. Currently when someone is arrested in New Jersey, the police now have more discretion than ever in deciding to issue a warrant-complaint or a summons-complaint. If the police decide to issue a summons-complaint, the defendant will be released on their own recognizance. This means the individual arrested will just be given a document stating what they are charged with and when they need to appear in court; they do not need to post any bail. Summons-complaints typically will be issued to those facing non-violent offenses, a perfect example is someone charged with drug possession.  

            If a person is arrested and issued a warrant-complaint they will be detained and held for up to 48 hours while a Pretrial Risk Assessment is completed.  A warrant-complaint can be issued for those charged with felonies or disorderly persons offenses (misdemeanors). This is the most important time to hire an attorney. We are now living in a time where a bail-bondsman will no longer be contacted before an attorwarrant-summons, it’s crucial to hire an attorney immediately!  
ney is hired. Simply put, if you are being held on a

            Why is this important? This is important because a person who was arrested and issued a warrant-complaint will be held for up to 48 hours before a hearing is conducted, a hearing in which they will need an attorney arguing on their behalf for a release with minimal terms. The scary part about the new bail system is that the State can argue that you should not be released at all and move for detention (no release at all). This is why it is important to hire an attorney immediately.

            The court will use a Risk Assessment Tool, which is objective and standardized, in measuring the likelihood that the defendant will commit new crimes if released, if the crime they were arrested for was a violent crime, and the likelihood of them failing to appear in court. Risk measures are based on data including the defendant’s age, current charge, prior conviction and sentences, and the amount of prior times they failure to appear in court when scheduled. The decision to release and the terms of the release are based on all circumstances, the risk assessment conducted by pre-trial services, and the recommendation made by pre-trial services. Pretrial services uses a point system known as a Risk Scale to determine the likelihood that new criminal activity will be committed and the likelihood that the defendant will fail to appear in court (flight risk). The risk scale will determine, based on the point assessment, whether they are a high risk offender or low risk offender.

            At the end of the hearing a determination is made on whether the defendant will be released without any bail conditions, released with conditions, released after paying a monetary bail ($$$) to assure appearance in court, released with some combination of monetary bail and conditions, or if they will not be released and the judge orders a detention hearing. If the State files a motion to request detention (no release), a detention hearing will be scheduled and heard by a New Jersey Superior Court judge between 3-5 days. This means a defendant can be sitting in jail for multiple days before a determination is made.

            A defendant has certain rights at a Detention Hearing. Those rights include the right to be represented by counsel, the right to have that attorney cross-examine any witnesses, the right to present evidence, the right to call defense witnesses, and the right to challenge if probable cause exists. Hire a law firm that can challenge the evidence and hold the State to their burden of proof.

           What can we do for you or your family? The attorneys at Roberts & Teeter, LLC know how to evaluate the risk assessment scores, review police reports and the complaint, review and understand the client’s past criminal history, and convey personal information to persuade a judge to release our client. We also know how to evaluate the strength of a case, consider all the possible outcomes, and know the ins and outs of New Jersey’s pretrial program and what supervision services it offers. Hiring the right attorney can be the difference between being detained or being released; the difference between being forced to pay a monetary bail or not; the difference between being released on a bracelet or being released without one.


            If you or a family member have been arrested for a crime in the state of New Jersey, call the attorneys at Roberts & Teeter, LLC today! Our consultations are always free and we take time to sit down and explain things in depth so that our clients and their families feel comfortable.  Call us today at 732-325-0814. 

Monday, November 3, 2014

In Addressing the Heroin and Opiate Problem in New Jersey, the Attorney General has Missed a Valuable Opportunity



In Addressing the Heroin and Opiate Problem in New Jersey, the Attorney General has Missed a Valuable Opportunity

On October 28, 2014, Acting Attorney General John J. Hoffman released Directive 2014-2 entitled “Concerning Heroin and Opiate Investigations/Prosecutions.”  The Directive is available at http://www.nj.gov/oag/dcj/agguide/directives/ag-directive-2014-2.pdf

According to the introduction, the State is responding to the heroin epidemic by ensuring the various counties throughout the State are following a uniformed approach regarding the enforcement of criminal law and administration of criminal justice.  What follows is a cacophony of creative criminal law policy initiatives purportedly designed to address the problem.  According to this author, while some steps have been made to reduce the number of people in the criminal justice system as a result of drug use, the overall effect of Directive 2014-2 will result in more prosecutions and longer sentences, thereby raising the costs already endured by the drug epidemic in New Jersey.

In the Directive, the Office of the Attorney General describes the uniformed policy to be implemented regarding six different stages of a drug case. Part 1 encourages overdose prevention by requiring officers to investigate whether the medical aid exception applies to persons who have called for medical aid following a possible drug overdose.  This mandate is the result of legislation passed in 2013 that prohibits the prosecution of a charge of possession to those people who contact emergency services to request aid for a possible drug overdose.  Its purpose is to encourage people who need medical assistance due to a possible drug overdose to call the police without fear of arrest. Through Directive 2014-2, Statewide training for police will take place within 120 days, responding officers are directed to investigate the possibility of the immunity prior to arrest, and to report the circumstances to the local prosecutor to make a determination if the immunity applies. This is certainly a step that may lead to a small decrease in arrests for drug possession and possibly save lives.

Part 2 encourages police officer training for Narcan deployment. This is a nasally-injected opioid antidote designed to save the life of a heroin or prescription opioid overdose.  This policy is great in theory, but one questions whether law enforcement officers are the best persons available to be making determinations as to whether a person is suffering an opiate overdose and then go the step further by administering a prescription strength drug into the system of a person who is unlikely to be able to consent to the treatment.  When administering prescription strength drugs many medically important factors need to be taken into consideration including the victims past medical history, weight, tolerance, allergies, etc. Rather than training officers to administer Narcan, this author suggests that EMTs would be a more appropriate choice.  They often respond to the scene as quickly as police, and they are better trained in the diagnosis of medical conditions and the administration of strong narcotics.

Part 3 requests “prompt and thorough investigation of possible prosecutions for strict liability drug-induced death”.  New Jersey’s strict liability statute 2C:35-9 makes it a 1st degree crime to distribute drugs that result in a persons death. In 1987, the State created a strict liability statute carrying a sentencing range between 10 – 20 years for drug induced deaths from the distribution of any schedule I or II drug which includes marijuana. Here, the Directive serves to encourage more prosecutions under this statute.  As the Directive explains, recognizing that “historically, the drug-induced death statute has been used sparingly,” this Directive encourages the State to “fully, fairly, and expeditious investigate and prosecute” under this statute with a “view toward deterring drug dealers from distributing or dispensing those types of controlled dangerous substances.”  However, there is no research demonstrating that strict penalties for drug distribution in fact serve as a deterrence. It is unlikely that drug distributors engage in the cost benefit analysis required for deterrence to be successful; moreover, even if they did, the sale of drugs is so profitable in this country that the penalties if convicted, even the harsh ones under 2C:35-9, are likely viewed as the cost of doing business.

Part 4 seeks “enhanced and coordinated investigation/prosecution of corrupt healthcare professionals and pill mills.” The concept is that doctors and pharmacies are writing pain management prescriptions too often and contributing to the supply of opiates on the street.  To combat this perceived problem, the Attorney General has created a Prescription Fraud Investigation Strike Team whose job it is to investigate and prosecute healthcare officials.  While the street level drug dealer is likely unswayed by harsh penalties designed for deterrent purposes, medical professionals are not.  A very real consequence of this Directive is that Doctors will be deterred from prescribing necessary and appropriate opiate pain management medication for fear they will be on the receiving end of a Strike Team investigation.

Part 5 outlines “enhanced prosecution of drug traffickers who sell ultradangerous opiate mixtures or heroin along with other opiates.”  Here, to combat dangerous drug cocktails, the Directive seeks to strength the Brimage Guidelines.  The Brimage Guidelines, have frequently been criticized as being overly harsh and reducing discretion with prosecutors and the courts. This measure seeks to further limit that discretion, impose stiffer penalties with long periods of parole ineligibility, and raise the bail of those persons who are charged with Brimage offenses.

Finally, Part 6 recognizes the futility of incarceration in the War Against Drugs and encourages rehabilitation through Court Ordered Special Drug Court Probation. This is a small concession to the enhanced penalties and greater prosecutions demanded under this Directive, particularly since Drug Court Probation has existed in some form since 1996. This Directive offers little to expand the Drug Court program, and in fact, under subsection d, directs prosecutors to identify and screen-out those individuals they believe are malingers and to prosecute them through traditional means.

In whole, Directive 2014-2 is a well-intentioned effort at addressing the drug problems in the State but will likely result in more incarcerations for drug crimes with longer sentences. Through the Directive police officers will be trained and directed to administer strong prescription drugs to possibly non consenting victims who require emergent medical care. Prosecutors will be required to charge the strict liability death by drugs statute and seek enhanced Brimage sentences for distributors of what they consider dangerous opiate cocktails. Doctors will be deterred from prescribing necessary and appropriate opiate pain management medication.

As a result of this new policy from the Attorney General, I predict no decrease in usage or drug related deaths. However, I do expect to see increased arrests and harsher punishments, costing the tax payers even more.  Yet again New Jersey is combating the State’s drug problem with arrest and incarceration and giving lip service to education and rehabilitation.  If a fraction of the resources we spend on arrest, prosecution, and incarceration were spent on education and rehabilitation, the drug demand would be substantially reduced and New Jersey would see savings economically, socially, and through the quality of people's lives which is what matters most.

By,
Michael B. Roberts, Esq.

www.centralnjlawyers.com
732-325-0814

Monday, November 11, 2013

Innocent Until Proven Guilty: A Fairytale of American Criminal Justice


Innocent Until Proven Guilty: A Fairytale of American Criminal Justice
 
            We have all heard that those accused of a crime in this country are innocent until proven guilty.  While this is appealing rhetoric it is neither conceptually accurate nor practically applied.  

Conceptually, it must be stressed that there is a legal difference between innocence and being found not guilty as determined by a jury of our peers. Innocence is an empirical fact considering whether certain events did or did not occur. Did Defendant intentionally kill another person? Did Defendant take another’s property with force or threat of force with the intent to permanently deprive that person of the property?  These questions deal with events in the universe that either did or did not occur. 

Contrast guilt.  Guilty and not guilty is a verdict rendered by juries in the United States.  Juries do not find defendants innocent. Instead, they make a determination as to whether or not the prosecutor has proven each and every element of each offense beyond a reasonable doubt. This turns on a myriad of factors, some of which have very little to do with whether the Defendant actually did it.  These include the amount of evidence available, the amount of evidence put forward, the fairness of the judge, the credibility of the witnesses, the talents of the prosecutor in trying his or her case, the talents of the defending counsel to raise reasonable doubt, the appearance of the defendant, and any prejudices of the jury.

While the State has the burden to prove guilt beyond a reasonable doubt, in practice, defendants are rarely afforded a presumption of innocence.  For example, once a defendant is arrested, they are processed, incarcerated and brought before a judge who will set a bail.  If the accusation is serious enough, the defendant’s bail may be set so high that the defendant can never afford to post it.  Even though the defendant is said to be presumed innocent he will be confined in a county jail until his trial.  In many instances that could take years.  Finally, once the defendant does have his day in court, even if he prevails, he will not be said to be innocent but only not guilty.  To the truly innocent defendant this is not sufficient because the public believes that plenty of people who in fact did the crime are found not guilty.  The innocent defendant found not guilty, never gets compensated for the wrongful arrest or the time spent in jail.  He or she never truly clears their name nor redeems their reputation.  This is because we have developed a system not interested in guilt and innocence, but instead a system determined to find guilt and not guilt.  For the truly innocent defendant this distinction makes a world of difference.

November 5, 2014 update: Yesterday the citizens of New Jersey overwhelmingly passed a bail initiative to amend the New Jersey Constitution to allow defendants accused of serious violent crimes to be held WITHOUT bail until trial.  These are people who have been accused not convicted.  This amendment is even stronger evidence of the fairytale that criminal defendants are innocent until proven guilty.