Category Archives: Search and Seizure

Using a Confidential Informant to Arrest a Suspect

Castro-4

I’m not the Guy you Want.

Many of the drug cases that I handle involve the Police using a confidential informant (or CI) as part of the investigation. A confidential informant is typically an individual who has been arrested for a separate crime and in exchange for favorable treatment, agrees to give information, participate in the investigation, and in many instances, be the key player in the crime that leads to your arrest.

A typical fact pattern is as follows:

Johnny gets caught with an ounce of pot. The police say to him “We will help you out if you help us out. Who do you know that sells drugs.” Johnny tells them and then agrees to go and buy drugs from that person. He does so on several occasions. This is called a controlled buy. After several controlled buys, the police make an application for a warrant to search the suspect’s home. They get that warrant based on the information that the CI provides and the successful controlled buys.

The home is searched and drugs are found. The suspect is charged with drug distribution.

The identity of the confidential informant is rarely revealed. In fact, the law is very protective of the identity of a CI and only requires that this identity by exposed under certain circumstances. And even then, the law states that the CI’s testimony if ordered can only be required at trial under most circumstances.

There are exceptions, as stated, to the general rule that the identity remains secret. For example, in my example above, if we change the facts slightly to say that the suspect was arrested because we arranged for the CI to buy a gun from him, and we arrested him on the spot. This means that the CI was directly involved in the crime that led to the arrest. This is different than being involved in the development of probable cause for arrest.

Another exception is when the identity of the CI is revealed by the state. This doesn’t mean that you know who he is. This means that the State screwed up an inadvertently revealed it. For example, if the name appeared in a police report. Just because you may know who it is, does not mean that the State disclosed it.

There are other exceptions as well. I have filed many motions to disclose the identity of a CI. Not all have been successful, but in the cases where it has been, it frequently results in a dismissal or significant downgrade. The State does not like to reveal them, especially if they are good at what they do.

If you have been arrested and suspect that a CI was used by the Police during the investigation, it would benefit you you get as much information as you can about it. If the chips fall the right way, it could result in the dismissal of your case or other very good outcomes.

 

Consent Searches Of Automobile are Legal in New Jersey, But Not Always

In New Jersey, consent searches are a common. Police use consent as a way to bypass the warrant requirement. This is especially the case with automobile searches. When the police pull a car over, and they suspect that drugs, weapons, or other contraband is inside, they may not always have probable cause to search. Or, they may be unsure if there is probable cause. Under normal circumstances, the police would have to show that an exception to the warrant requirement, like plain view, to search without a warrant. However, the police do not need probable cause to request consent to search. They can threaten you and tell you that they will apply for a warrant or get the dogs to sniff. This is legal. But you do not have to consent. They need reasonable articulable suspicion that something Police Car Searchcriminal lie within. See State v Carty

If you do consent, the State must show that your consent was knowing, voluntary, and not coerced. This will be a totality of the circumstances consideration for the judge hearing the case. The way you challenge a consent search is through a motion to suppress evidence. In this instance, the state would have to show that the consent was valid, and the defendant would argue that it was not.

Involuntariness is the issue almost always. All the facts that surrounded the incident will be heard by the judge as elicited from witnesses by both your defense attorney and the prosecutor. Although the police are allowed to engage in intimidating tactics, the use of those tactics will be considered as a factor in determining voluntariness. Other factors the court may consider are (just a few) was the defendant in custody (in cuffs, in the police car, in the station)? Was he advised of his right to refuse consent? Did the police make false claims regarding their probable cause to search? Did the police use overly intimidating or coercive tactics?

Bottom line is you will need a skilled criminal defense lawyer who has handled these types of situations before if you plan on challenging the consent search. I have a lot of experience in this area and actually understand the confusing body of case-law that has developed around this topic. For more information, reach out to me and I will provide a free consultation.

When do Police Have to Read Miranda Rights

A common misconception is that police have to read you the Miranda warning before they arrest you or ask you any questions. This is only partially true.

First, Miranda warnings are not a right. You have a constitutional right against self incrimination (5th Amendment). Miranda warnings make you aware of those rights.

Second, Miranda warnings apply to “custodial interrogation”. This means you are in custody and you are being asked questions. This isn’t a straight forward concept. The simple explanation is that custodial interrogation means you are in the police station and the police are interrogating you. However, the concept is not that straight forward. Factually it is sometimes difficult to determine when an encounter turns into a detention…turns into you are not free to leave…turns into they are asking you questions that will sink you later on.

In fact, police are allowed to ask you questions during the course of an initial investigation during which you may incriminate yourself. But it may be a little different if you are handcuffed sitting on a curb and they are asking you those questions.

Police can walk up to anyone on the street and ask them questions. They don’t need a reason and they don’t need to Mirandize them. 

Furthermore, Miranda warnings apply to testimonial statements under normal circumstances.  For example, a sample of your breath or the color of your hair is not testimonial. Your consent to search is also not testimonial.

Additionally, although evidence obtained in violation of your 5th Amendment right to remain silent is inadmissible as fruit of the poisonous tree, the evidence may still be admissible under odd exceptions like the inevitable discovery rule.

A short blog post is a tough place to fully analyze this issue, especially since each case is a fact sensitive determination. If you have questions regarding this issue, please feel free to ask.

Can the Police Search my Car Without a Warrant?

The answer in New Jersey is…it depends. There is a federal constitutional  law automobile exception to the warrant requirement which New Jersey subscribes to. But believe it or not, New Jersey goes a step further and gives the individual more protections than the federal law requires. Under federal law, the police can search your car so long as it is readily mobile and there is probable cause to believe it contains evidence of criminality. It it is the mobility of the vehicle that creates what are called exigent circumstances, and jeopardize the preservation of evidence. Under the federal standard, as long as there is probable cause and  any showing of ready mobility, the exigency requirement will be satisfied.

New Jersey law differs and requires that there must be something more to the exigency than ready mobility to obviate the need for a search warrant. For one, the stop of a motor vehicle can not be pre-planned. It must be unforeseen and spontaneous. In addition to probable cause, the state, if challenged, must prove that the exigent circumstances were such that it was impracticable to obtain a warrant.

The concept of exigency is just that, a concept that is only defined on a case by case basis given the totality of the particular set of circumstance that law enforcement was presented with on that occasion. Some of the things the court has considered include:

  • the location of the stop
  • the time of day
  • the ratio of suspects to officers
  • the existence of a threat that others may remove the evidence
  • safe to leave the car unguarded
  • the unfolding of events leading to probable cause.

These are just a few factor. Yet, it is important to remember that because New Jersey search and seizure laws are a bit more defendant friendly, there are more opportunities for NJ criminal defense lawyers to file motions to suppress evidence. Typically speaking, if a defendant is victorious making his motion, the State will not be able to prove the case and the charges may be dismissed.

In addition, the New Jersey Supreme Court has granted individuals further protection against illegal search and seizures by requiring a warrant once the suspect(s) are arrested. This means that if that police have secured the defendant, typically prior to any searches, they may not be allowed to rely on the automobile exception to the warrant requirement. The term arrest is not black and white. Simply being in handcuffs does not necessarily mean under arrest. In most cases the defendant will need to be more thoroughly secured for there to be an arrest for our purposes. Nonetheless, a motion to suppress may succeed if it can be shown that the police searched the vehicle after they had already “arrested” the defendant. This is because New Jersey laws are more stringent as applied to the search incident to arrest exception to the warrant requirement.

Depending on the facts of your case, it may be possible to make a motion to suppress based upon the foregoing. If you feel that your vehicle was searched illegally, you should contact a New Jersey search and seizure lawyer to discuss your case.