June 10

Seizure Of Postal Packages

This matter involves the allegations that my client mailed three boxes from California to New Jersey addressed to herself containing 9 pounds of marijuana. This is a warrantless search so we start with the proposition that the seizure is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980); State v. Valencia, 93 N.J. 126, 133 (1983). As such, it is the State’s burden to file a brief to justify the search and to articulate if the case falls within one of the exceptions to the warrant requirement.

The State and the Court was provided a copy of Judge Peim’s opinion in State v. Cotto wherein the Court analyzed seizures by postal authorities and the reasonableness thereof. The facts of Cotto are similar to this case in that postal authorities seized a package, took it out of the flow of being processed, sorted and delivered, and detained it for an unreasonable amount of time, i.e. two and a half hours in Cotto . In this case, the Defense showed that the postal authorities detained the packages in California, removed them from being processed, sorted and delivered, and what started out as a detention became a seizure which lasted for more than three days before postal police and state police attempted to deliver the packages to the Defendant.

It is well settled law that the postal authorities must have a reasonable, articulable suspicion under Terry v. Ohio, 392 U.S. 1 (1968) in order to detain a package. Reasonable suspicion is defined as “a particularized and objective basis for suspecting the person stopped of criminal activity”. Ornelas v. U.S., 517 U.S. 690, 696 (1976)(citations omitted). See also State v. Williams, 192 N.J. 1, 9 (2007) for the New Jersey equivalent analysis. It is also settled law that the “reasonable, articulable suspicion Terry standard” applies to the seizure of personal property such as mail. Mail and packages in the normal flow of being processed, sorted and delivered should be free from inspection by State or postal authorities. See, Ex parte Jackson, 96 U.S. 727, 733 (1878). Warrantless diversions and detentions of mail become an unreasonable seizure within the context of the Fourth Amendment. United States v. Van Leeuwen, 397 U.S. 249, 252 (1970). That being said, postal authorities may temporarily divert a mailed package if they have reasonable suspicion that it relates to or contains criminal activity. Id. at 251-252

In this case, Postal Inspector Wang indicated that he received a “phone call” from an unidentified postal inspector from California regarding three suspicious packages. P.I. Wang stated he was informed the packages were similar in size and weight, from the same sender and to the same recipient. P.I. Wang agreed to receive the packages in his office in Newark for further follow up. All three boxes were delivered in a single sack overnight. Thereafter, P.I. Wang contacted the NJ State Police and advised them of the situation. The packages were then held from March 26 to March 28 before delivery was attempted. All that time, the packages remained outside the flow of postal delivery and what started as a detention quickly became an unreasonable seizure.

It is undisputable that the seizure occurred in California and the packages were taken out of the flow of being processed, sorted and delivered when the unknown postal inspector detained the packages and had them “delivered in a single sack overnight” to P.I. Wang who received the packages in his office in Newark. It is also clear that the “detention” occurred over a period of days and well beyond the scope of reasonableness pursuant to Terry and United States v Place, 462 U.S. 696, 698-99 (1983) where a 90 minute warrantless detention of defendant’s luggage was deemed unreasonable. Indeed, on April 21, 2015 the United States Supreme Court issued an opinion in Rodriguez v. United States wherein the Court held that investigatory detentions must be brief and akin to a Terry stop and a seven to eight minute delay in order to do a dog sniff was unreasonable. The Court found that the detention could not last longer than it took to write the traffic ticket. See also, State v. Henderson, 2014 N.J. Super. Unpub. Lexis 383, 11-12 (App. Div. March 28, 2014)(citing Illinois v. Caballes, 543 U.S. 405, 406 (2005)).

Equally troubling was the unknown postal inspector in California. Reasonable, articulable suspicion must arise prior to the seizure of the package. United States v, Place, 462 U.S. 696, 698-99 (1983) Moreover, the “totality of circumstances” must be taken into account in determining if a detention and resulting seizure was lawful. U.S. v. Cortez, 449 U.S. 411, 417-18 (1981). This includes objective observations, other source information, considerations of patterns of illegal activity, and inferences made from these sources by trained and experienced law enforcement officers. Id. How could the Court make a determination of reasonable, articulable suspicion when the Court must evaluate that on a totality of the circumstances and give weight to the postal inspector’s “knowledge and experience” as well as “rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer’s expertise” State v. Arthur, 149 N.J. 1, 10 (1997). The State could not even identify the postal inspector in California who made these determinations. The State could not rely on P.I. Wang for this analysis since the seizure occurred in California and P.I. Wang did not determine that the packages were “suspicious”.

Moreover, P.I. Wang stated “there are no policies or procedures regarding this type of incident” so the purported packages being the “similar in size and weight, from the same sender to the same recipient” is really of no importance. The Defense argued that there is nothing inherently suspicious with packages of the same size and weight from the same sender to the same recipient so the determination of suspiciousness was nothing more than a hunch. See State v. Elders, 192 N.J. 224, 247 (2007). Unless there was some clairvoyance involved, the packages could have contained anything.

In summary, the State could not establish a reasonable articulable suspicion to seize the packages. The packages were illegally removed from the flow of being processed, sorted and delivered. Finally, the detention of the packages for three days or more is way beyond the scope of Terry and United States v Place, 462 U.S. 696, 698-99 (1983) and transmuted into an unlawful seizure under the Fourth Amendment. Indictment dismissed!

May 25

Private Search Of Home Legal

Evangeline James reported a leak in the kitchen ceiling of her apartment to her landlord. The next day her landlord and a plumber entered the apartment when no one was home to inspect the leak. Because the pipes went to the rear of the apartment, the plumber went into the back bedroom to determine where the leak was coming from. In the bedroom, he saw drugs on the nightstand and in an open drawer. Police were called and the responding officer entered the apartment without a warrant. Police saw the drugs and a small scale. Soon after, Evangeline’s boyfriend arrived and signed a consent to search and police further discovered a loaded handgun, bullets and drug paraphernalia.

Both Evangeline and her boyfriend, Ricky Wright, were indicted on drugs and weapons charges. They moved to supress the evidence because of the lack of a warrant. The trial court relying on the doctrine of third party intervention found that the search did not violate the Fourth Amendment and the Appellate Division in State v. Wright affirmed. The doctrine of third party intervention or private search applies when private actors search and discover contraband, contact law enforcement and give te items to the police or the police replicate the search. It is an exception to the warrant requirement.

The Supreme Court said the residents ran the risk of allowing a private actor into their home who could tell police what he or she saw. Police could then use that information to apply for a warrant. The Court further stated that if the scope of the police search did not exceed that of the private actors, they did not need a warrant. The Court did not apply private search doctrine to a home since both the United States Supreme Court nor the New Jersey Supreme Court had never done so. But the real problem for Defendants in this case was the consent to search. While the initial search may have been illegal having potentially exceeded the private search, the consent search would have revealed the illegal items as part of inevitable discovery doctrine.

What’s the defense attorney lesson and advise from this case? NEVER CONSENT TO A SEARCH OF YOUR HOME OR CAR! NEVER LEAVE DRUGS OUT IN PLAINVIEW WHEN THE LANDLORD AND PLUMBER ARE COMING TO INSPECT A LEAK!

May 25

Step Down Permitted For Refusals

In State v Taylor decided March 11, 2015, the Appellate Division extended the step down provision of the DWI statute to refusal cases. The DWI statute provides that yu can have a step down if there is a 10 year gap between offenses. Lets say you get a DWI in 2000 and another in 2015. Because there is a 10 year gap between the two, you can be sentenced as a first offender and not a second, and as you know, penalities increase with every subsequent offense. So the step down can save you from a two year loss of license and you only have a seven month loss of license, or in the case of a third offense step down, you go from a ten year loss of license to only two. Thus, the step down provision can have a big impact on loss of license. But it was never applied to refusal cases until now. The Court reasoned it was an issue of fundamental fairness. Why should it only apply to DWI cases? After all, the statutes are simularily situated in that they punish related offenses, DWI and the refusal to take a breath test. So the Court, in it’s words, “engrafted” a step down provision to the refusal statute. Another example of an attorney engaged in good lawyering for his client and not relying on the status quo. Lawyers need to push issues for their clients and not just say “Oh well, step down does not apply to refusal, sorry”.

May 18

Forced Representation Unconstitutional

In January 2011, defendant Gregory Martinez and a co-defendant were arrested for possession of narcotics and intent to distribute. The co-defendant pleaded guilty but Martinez maintained he did not know the drugs were in the car and went to trial. On the day of trial, an attorney from the office of Benedict and Altman appeared to request an adjournment because Partner Joseph Benedict was on trial in another court. The Judge said this was one of the oldest cases on her calander and refused the adjournment notwithstanding the fact that the client was vociferous in his desire to be represented by the partner and not an associate. Martinez was found guilty and appealled.

The Appellate Division said that the trial judge failed to properly weigh the defendant’s request for an adjournment in light of his lawyer’s unavilability. The Appellate Division went on to say that the denial of defendant’s request for an adjournment “reflects an arbitrary exaltation of expedience in case processing at the expense of defendant’s right to counsel”. As such, defendant’s Sixth Amendment right to counsel of his choice was violated, the conviction was overturned, and a new trial ordered. Trial courts need to recognize that the right to counsel includes the right to counsel of choice, not just any warm body who appears for an adjournment request.

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