Posted On: March 10, 2009

New Jersey Supreme Court Will No-Longer Require Exigent Circumstances for Police to Obtain a Telephonic Search Warrant, Defining Exigent Circumstances in the Process

The New Jersey Supreme Court by a 4-3 majority extinguished the requirement of exigent circumstances for police officers to obtain a search warrant via telephone or other electronic means. These telephonic warrants will now be viewed under the same light as warrants obtained in-person, with their validity no longer being predicated on a finding of exigency for the search. The Court felt that the use of electronic or telephonic means to obtain a search warrant would increase efficiency of law enforcement while remaining just and fair to the suspect; the threshold of probable cause would still have to be met.

In coming to this conclusion in the decision of State v. Pena-Flores, the New Jersey Supreme Court also laid-out guidelines for Police officers to determine when exigent circumstances exist, in order to conduct a warrantless search. In Pena-Flores, Police officers stopped a vehicle late at night for a traffic violation. Upon approach of the vehicle, the officers detected the smell of raw marijuana. The officers ordered the passengers out of the vehicle. They were searched, but no contraband was found. The vehicle, however, had tinted windows making it difficult for the officers to see inside. The officers, based on the facts that the stop was late at night and they were the only two officers available, concluded they had sufficient probable cause and exigent circumstances to search the vehicle; the officers then found two bags of marijuana on the passenger-side floor. The vehicle’s occupants were then placed under arrest and the police continued their search of the vehicle, which produced a handgun and several other bags of marijuana.

The trial court determined that due to the circumstances of the stop, the officers had probable cause to search the vehicle, however, once the initial bags of marijuana were found, the search should have ceased. Once the occupants were placed under arrest, the court determined that exigent circumstances no longer existed and that the officers should have either obtained a telephonic search warrant or impounded the car. Therefore, the evidence obtained following the suspects’ arrests was suppressed. This ruling was affirmed upon appeal.

The Supreme Court held that the exigent circumstances in the Pena-Flores case were enough to justify a complete search of the vehicle, despite the fact that the suspects were in custody, because the officers could not see into the vehicle and therefore their safety was at issue. More importantly, the Court determined that exigent circumstances should be determined on a case-by-case basis, listing the following guidelines for law enforcement and the prosecution: Time of day, location of the stop, nature of the neighborhood, unfolding of the events which established probable cause, the ratio of officers to suspects, the existence of confederates who know of the car’s location and could remove its contents, whether the arrest was observed by passers who could tamper with the car or evidence, whether it would be safe to leave the car unguarded, and whether the delay of obtaining a search warrant would put the officers at a significant risk. The Court also authorized a warrantless police search of a vehicle for documents where the driver cannot produce the legally correct documents.

Drug Offenses

Drug offenses are a serious matter in Pennsylvania and New Jersey; certain offenses such as trafficking are considered felonies and carry mandatory minimum sentences. The Fourth Amendment of the United States’ Constitution affords individual rights pertaining to police search and seizure. Very often, an Experienced Criminal Defense Attorney will have evidence found inadmissible due to an illegal police search, and will have charges against the defendant dropped or greatly reduced.

If you have been charged with a drug offense, contact the Law Offices of Marc Neff immediately. We are glad to assist you in your defense and help you get your life back.

Posted On: March 2, 2009

Federal Law Prohibiting Those Convicted of Misdemeanor Domestic Violence from Possessing Firearms is Strengthened by Recent Supreme Court Ruling

The United States Supreme Court, last week, reinstated a West Virginia man’s conviction for a violation of Federal Law, which prohibits those convicted of a domestic violence offense from possessing firearms. The Federal Law in question was passed in 1996, and extended the prohibition on firearm possession from convicted felons to those also convicted of misdemeanor domestic violence. The case, United States v. Hayes, involved a West Virginia man who had been convicted of a domestic violence offense in 1994, against his then-wife. Ten years later, after the Federal Law had been passed [18 U.S.C. §922(g)(9)], police responded to a complaint of domestic violence at Hayes’ home. Upon search of the home, police found a rifle amongst Hayes’ possessions. Police were also able to determine that within the ten year time-frame, Hayes had owned at least four other firearms.

Hayes’ 1994 conviction was for misdemeanor battery, rather than a specific offense of domestic violence, even though the victim was undoubtedly his wife at the time. Based on this fact, Hayes argued to a United States District Court that the Federal Ban on possession of firearms should not apply to him. The District Court rejected Hayes’ argument and Hayes entered a conditional plea of guilt, preserving the case for appeal. Upon appeal, the United States Court of Appeals for the Fourth Circuit reversed Hayes’ conviction, citing that the Hayes’ conviction for misdemeanor battery was not specific to constitute domestic violence, despite the fact the battery was against his former wife. The Supreme Court of the United States agreed to hear the case, and, reinstated the conviction against Hayes.

The Supreme Court found the definition of misdemeanor crime of domestic violence, as applies to the Federal Statute, to include two elements: the use or attempted use of physical force or the threatened use of a deadly weapon, and it must be committed by a person with a specified domestic relationship to the victim. The Court held that the statute does not require the prior conviction to specifically apply to an offense of domestic violence, but rather that the Government can prove such a domestic relationship existed in the previous offense, in order to apply the Federal Law in the case at hand. The Court reasoned that requiring a prior offense to be charged specifically as a domestic violence offense would “frustrate Congress’ manifest purpose” in preventing the combination of firearms and the tendency of a person to commit domestic violence.

Domestic Violence is defined as any abusive relationship that results in emotional abuse, physical violence, sexual assault, stalking, assault, and/or threatened violence. Even State Court convictions can have Federal implications. If you have been charged with an offense of domestic violence, or an offense stemming from a prior conviction of such, it is important you contact an experienced and aggressive Criminal Defense Attorney immediately. Such offenses can carry extensive penalties. For a confidential consultation, contact our offices via phone at 215-563-9800, or email at