Apr 1, 2020 | By Anthony J. Vecchio | Read Time: 4 minutesExperience Getting Evidence Thrown Out in Court I have been defending clients accused of committing criminal offenses for over a decade. Many of these involved drug possession and gun charges. These can be characterized as possessory offenses. They almost always occur following some kind of search. This could be the police searching your car, home, or person. The issue of “possession” is a subject of its own. But before the state can prove the illegal item was yours, they have to get it into evidence. You can challenge whether police searched you illegally That is where an experienced defense attorney usually does much of the heavy lifting in such a case. Indeed, the entire case usually rises or falls on this very issue. There are special rules involved in make such challenges. Those rules are governed by court rule, statute, and case law. Motions to Suppress Evidence What can you do if police searched you illegally? The first steps in a case like this are to usually handle any procedural preliminary issues. This includes entering not-guilty pleas and filing any appropriate notices. Contact will also be made with the prosecuting attorney’s office. This is done in order to obtain all case discovery and open a dialogue about the case. You can challenge the evidence in a case involving a police search of your home, car, or person. This is done by first filing a motion to suppress evidence. The motion is a legal document that your attorney prepares. Its purpose is to put the state on notice as to what exactly you are challenging. It is critical to file such a motion well before any trial. It is too late to arguing these issues at trial. You would be surprised to see how often this unfortunately happens though. After the Motion is Filed Along with the motion, a proposed court order should usually be submitted. If the case is in Superior Court, a certification is also required pursuant to rule. Depending on the legal or factual issues, a brief may also be filed. A brief is basically your legal argument laid out on paper. After the state responds, a hearing date will be set. The hearing not conducted in front of jury. Rather, a judge presides over the hearing as the finder of fact and law. At the hearing, the judge will hear any proposed testimony. The judge can also view exhibits. The defense attorney and prosecutor each present their witnesses and cross-examine the other’s. Legal Standards The rules of evidence are relaxed during a suppression hearing. This means typical objections such as hearsay will usually be overruled. This comes up a lot when a police officer is asked to testify about what someone else told them. For example, in a case where the officer was dispatched to a house, what was told to the officer by the dispatcher. Or, what was told to the dispatcher from an eyewitness or victim. The burden of proof in a suppression hearing depends on whether a warrant exists. Defendants have the burden of proof if the search was conducted without a warrant. The burden is on the state if the search was conducted without a warrant. In Superior Court, the defense’s adversary will be the Assistant Prosecutor handling the case. In Municipal Court, the defendant’s adversary will be the Municipal Prosecutor. Who Opposes the Motion? Assistant Prosecutors work full-time for the County Prosecutor. The County Prosecutor is appointed directly by the Governor. Municipal Court Prosecutors work for the municipality. They are appointed directly by the town committee or mayor. This depends on how the town is politically organized and structured. It should be noted that the County Prosecutor’s Office must be noticed on all suppression motions filed in the state. This is required even if the case is being heard in Municipal Court. The Warrant Requirement And Probable Cause The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution govern this issue. The both say: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Generally, a search must therefore be conducted with either a warrant or with probable cause. In some cases, additional requirements are required before police can conduct a search. Probable cause exists when an officer has a well-founded suspicion of guilt. This may constitute something less than proof needed to convict and something more than a vague suspicion. State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1998)(citing State v. Davis, 50 N.J.16, 23 (1967), cert.denied. 389 U.S.1054 (1968). Probable cause is not a rigid concept. It is a “flexible, nontechnical concept.” State v. Novembrino, 105 N.J.95, 120 (1987)(citation omitted). What Makes a Search Illegal? This depends on a variety of factors beyond the scope of this article. Different standards apply to different types of searches. For example, searches of cars are subject to different rules than home searches. Searches of individual’s persons also depend on a variety of factors. Was the person already under arrest? Were they a passenger in a car? Were they simply walking down the street while “looking suspicious?” The law regarding each type of these situations is different and needs to be thoroughly understood by a defense attorney. Courts determines the existence of probable cause by applying a common-sense, practical standard. Courts look to the facts of the case. The chief inquiry is whether a reasonable person would believe that an offense was being committed. What Happens After the Motion Hearing? If the judge agrees with the state, the case proceeds like before. The state may now use the evidence that was taken after the search. If the judge agrees with the defense that police searched you illegally, that can be a game changer. In some many cases, without that evidence the state will not be able to prove the case. Proof in a criminal case must be beyond a reasonable doubt. The state has two choices if they cannot proceed against you without the evidence....
Read More Apr 1, 2020 | By Anthony J. Vecchio | Read Time: 4 minutesFormer Prosecutor on Your Side. NJ Police can search your home without a warrant under very limited circumstances. As a defense attorney in New Jersey I have defended clients against warrantless police searches of their homes. In some cases police entered these client’s homes without consent or a warrant. It is often assumed that such a action is simply illegal. The result should be that all evidence obtained after that search should be thrown out. The answer to this question is not so simple. The law on this issue is somewhat complicated. However, there is general presumption against such action. Many of these cases are successfully defended because of that. An experienced attorney may successfully obtain the suppression of evidence in your case under certain circumstances. Why Do Police Enter and Search Homes Without a Warrant. Why would an officer enter a person’s home without a warrant? This occurs for a variety of reasons. Police officers in New Jersey are sometimes but in very difficult decisions. Should an officer chase a fleeing murder suspect into a house without a warrant? If the officer does so, there is a chance any evidence seized after the arrest may be thrown out. This could potentially result in the entire case being dismissed. Or should the officer play it safe, sit back and apply for a warrant? If the officer does not have enough backup to surround the home, the suspect could go free. This could endanger the public. Conundrums such as this are why the law on this subject is not so straightforward. Typical charges that result from such cases commonly include gun and drug possession. If you were charged with any crime in NJ after police entered your home, call my office for help. Exigent Circumstances As a starting principle, the police should have a warrant before they conduct any search. The State bears the burden of proof when a search is conducted without a warrant. The can only meet that burden by showing that warrantless arrest or search falls within an exception to the warrant requirement. On such exception is what is called exigent circumstances. This basically means that in some emergency type cases, police do not have to obtain a warrant before conducting a search. This is a requirement in a warrantless entry and search of a home. This applies in both federal and state court. A wide variety of circumstances may give rise to such exigency. A court should look to the totality of the circumstances when determining whether such a search should be upheld. Federal Case Example In Johnson v. United States, an informant told police someone was smoking opium in a hotel room.Police responded and investigated. Upon arrival, they smelled “a strong odor of burning opium” coming from the room. They knocked and announced themselves as police. They then heard some “shuffling or noise.” The defendant opened the door. The police entered without a warrant and arrested the defendant. They searched the room and found suspected heroin. They also found drug paraphernalia. The Supreme Court declared the police entry and search violated the Fourth Amendment. Id. at 13-15. The Court noted that “[n]o suspect was fleeing or likely to take flight The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear.” Id. at 15. NJ State Law Example In State v. Holland, the Court stated that the smell of burning marijuana establishes probable cause. However, the court also stated that that smell did not establish exigent circumstances. Therefore it was improper for police to make a warrantless entry and. In that case, the established nothing more than probable cause that a disorderly persons offense is being committed. The warrantless home searches by police in this case resulted in the suppression of all evidence found. Burden is on the Prosecution A warrantless entry or search of a residence is presumptively unreasonable. They are therefore constitutionally prohibited. This is unless the police can show “exigent circumstances in conjunction with probable cause.” They must also establish the reasonableness of the police conduct. The warrantless search of a person’s homemust be subjected to particularly careful scrutiny. This applies under both NJ and federal constitutional standards. The reason for this is because physical entry of a home has long been considered the most serious of intrusions. Warrantless searches or arrests in the home must be subjected to particularly careful scrutiny. Only in extraordinary circumstances may a warrantless home arrest or search be justified. State v. Bolte, 115 N.J. 579 (N.J. 1989). The state bears the burden of proof in such a search. All your attorney has to do is properly file a motion to suppress evidence in order to trigger that burden. Hot Pursuit One such form of exigency relates to “hot pursuit.” This is commonly misunderstood area of law. There is a misconception that such a search is always valid. This is inaccurate. Police in hot pursuit regarding a minor offense may not barge into a home if there is only probable cause. However, that can change if the threat to public safety is substantial. The “hot pursuit” of a defendant who poses a threat to public safety may establish exigency. A limitation to this exception applies when police have an arrest warrant. When a suspect flees from an arrest warrant, police may pursue them in most cases. The Community Caretaking Exception to the Warrant Requirement. There is also an “exception to the exception” of exigency. Police officers have a community-caretaking function. This is in addition to their law enforcement roles. Police can enter a home without a warrant under the emergency-aid exception. Under the emergency-aid doctrine, The officer must have ‘an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or to prevent serious injury.’ There must also be a “‘reasonable nexus between the emergency and the area or places to be searched.'” Conclusion As can be seen, this is a complex area of law. I have experience successfully fighting warrantless home searches by police. If the police searched your home without...
Read More Mar 28, 2020 | By Anthony J. Vecchio | Read Time: 4 minutesCan I Sue? Were you innocently walking across the street when–wham!–you were hit by a car? Such a startling collision can result in severe injuries. If you were hit by a car in New Jersey, you may wonder if you can sue. In many cases, the answer is: Yes! You can sue a negligent driver for causing your pedestrian-car accident injuries. As an personal injury attorney in NJ, I’ve prosecuted and defended thousands of cases. Here, I’ll show you what criteria you must meet to sue a negligent driver in New Jersey. Keep reading for answers to the following pedestrian accident questions: What kinds of pedestrian-car accident injuries take place? Who can I sue for hitting me with a car? What kind of pedestrian-hit-by-a-car compensation can I receive? What Kinds of Pedestrian-Car Accident Injuries Take Place? Since Henry Ford began producing automobiles in the early 1900s, America has been the land of the automobile. In fact, the United States was the first nation in the world that encouraged cities to implement large-scale adaptation to cars. Unfortunately, this innovation comes at the cost of pedestrian safety. While many European cities have pedestrian-friendly zones, American pedestrians encounter danger by simply crossing the street. Because automotive drivers speed and pay little attention to pedestrians, tragic accidents often occur. Statistics Here are statistics gathered by the CDC that show just how prevalent pedestrian-hit-by-a-car accidents are: Nearly 6,000 pedestrians hit by a car were killed in the US in 2016; Almost 129,000 pedestrians sustained non-fatal car-accident injuries that required an emergency room visit in 2015; Pedestrians are 1.5 times more likely than car occupants to be fatally injured in a vehicle accident; Pedestrians age 65 and older are most at risk, accounting for 20% of all pedestrian deaths in 2016; and Pedestrians comprise 20% of child car accident fatalities. In addition to the thousands of pedestrians killed by cars each year, many more are seriously injured. Pedestrians hit by a car in NJ can sustain life-threating or life-altering injuries that require months or years of expensive medical treatment. Here are some common pedestrian-car accident injuries. Soft Tissue Injuries Soft tissue injuries include bruises and cuts, as well as tears to tendons and ligaments. Soft tissue injuries can leave a pedestrian hit by a car disfigured or require expensive plastic surgery. If muscle damage is not properly treated, such injury could leave the victim without full mobility. Traumatic Brain Injuries Traumatic brain injuries occur from the force of the car striking the pedestrian or from the pedestrian’s collision with the ground. While many concussions heal within a relatively short time, other brain injuries linger for life. Traumatic brain injuries can impact a victim’s ability to work or function independently. Spinal Cord Injuries When a car accident injures the victim’s spinal cord, it can lead to a devastating loss of mobility. A spinal cord injury that causes nerve damage may put the victim in severe pain. Such terrible injuries may leave the victim without the ability to work or live without assistance. Broken Bones The traumatic impact of a car accident can crush bones or send the victim airborne before their bones break upon landing. In either instance, the unexpected collision leaves the victim in a great deal of pain. It also impacts the victim’s mobility and may limit job performance. Serious breaks may require surgery. Emotional Damage The unexpected car accident and long recovery process following can impact the victim emotionally. The victim may become fearful of walking outside, experience anxiety when driving, or fall into depression. Emotional damage from physical injuries is eligible for pedestrian-hit-by-a-car compensation. Death Sadly, the trauma for many pedestrians hit by a car in NJ is too severe for a person to survive. Too many pedestrians are killed by negligent drivers each year. If someone you love has been killed in a car accident, you can file a wrongful death lawsuit. Who Can I Sue for Hitting Me with a Car? You can sue a negligent driver for hitting you with a car. This means you must prove a driver’s negligence meets four elements. Duty of Care The driver had a duty to drive safely and obey the laws of the road. Drivers must obey laws designed to protect passengers, such as stopping for a crosswalk. Breach of Duty The driver breached the duty of care. For instance, if a driver speeds through a crosswalk and hits a person crossing the street, the driver breached the duty to drive safely. Breach Caused Injury The driver’s breach of duty caused the pedestrian’s injury. If the pedestrian already had a broken leg before the accident, then the pedestrian can’t sue the driver for the broken leg unless the accident inflicted further damage. Damages Occurred The pedestrian hit by a car in NJ must suffer an injury that can be reimbursed by the negligent driver. For instance, if the pedestrian hit by a car suffered only a scratch that quickly healed, that wouldn’t be enough damage for a lawsuit. The harm suffered must be worth bringing to court. Even if a pedestrian was partially responsible for the accident, the pedestrian hit by a car may be able to sue. New Jersey law allows a plaintiff to recover damages if the defendant was 50% or more responsible for the accident. You can receive damages for the defendant’s portion of responsibility. For instance, if you suffered $10,000 worth of harm, and the defendant was 70% responsible for the accident, you could receive up to $7,000. What Kind of Pedestrian-Hit-By-a-Car Compensation Can I Receive? Pedestrians hit by a car in NJ are eligible for three types of damage awards. Economic Damages These damages include financial costs such as medical bills, property damage, and lost wages. All medical expenses, from over-the-counter medications to ER visits and rehabilitation stays, may be reimbursed as economic damages. Property damage might include destruction to something you were carrying or wearing in the accident. Non-Economic Damages Non-economic damages include your emotional suffering that...
Read More 
