Last month, a routine call to investigate a suspicious vehicle ended up resulting in seizure of approximately $250,000 of marijuana in Freehold.  A township police officer was responding to a call from a neighbor regarding a suspicious vehicle and when he pulled up to a U-Haul in the driveway,  he saw a large stash of marijuana plants apparently being moved.  On further investigation, many more plants and a marijuana production facility was discovered in the house. 

I am not naive enough to believe that small marijuana production facilities exist throughout New Jersey and Monmouth County.  However, this bust seemed to be a little more than one would anticipate.  There may be, however, an interesting issue concerning the arrest insofar as it sounds like the officer entered the house without a warrant.  A substantial portion of the weight of marijuana was comprised of the plants inside the house and they may well be excluded from the case because of a bad search.  The defense attorneys on the case will have to see how the facts unfold.

Our defense firm handles a substantial amount of marijuana charges in Monmouth County every year.  We find the prosecutors to be tough but fair.  While charges of manufacturing or distributing marijuana, or maintaining a marijuana production facility, are very serious, choosing an attorney experienced in handling marijuana charges in Monmouth County may make a big difference in the outcome of this case. 

The problematic allegation of odor of marijuana has, once again, been endorsed by our Courts as a valid basis for a warrantless automobile search.  In State v. Pena-Flores, the Supreme Court of New Jersey held that a valid traffic stop can properly mushroom into a full search where there is an odor of marijuana in the vehicle compartment.

Pena-Flores was stopped by Cranford police for a motor vehicle infraction.  As the officer approached the vehicle, he was unable to see into the car because of tinted windows.  Nonetheless, there was allegedly a strong odor of marijuana when he asked the driver for credentials.  The driver and his passenger were thereafter removed from the car and an ensuing search revealed drugs and a gun. The Supreme Court found the search by the Cranford police officer valid based on the fact that there was probable cause to believe that the vehicle contained marijuana by virtue of the smell of pot.

The imfamous “odor” or “smell” of weed rationale is obviously alive and futile.  I do not know why, however, the Court does not just pronounce a policy to be followed whenever there is a smell of weed from a car.  Why not simply arrest the occupants for consumption and get a warrant?  The reason for this is quite simple, that would subject police to scrutiny whenever they use smell of marijuana as their basis to search a vehicle. There surely has to be some common ground to establish a balance here and good lawyering will continue to be the only way for achieving this goal until such time as the Court takes a different view of this issue.

The New Jersey Supreme Court just released its decision in State v. Spell.  The case involved application of the Refusal Instruction to be provided to individuals suspected of dwi in NJ.  The most important part of the decision was the Court’s holding that:

“The additional paragraph of the standard statement to which the Appellate Division referred is, according to itsinstructions, to be read aloud by police officers only if, after all other required warnings have been provided, a person detained for driving while intoxicated either conditionally consents or ambiguously declines to provide a breath sample. “

The crux of the decision is that the second paragraph of the form need not be read if the person accused of dwi unequivocally REFUSES.  The decision is problematic in my view inasmuch as video and/or audio recordings of the instruction are typically unavailable.  We will have to see how things play out in actual application.

It is big news – Plaxico Burress shot himself with gun. The incident occurred late night when he was at a crowded bar in New York City.  Beyond the obvious issues, Burress has put himself in an awful legal situation.  While he may have a carry permit in Florida, that is going to do very little for him in NY or New Jersey.  He has been charged with criminal possession of a handgun and is looking at a minimum of three years in jail if convicted of this offense.

I cannot tell you how often I get calls from individuals visiting or driving through New Jersey who get themselves into legal trouble because they have a loaded handgun. The typical scenario is that they were stopped for a relatively routine traffic stop only to be arrested when they freely admit that there is a handgun in the vehicle.  Whether it is a truck driver with a permit for Texas or a single women with a permit to carry from North Carolina, they have no right to possess a loaded handgun once they cross the border into New Jersey.  The most frustrating thing about this consultation is the fact that the caller usually thinks I am full of you no what when I tell them what they are facing. 

I certainly understand that other states allow individuals to possess loaded handguns, but the reality is that very few individuals can satisfy the requirements to buy a handgun let alone “carry” a handgun in NJ or NY.  These rules apply to visitors to the states yet this issue continues to crop up. The real alarming thing about the situation of Plaxico Burress alike those I typically keep out of jail is the fact that he was entirely aware of the fact that he was violating the law in possessing the handgun.  Disregard of the rules seems to be a recurring problem with Mr. Burress but this time it may hit him hard. I am sure some interesting legal arguments shall be raised in the case based on the existence of the Florida permit.

Traffic stops are obviously routine throughout New Jersey.  So too are allegations of “smell” or “odor” of burnt marijuana by police officers. Indeed, this unquestionably has to be the most frequent rationale for an ensuing search in our experience.  Some times what starts as a goose chase turns into nothing but in other instances, like what happened in Freehold this past week, the expedition results in major fruit.  The stop and search in Freehold this week yielded what appears to be in excess of at least one pound of marijuana.

Probable cause for a search is always a primary issue that our lawyers focus on whenever a automobile search is involved.  The classic allegation of burnt marijuana can pose obstacles but it is not impossible to overcome.  It takes careful preparation and legal research, and focused cross-examination to win these types of suppression motions.  I know that the defense attorneys at our firm get particular satisfaction from success in these cases. 

Yes, it is true.  The New Jersey Department of Corrections has brought in cellular telephone sniffing dogs to patrol the state’s prisons.  Evidently, prisoners have been smuggling cell phones into jails and using them to conduct, in some cases, their illegal business.

Defense lawyers are accustom to hearing “we are going to bring the dogs…” approach taken by police officers. Indeed, it seems like this threat is a component in half of the automobile search cases our law firm handles.  While a stopped motorist need not give these threats any coercive effect, the situation is almost a moot point for a prisoner.  There will not be a threat but simply the appearance of the dog.