Share/Save

State of New Jersey v. Mark J. Bellotti, Esq., et al.

Share/Save

Holding:

1. The exigent circumstances rule applies when the police do notcreate the exigency by engaging or threatening to engage in conductthat violates the Fourth Amendment. Pp. 5–16.

(a) The Fourth Amendment expressly imposes two requirements:All searches and seizures must be reasonable; and a warrant may notbe issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. Although“ ‘searches and seizures inside a home without a warrant are presumptively unreasonable,’ ” Brigham City v. Stuart, 547 U. S. 398, 403, this presumption may be overcome when “ ‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a]warrantless search is objectively reasonable under the Fourth Amendment,” Mincey v. Arizona, 437 U. S. 385, 394. One such exigency is the need “to prevent the imminent destruction of evidence.” Brigham City, supra, at 403. Pp. 5–6.

(b) Under the “police-created exigency” doctrine, which lower courts have developed as an exception to the exigent circumstancesrule, exigent circumstances do not justify a warrantless search whenthe exigency was “created” or “manufactured” by the conduct of the police. The lower courts have not agreed, however, on the test for determining when police impermissibly create an exigency. Pp. 7–8.

(c) The proper test follows from the principle that permits warrantless searches: warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Thus, a warrantless entry based on exigent circumstances is reasonable whenthe police did not create the exigency by engaging or threatening toengage in conduct violating the Fourth Amendment. A similar approach has been taken in other cases involving warrantless searches. For example, officers may seize evidence in plain view if they havenot violated the Fourth Amendment in arriving at the spot from which the observation of the evidence is made, see Horton v. California, 496 U. S. 128, 136–140; and they may seek consent-based encounters if they are lawfully present in the place where the consensual encounter occurs, see INS v. Delgado, 466 U. S. 210, 217, n. 5. Pp. 8–10.

(d) Some courts, including the Kentucky Supreme Court, have imposed additional requirements—asking whether officers “ ‘deliberately created the exigent circumstances with the bad faith intent toavoid the warrant requirement,’ ” 302 S. W. 3d 649, 656 (case below);reasoning that police may not rely on an exigency if “ ‘it was reasonably foreseeable that [their] investigative tactics . . . would create theexigent circumstances,’ ”ibid.; faulting officers for knocking on a door when they had sufficient evidence to seek a warrant but did not doso; and finding that officers created or manufactured an exigency when their investigation was contrary to standard or good law enforcement practices. Such requirements are unsound and are thus rejected. Pp. 10–14.

(e) Respondent contends that an exigency is impermissibly created when officers engage in conduct that would cause a reasonable person to believe that entry was imminent and inevitable, but thatapproach is also flawed. The ability of officers to respond to an exigency cannot turn on such subtleties as the officers’ tone of voice in

announcing their presence and the forcefulness of their knocks. A forceful knock may be necessary to alert the occupants that someoneis at the door, and unless officers identify themselves loudly enough, occupants may not know who is at their doorstep. Respondent’s test would make it extremely difficult for officers to know how loudly they may announce their presence or how forcefully they may knock without running afoul of the police-created exigency rule. And in most cases, it would be nearly impossible for a court to determine whether that threshold had been passed. Pp. 14–15.

2. Assuming that an exigency existed here, there is no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the apartment. Pp. 16–

(a) Any question about whether an exigency existed here is better addressed by the Kentucky Supreme Court on remand. P. 17.

(b) Assuming an exigency did exist, the officers’ conduct—banging on the door and announcing their presence—was entirelyconsistent with the Fourth Amendment. Respondent has pointed tono evidence supporting his argument that the officers made any sortof “demand” to enter the apartment, much less a demand thatamounts to a threat to violate the Fourth Amendment. If there is contradictory evidence that has not been brought to this Court’s attention, the state court may elect to address that matter on remand.Finally, the record makes clear that the officers’ announcement thatthey were going to enter the apartment was made after the exigency arose. Pp. 17–19.

Share/Save

Lucimar Dixon (right)

Lucimar Dixon is a Brazilian national scam artist that is preying on unsuspecting New Jersey residents.  Ms. Dixon poses as a real estate broker and gains the confidence of buyers.  She makes the buyers believe that attorneys, sellers and other people are part of a legitimate real estate transaction.  She will eventually, convince the victim to giver her cash, even pretending to deposit the money in a “secure” attorney trust account.  Actually, Lucimar Dixon deposits the money in an account that she has access to.  There is no attorney or anyone else.  The deal is a facade. The deal falls through and Ms. Dixon is gone with the money. Finally, the New Jersey Attorney General has find a company under which she operates, “Hope Loan Today.” The State has levied $14,000 in fines and ordered restitution. This is just the tip of the iceberg for Ms. Dixon.  A Google search reveals that Lucimar Dixon has morphed herself into several companies that sound legitimate but are designed to rob you.  Some of the names under which she trades are:

Hope Loan Today;

Dixon International, Ltd.;

Brazil USA Imports; and

Dixons Lines LLC.

Lucimar Dixon uses her home at 7 Jonathan Drive, Robbinsville, New Jersey 08691 as a front for her illegal operations.  She often preys on the trust of her fellow Brazilians.  If you have been the victim of a Lucimar Dixon scam, please contact me immediately.  I will assist you in reporting the matter to the police and filing a civil suit against her.  If you come across Ms. Dixon or know her whereabouts, please report her immediately to me.

Share/Save

The dispatcher’s conduct — advising an officer on the scene that there was an outstanding warrant when the warrant contained a differently spelled name and a different date of birth — was objectively unreasonable and violated the Fourth Amendment to the United States Constitution and Article I, Paragraph 7, of the New Jersey Constitution. Evidence uncovered during the search incident to the arrest must be suppressed.

Now, lawyer’s will be analyzing the audio between the dispatcher and police officer to see if the officer relied on mistaken or incomplete information before arresting the defendant.

Download the Court’s opinion here: 

Share/Save

I think we have to warn young people that pranks that have a mean, biased motive will be punished criminally. We are watching the criminal justice system struggle with new technology and apply old laws. The results are going to be an unexpected application of serious laws. Your specific motive will enhance the consequences. So, if you invade someone’s privacy because you dislike them, it is a 3rd degree offense; but if you invade their privacy because they are gay or a member of any other protected group, it is a 2nd degree offense. What no one is discussing is the fact that Ravi would have been eligible for Pre-Trial Intervention (PTI) but for the 2nd degree charges. PIT is a program that suspends charges of a 1st time offender prior to a trial or guilty plea. If the defendant does not get into any other legal trouble, the charges can be dismissed and even expunged.

Also interesting is the fact that Ravi was charged with evidence tampering for deleting Twitter messages. How many times to we post ill conceived comments? Now the mere deletion of our posts can be a crime. The Middlesex County Prosecutor’s Office treats posts in cyberspace as actual documents. The relate deleting a post to destroying a document. Have they gone too far?

Share/Save

But what happens when the stop occurs in an empty parking lot where there is no reason to be concerned about safety?  Police still have the driver perform field sobriety off camera.  Safety is a red herring.  Police have unwritten protocols that direct them to prevent the recording of exculpatory evidence.  This way their testimony is the only evidence.  Occasionally, a defendant will testify but the Court always finds the police officer credible and the defendant not credible.  Increasingly, our Municipal Court system has become an extension of the prosecution.  Municipal Court judges are appointed by town mayors.  Their goal is not just nor is it to overlook the law.  It is to maintain job security.  A judge that dismisses DWI charges, even because of police misconduct, will no have job security.

Fortunately, our system also provides for 3 levels of appeals.  At each level the judges are further away from the political process that determines their decisions.  Unfortunately, an innocent defendant faced with municipal court charges, must be in for the long haul.  This means time and money.  I have taken appeals pro bono in certain cases where I believed a municipal court judge had made a decision based on my client’s race or the court’s calculated decision that my client was too poor to appeal.  It is impossible for private attorneys to appeal every case pro bono.  We would be out of business before our case reached Superior Court.  So we pick and choose the right case with the right judge to take up on appeal.  Judges hate to be overturned.  Superior Court judges never mind airing a municipal court judge’s sloppy decisions.  It make the municipal court judge look bad.

If you are charged with an offense and need an attorney that will take you matter seriously, please call me so that we can discuss your case.

Share/Save

Jersey Shore

The summer is near and you are getting your shore house ready, sun tan lotion and summer vacation plans in order. What should you know about NJ law? Well, I’ll tell you now and maybe save you some heart ache later.

DWI and the Alcotest (Breathalyzer)
Q: If I am stopped should I tell the officer I had a couple of beers?

A: While our parents have taught us that honesty is the best policy, it usually lands you in jail. If you tell the police officer you had any alcohol, he/she will arrest you and have have you blowing into the Alcotest before you know it. While an attorney cannot tell someone to lie, an attorney can tell you that it is not illegal to say, “I did not have anything to drink tonight. In fact, I was the sober driver.”.

Q. What should I know about the psycho-physical tests before I have to do them?

A. Practice raising one leg 1 foot off the ground. Dead sober it is awkward. I think most people fail because they are not used to doing this type of task. Keep your arms at your sides. Don’t use them for balance. Do this for at least 30 seconds. Practice makes perfect. Ladies, if you plan to wear heals, keep a comfortable pair of sneakers in the car for the test. Yes, you are allowed to change.

Watch YouTube videos on walking the straight line. Most people mess up because they don’t listen to the instructions. You have to take 10 steps, heel to toe and then rotate around and walk 10 more steps heel to toe back. If you spin around at the end of the line, you will fail! Slowly rotate.

Q. Should I test the Alcotest (Breathalyzer)?

A. YES!!!! NJ like most states has an implied consent law. This means that you have consented tom taking the Alcotest by the virtue of driving in NJ. If you do not take the test, you will be charged with Refusal which carries with it a 7 – 12 month loss of license in addition to any time you lose for DWI. Yes, the police can still convict you even if you do not take the Alcotest. It is call an “Observation” case.

Q. Do I need a lawyer or should I just plead guilty?

A. Get a lawyer. Once a man asked me tom represent him for his guilty plea and sentencing only. He was set on pleading guilty. He was charged with going the wrong way on the New Jersey Turnpike and getting into an accident. When he got to court, ready to surrender his license, I told him that no one saw him driving the car. Police failed to get witnesses and he did not give a statement. As a result, the DWI charges were dismissed!

Q. I am from New York, what does it matter if I get convicted of DWI in NJ?

A. NY and NJ, lime most states have an agreement to suspend their home driver’s license if convicted of DWI in another state. So, not only will you lose your right to drive in NJ, you will lose your right to drive in NY once they find out about it.

Q. They police want to search my car, should I cooperate and consent?

A. No, no and no. There are so many requirements before the police can search your car. If you consent, you have given up one of the most important right in the Bill of Rights. Even if they threaten you will the drug sniffing dogs, just say no. Chances are, the will search your car illegally and the evidence will be suppresses. Say no even if you don’t have drugs in the car. The lead US Supreme Court case involved a search where police found checks forged by the driver’s brother-in-law!

Share/Save

Share/Save

The familiar standards governing expert opinion testimony are found in three separate rules. See N.J.R.E. 702, 703, 705. An expert is one who is qualified “by knowledge, skill, experience, training, or education” and who is therefore permitted to offer testimony in the form of an opinion that “will assist the trier of fact to understand the evidence or to determine a fact in issue.” N.J.R.E. 702. Experts, unlike other witnesses, are permitted to rely on information that would otherwise be hearsay, and to present it to the jury, if others in their field of expertise reasonably and customarily do so. N.J.R.E. 703; see N.J.R.E. 705 (governing disclosure by experts and manner of questioning experts). The Court has held, in its seminal decision, that because expert opinions in narcotics prosecutions are governed by N.J.R.E. 702, such testimony is limited to “relevant subject[s] that [are] beyond the understanding of the average person of ordinary experience, education, and knowledge,” State v. Odom, supra, 116 N.J. at 71. Expert testimony is not admissible if the transactions at issue occurred in a straightforward manner. Moreover, experts may not, in the guise of offering opinions, usurp the jury’s function by, for example, opining about defendant’s guilt or innocence or about the credibility of parties or witnesses. Unless confined to their proper role, expert opinions may present the risk of undue prejudice to defendants. As for the use of hypothetical questions, although permissible, their use is not unbounded. The Court has imposed a number of safeguards, including that defendant’s name not be included in the question or answer and that the judge should instruct the jury that they are not bound by the expert’s opinion because the decision about guilt is theirs alone.

Lay opinion testimony can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its functions either by helping to explain the witness’s testimony or by shedding light on the determination of a disputed factual issue. Perception rests on the acquisition of knowledge through use of one’s sense of touch, taste, sight, smell or hearing. Although our appellate court, in explaining lay opinion testimony, has referred as well to the officer’s training and experience, the analysis of admissibility has been, as it must be, firmly rooted in the personal observations and perceptions of the lay witness in the traditional meaning of Rule 701. There are, however, limits that have traditionally been imposed on lay opinion testimony. For example, unlike expert opinions, lay opinion testimony is limited to what was directly perceived by the witness and may not rest on otherwise inadmissible hearsay.

Share/Save