Author: Kathleen Kelleher

New Jersey Supreme Court Eases Requirements for “Plain View” Warrantless Searches & Seizures

John Roberts, Esq.
Arseneault & Fassett, LLP

A recent decision by the Supreme Court of New Jersey has made it easier for the State to use evidence seized without a warrant against a defendant in a criminal trial. In State v. Xiomara Gonzales, the Court changed the law as to what constitutes a valid “plain view” exception to the general warrant requirement.

The U.S. and N.J. Constitutions ensure an individual’s right to be free from unreasonable searches and seizures. Generally, law enforcement agents must obtain a warrant from a court before they can lawfully search an individual’s home or automobile. Evidence that is obtained in violation of this general rule cannot be used as evidence against that person in a criminal trial. There are exceptions to this general rule, however, including the “plain view” exception. Among other things, police had to discover the evidence “inadvertently” for the plain-view exception to apply under the previous law. If police had advance knowledge that the evidence could be found, the evidence seized without a warrant could not be used at trial.

However, since 1990, when the U.S. Supreme Court decided Horton v. California, 496 U.S. 128, Federal law had a looser standard than New Jersey as to what factual conditions must be met for the plain-view requirement to apply. No longer.

In Gonzales, law enforcement was investigating an ongoing drug distribution enterprise. Wiretaps revealed that a drug transaction would take place at a suspected “stash house.” Police surreptitiously observed the transaction in which packages were loaded into Ms. Gonzales’s car. They followed Ms. Gonzales’s car as she drove away. After Gonzales committed several traffic violations, police pulled her over, ostensibly based only on the moving violations. During the traffic stop, police observed packages of heroin in the back seat area of her car. Gonzales was arrested and charged with drug offenses. The heroin was seized without a warrant and intended to be used as evidence against her.

Gonzales’s attorney filed a motion to suppress the drug evidence. Although the motion was denied at the trial court level, the Appellate Division reversed and granted the motion, reasoning that law enforcement’s prior knowledge that Gonzalez would be carrying drugs rendered the traffic stop a pretext and invalidated the “plain view” discovery and seizure of the heroin. The State appealed the decision to the New Jersey Supreme Court.

In its decision, the Court abandoned the prior New Jersey requirement that the discovery of evidence be “inadvertent” and instead followed the Federal standard. The Court reasoned that the inadvertence condition required courts to determine police officers’ subjective thoughts and beliefs at the time of the discovery. By not requiring inadvertence, the Court made the standard purely objective reasonableness rather than subjective state of mind. Now, contraband may be seized without a warrant when (1) the police officer is lawfully in the area where the evidence is seen and seized and (2) it is immediately apparent that the item is contraband or evidence of a crime. Through its decision, the Court brought New Jersey in synch with the law of the Federal government and a majority of states. The Gonzales decision applies prospectively – that is, only to future cases.

Anyone who has been charged with a criminal offense should obtain a criminal defense attorney. An experienced attorney who is aware of the latest developments in search and seizure law can help identify potential weaknesses in the State’s case which could support pre-trial motions to suppress evidence that has been obtained in violation of the law.

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Changes to Federal Sentencing Guidelines Affect Definitions of “Crimes of Violence” and “Career Offenders”

John Roberts, Esq.
Arseneault & Fassett, LLP


Changes to the U.S. Sentencing Guidelines have redefined “crime of violence” and “career offenders” for sentencing purposes. These changes affect key aspects of the Guidelines which Federal courts use to determine some of the most lengthy sentences.

The U.S. Sentencing Commission recognized that the previous definition of “crime of violence” was widely considered complex and unclear. The Commission was further prodded by the Supreme Court’s 2015 decision in Johnson v. United States, which found that the broad language used to define “violent felony” in the Armed Career Criminal Act — coincidentally, the same language used in the previous version of the Guidelines — was unconstitutionally vague. Finally, the Commission found that courts were imposing an increasing proportion of sentences below the Guideline ranges.

In the latest changes to the Guidelines, the Commission narrowed the definition of “crime of violence” by removing the impermissibly broad language, and revised and narrowed the list of offenses that are always deemed crimes of violence. For example, burglary of a dwelling and involuntary manslaughter have been removed from the enumerated offenses, while the use and even the unlawful possession of certain firearms have been added.

In another change, the Commission added a provision for downward departures to the Guidelines governing “career criminals.” Defendants who are deemed to be career criminals receive the harshest sentences, often at or near the statutory maximums. The latest change permits courts to depart from the Guidelines and impose a lower sentence where one of the defendant’s prior convictions was classified as a felony by the Federal Guidelines but as a misdemeanor by the State. This change provides an opportunity for an astute defense attorney to advocate for a more just sentence than a strict interpretation of the Guidelines would otherwise result in.

The Guidelines greatly influence the sentences that Federal judges impose. Criminal statutes, enacted by Congress, impose a very broad range of potential sentences for federal crimes – for example, anywhere from zero to ten years. The Guidelines are designed to help judges to narrow down the appropriate sentencing range for a particular defendant to a matter of months – for example, 0 to 6 months, or 33 to 41 months, or 87 to 96 months – and thus provide uniformity of sentences for similar criminal conduct throughout the Federal court system.

To achieve this goal, the Guidelines provide courts with a multitude of complicated formulas which consider, among other things, the law that was violated; the specific facts of each case such as the number of victims, the seriousness of the loss or damage, and the role that each defendant played; and the defendant’s criminal history, if any. Even small adjustments in these factors can make the difference between a fair sentence and a harsh one.

Although Congress established the U.S. Sentencing Commission which created and maintain the Guidelines, the Supreme Court determined that the Guidelines are not mandatory upon Federal courts. Judges are authorized to impose sentences above or below the Guidelines, based on the unique facts and legal arguments that prosecutors and defense attorneys advocate before the court.

These latest changes to the Guidelines underscore the importance that anyone who has been charged with — or is even under investigation for — a Federal offense should immediately consult with an experienced criminal defense attorney who has an intimate knowledge of the latest Guidelines. While every attorney’s goal is always to avoid having any sentence imposed on a client, the most effective attorneys will also consider all the nuances of the Guidelines to advise and advocate for the best possible result.

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Federal Court Ruling Strengthens the Right of Off-Duty and Retired Law Enforcement Officers to “Concealed Carry” Permits

John Roberts, Esq.
Arseneault & Fassett, LLP

An influential Federal Appeals Court recently ruled that qualified law enforcement officers who are off-duty or retired have an enforceable Federal right to obtain a concealed carry firearms permit – notwithstanding State and local laws that otherwise restrict or prohibit concealed carry – and can sue in Federal court when their rights have been violated.

In June, the United States Court of Appeals for the District of Columbia (D.C.) Circuit decided the case of Duberry v. District of Columbia, in which local authorities had refused to issue the documents that retired corrections officers needed to obtain their concealed carry permits. The officers retained an attorney to bring a lawsuit in Federal court to uphold their rights. The lawsuit claimed that their former agencies violated their rights under the Federal “Law Enforcement Officers Safety Act” (LEOSA).

Congress enacted LEOSA because the unique threat that law enforcement officers face due to their occupation does not end when they are off-duty or retired. LEOSA explicitly overrides state and local laws and gives retired and off-duty officers who qualify and meet certain conditions the right to carry a concealed weapon to protect themselves, their families, and their communities.

The Court ruled that officers whose rights under LEOSA have been violated by a government agency can bring a Section 1983 lawsuit to enforce their rights and force State and local agencies to comply with Federal law. LEOSA applies not only to state and local police officers, but also to Federal agents, military police, Amtrak police officers, and corrections officers.

LEOSA requires applicants to meet certain eligibility requirements to receive its protections. For example, currently employed officers must have arrest powers and be authorized to carry a firearm while on duty, among other things. Retired officers must also have had at least ten years of service. LEOSA also requires all officers to maintain their firearms training qualifications while they carry.

As Federal law, LEOSA should apply in New Jersey with as much force as it does in D.C. The recent court decision strengthens the fact that law enforcement officers and retirees living in New Jersey have the right to obtain concealed carry permits, despite New Jersey’s extremely restrictive gun laws. If local agencies resist issuing permits to qualified officers, this decision provides powerful legal precedent to enforce their rights in court if necessary.

The takeaway from this decision is that current and retired law enforcement officers who have been frustrated in their attempts to obtain their concealed carry permits in New Jersey should consult an attorney. An attorney can help you navigate LEOSA’s statutory requirements and the New Jersey concealed carry application process. If you have been denied a permit, an attorney can help determine whether your rights have been violated. If you have been denied a permit unfairly, an attorney can represent you in court to vindicate your right to protect yourself and your family.

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New Law Allows Expungements Sooner

John Roberts, Esq.
Arseneault & Fassett, LLP

In April, people who have been convicted of criminal offenses in New Jersey will be able to apply to have their criminal records expunged sooner than ever before. New legislation takes effect on that date, reducing the waiting periods for eligible indictable offenses and disorderly persons offenses.

Now, people who were convicted of an indictable offense (commonly referred to as a felony) will be eligible to apply for an expungement just five years after they complete their sentence — whether that is being released from incarceration, probation, or parole, or the payment of a fine — whichever occurs last. Under the previous law, the waiting period was ten years.

Under the new law, those who have been convicted of a disorderly persons offense or petty disorderly persons offense (otherwise known as misdemeanors) would become eligible to apply for expungement three years after their sentence has been completed. Under the old law, the waiting period was five years.

These changes represent a great opportunity for those who have been involved in the criminal justice system to get a “fresh start” in life and put their previous mistakes behind them. A criminal record can significantly inhibit a person’s ability to find a job, obtain a loan, get an education, find housing, and so many other important aspects of living a normal life. Expungement gives those people a helping hand.

When a criminal record is expunged, governmental agencies are required by Court Order to “extract and isolate” the petitioner’s criminal records. Any search that is conducted later through a government agency for records of arrest, criminal charges, prosecution, conviction, and so on, will result in “no records found.” If the person whose record has been expunged is later asked — on a job application, for example — whether they have ever been arrested or convicted, they can truthfully answer “no.” According to the law, it is as if the matter never happened.

Expungement can benefit not only people who have been convicted of an offense, but also anyone who has only been arrested, charged, or acquitted, or whose charges were dismissed through the Pre-Trial Intervention (PTI) diversionary program. Many people do not realize that even if they were exonerated or avoided prosecution altogether, a record still exists of their arrest and the charges that were once lodged against them. The new law expands that list of eligible people to include those who have “graduated” from the Drug Court diversionary program.

The expungement petition process has a number of important limitations, such as certain types of offenses which cannot be expunged. And a person who applies for employment with the court system or law enforcement must still disclose their actual criminal history. The expungement petition process itself is complicated and fraught with procedural requirements and deadlines which, if not followed precisely, can result in the petition being denied by the Court.

For all these reasons, it is important that someone considering applying for an expungement consult with a qualified criminal defense attorney who is familiar with the law.

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Welcome to the New Arseneault & Fassett LLP Website and Blog

For over 25 years, Arseneault & Fassett has been a premier litigation boutique law firm in the State of New Jersey, with a practice focused on defending white collar criminal defense matters and complex commercial litigation in state and federal courts.  Our attorneys are experienced, innovative, tough, and committed to producing high-quality and cost-efficient results for our clients.  We have consistently achieved favorable results and earned a reputation as formidable opponents respected for our integrity and devotion to our clients.

Because we live and work in a fast-moving world of ever-changing technology, we utilize state-of-the-art systems which enable us to communicate with our clients in a variety of ways.  To reach our clients who prefer to get their information from the Internet, we have given our website a new look and functionality. We have also started a Blog which will feature firm news as well as informative articles on issues and rulings that may be pertinent to your company or of interest to your personal situation.

We invite you to explore our new website to learn more about our firm, our practice areas, and our attorneys.  We encourage you to sign up for our Blog and follow us on Google+ and LinkedIn to access interesting and timely articles.


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