Life is getting rougher on the cheating husband or wife, and divorce cases may just see an uptick. Technology has made it easier for a private investigator to catch a disloyal spouse in the act (of doing something disloyal), and the New Jersey Courts say that using a G.P.S. or global positioning system is legal.

A New Jersey judge recently ruled that it is not a violation of a person's right to privacy for a private investigator or suspicious spouse to install a GPS tracking device in a person's car. Private investigators can now freely employ this tactic to determine the whereabouts of cheating spouses, as well as to track debtors, suspects of insurance fraud, and more.

It is very likely the court would not have ruled this way if the police implanted, placed or installed the GPS device. The Fourth Amendment of the United States Constitution protects Americans from unlawful searches and seizures. The law stipulates that police must obtain a search warrant based on probable cause before invading an individual's privacy. The reason that this right governs the police but does not extend to the private investigator is because the United States Constitution only protects Americans from those acting on behalf of the government, such as the police. It does not protect Americans from private citizens. The police would not be able to implant a GPS tracking device on your vehicle that they could use to track you without a warrant.

If you were charged criminally and the police have searched your private residence or workplace without a warrant you should contact a criminal lawyer immediately. Further, if you are the subject of any legal action based upon information gathered from such a GPS device, it would also be in your best interests to consult a lawyer to determine the strongest legal strategy.

Braylon Edwards, it was reported recently, upon being pulled over in the early morning hours for having overly tinted windows, was charged with drinking and driving. In response, he first suggested that perhaps he might just leave the car and head on home (really?), then questioned the legality of police procedure which stopped him for the windows only to discover that he had been drinking, without performing a field sobriety test.

Putting Edwards' off the cuff analysis aside, there are two issues here regarding his legal situation. Firstly, he is on probation in Ohio connected to aggravated disorderly conduct charges. It is unknown whether his Ohio probation will be affected by a DUI arrest in New York. In New Jersey, for example, the DUI charge is under Title 39, which governs motor vehicles. It is not a violation of the criminal code unless there is an injury. Thus, it would be doubtful that it could be a legal setback his most recent charges occurred in New Jersey. DUI is a serious offense, however, and has been treated with appropriate gravity by the Courts in recent years, so it is possible that Edward's actions could have some impact on his probation where discretion is permitted.

Secondly, the overly tinted windows caused the police to stop Edwards. The police cannot arbitrarily pull over drivers, however if a car has very tinted windows, which are illegal, they can lead to a police stop, and the noticeable odor of alcohol provides the police officer probable cause to inquire about the driver's level of intoxication, and subsequently, to request that a driver step out of the vehicle.

If you are trying to stay out of trouble, drive a vehicle that will stay under the radar, and attract no attention. Perhaps professional athletes are not familiar with this approach to life. According to reports, should he receive up to a year in prison, he may find it harder to go unnoticed among fellow inmates. Further, spontaneous legal analysis of police behavior is ill-advised, and best left to the skilled attorney that you should immediately consult should you find yourself in any similar situation.

A car is parked on the side of a highway with the internal light on and its occupants in a heated discussion of some sort. A police officer appears at the driver's side to check on the situation and make sure they do not need help. After being assured by both driver and passenger that they are fine and in no need of help, the officer smells what he believes to be alcohol on the driver's breath, and requests that he exit the vehicle for the purposes of a field sobriety test. Is this test respectful of the driver's constitutional rights? Is this test a warranted attempt to protect all the other vehicles on the road?

An experienced lawyer would tell you that according to the New Jersey courts, the oral aroma or odor of alcohol alone is not sufficient to sustain the probable cause necessary for questioning and sobriety testing. The New Jersey Appellate Division, in State v. Hawkins, A-7400-97T5F (1999), held that the smell of alcohol on an individual's breath is insufficient to provide probable cause for the officer's belief that the driver was operating his vehicle under the influence of alcohol in the absence of any untoward driving or other indication of insobriety. In the Hawkins case, the defendant was stopped for a community caretaking reason when the officer heard a scream emit from the vehicle. There was no evidence of unsafe or illegal operation of the car. The only indication to the officer that the defendant had consumed alcohol that evening was the odor on his breath.

The New Jersey Appellate Division again addressed this issue in State v. Jones, 326 N.J.Super. 234, 245-6 (App.Div. 1999), stating that, "The nervousness of the driver, considering the fact of the stop itself, along with his consumption of alcohol, is expected. The mere smell of alcohol and admission of consumption may not, by itself, warrant a sobriety test...However, justification of the search under these facts would have the effect of permitting a search...of every motor vehicle which is stopped for a minor motor vehicle violation, where the driver admits to having consumed one bottle of beer. Such a search goes beyond the bounds permitted and does not pass constitutional muster." In the Jones case, the driver was stopped by the police officer for failing to use a traffic signal when changing lanes on the New Jersey Turnpike. After the vehicle was stopped and the officer was speaking to the driver, the officer noticed an odor of alcohol on the driver's breath.

So not only must the police officer witness actual operation of a vehicle, he must witness a more than minor moving violation just prior to pulling you over, in order to be paired with detection of alcoholic breathe to create sufficient probable cause for a field sobriety test. Failing to signal before a lane change is too minor. What exactly constitutes a sufficiently serious moving violation for a police officer to legally request to administer a field sobriety test to a driver? Must it be obviously erratic and unsafe driving? What is clear is that alcohol on your breath is not enough. And that passes the sniff test. Reasonably, three sips of a beer could make your breath smell like alcohol, and simultaneously, you might have 6 beers in an hour, chew a couple of Altoids and not emit any oral alcoholic odor. What constitutes a serious enough moving traffic violation to make coincidental alcoholic breath sufficient probable cause to request a field sobriety test is a different legal question for a different post. Either question should be considered by a skilled attorney when defending any DUI/DWI charges, and should be contacted as soon as possible following such an incident.