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.

One pound of most things is not a lot. A person can lose a pound in a day fairly easily, and gain one as well. But 585 grams, just over ½ of a kilogram or approximately one pound, when it comes to a controlled substance, is all it takes to get yourself in very, very hot water. Two nineteen year old men are certainly in some trouble for allegedly being found with an open container of alcohol, underage drinking, and interestingly, exactly 585 grams of marijuana while in their car in Brick, New Jersey.

Let's be clear: when it comes to pot, there are really only two options. The first is possession of under 50 grams, in which the charge is a disorderly persons offense (non-indictable, although you will be arrested, booked, and arraigned). The second is possession of over 50 grams. This one, considered intent to distribute, is, according to N.J.S.A 2C:35-10, a crime of the fourth degree, and can carry with it a fine of up to $25,000.00. It gets even better: possess drugs within 1,000 feet of a school zone, and if you're not imprisoned (as defined by the penal code), you'll have a mandatory 100 hours of community service you'll have to complete.

When it comes to determining whether or not there was intent to distribute, the factor most largely examined by the court is the amount of the drug that was seized by police. Someone caught with 30 grams of pot is more likely to convince a judge that it was for personal use than say, someone caught with 585 grams (about one pound). Some even try to argue that their 200+ grams of marijuana in the freezer bag in their desk drawer is for personal use, and that they just prefer to "stock up". Your personal preference of keeping a full stash is simply not persuasive or relevant for legal purposes.

In a Court of law, even with an attorney, that approach will not work. In fact, the New Jersey law allows an individual to possess a relatively large amount of marijuana, 50 grams. It's extremely unlikely that someone who possesses over two ounces of pot would have it and keep it to avoid the inconvenience of seeing their distributor or dealer once a week.

The bottom line? Possession of pot in excess of 50 grams will get someone in a whole lot more trouble than an amount under 50. So if police find you in possession of any pot/marijuana or any controlled substance, call a lawyer, obtain legal counsel, retain an attorney immediately. A good attorney will examine the details of your case, including method of arrest, search, seizure, and measured amount of controlled substance, among other aspects that might affect your welfare and determine the most appropriate legal strategy for your defense.

Police have reportedly just made the second largest drug bust in upstate New York, finding a young co-ed with a LOT of heroin. Keri Blakinger, a 26 year old senior at Cornell University, was arrested holding over 6 ounces of heroin, in a Collegetown hotel-motel. It is suggested that she was holding 500 uncut doses or $150,000.00 worth of the drug. Her former boyfriend has a history of drug charges in the area. Columbia, Brown and the other Ivy League universities all have drugs on or around their campuses, but this large amount is thankfully not common. It is unfortunate that the opportunities afforded to someone who earns an Ivy League degree will be lost on this student, and a tragic waste. Instead, she will be tested by the legal and, likely, penal system instead of the educational system.

Though the college student is described as holding $150,000.00 worth of heroin, the New Jersey laws regarding drugs or narcotics use weight in ounces rather than "street value" to measure the severity of the crime committed. If Keri had been in a New Jersey jurisdiction, she would be subject to various drug offenses. If the amount a defendant is charged with holding is greater than 5 ounces, the crime constitutes a first-degree crime, and carries with a possible 10-20 years in prison. The crime "intent to distribute" does not actually mean that the state would be required by the Court to prove that the person was a real "drug dealer" by trade or day-to-day profession. The way the law is written, it assumes that if someone has so much of a drug, he or she must be planning on selling it. It isn't something that people typically stockpile for use alone.

If you are, or anyone close to you is accused of possessing any amount of illegal drug, an experienced attorney should be retained in order to determine the best possible strategy to protect your rights. A skilled defense attorney can examine the facts and identify where the state's case might be fall short in terms of sufficient evidence and of burdens of proof, as required by law.

A 2007 Beacon Theater hip-hop concert arrest sends another rapper to prison. In this case, Ja Rule will head to prison for two years. Lest anyone believe him to be a "wanna-be," Ja Rule pleaded guilty, just as Lil Wayne did in response to his arrest at the same event, to attempted criminal possession of a weapon. It is stated on the record for the Police, that he was found with a .40-caliber loaded semiautomatic gun in his pricey, speeding Maybach.

The New York City gun laws are the toughest in the nation and Ja Rule became the latest celebrity to learn a difficult lesson. New York City imposes a mandatory minimum prison term on the gun related offense, in this case a violent felony. The Court takes any offense involving a firearm as extremely serious. In New Jersey, the possession of a gun triggers mandatory jail time, as governed by the Graves Act N.J.S.A. 2C:43-6.

Furthermore, the Graves Act requires time periods of parole ineligibility in addition to mandatory prison terms for certain gun offenses, as well as for related offenses committed while in possession of a firearm. These include offenses such as homicide, manslaughter, aggravated assault, kidnapping, sexual assault, aggravated sexual contact, robbery, and burglary.
If two years seems like a long time, take a moment to consider that he might have gotten 15 years if he had been convicted of the initial weapons charges. He has some time to relax, if that is possible, because he is free at least until his next Court date in February, when a date will first be set for sentencing. His attorney is earning the counsel fees for sure, and demonstrated how crucial a skilled attorney is, whether or not you are a rapper.

The law is gender-blind for sure, at least, because rappers who have done jail time include Foxy Brown, Lil Kim and T.I. Plaxico Burress, the former New York Giants football player was charged with the same crime and received the same sentence last year. In his case, though, he shot himself. Ja Rule's wife and children living in New Jersey, will write and visit, no doubt, and help his time fly. They can be sure, his criminal defense attorney did as well as any could have given the facts of his case. Be sure to contact the best possible defense attorney, should you find yourself charged with any kind of weapons related or other crime.

Part III: More Exceptions
Another exception is the "community caretaking" exception, which means what the name implies, that the search is performed without a warrant in the interests of the safety of the people or citizenry. In State v. Hill, 115 N.J. 169, 178 (1989), the Court noted that the community caretaking exception has been applied mainly to the context of an impounded vehicle. This exception has been extended under the "Special Needs" rule. When the State can show that the purpose of a warrantless search was to protect the property or safety of its citizens, the courts assess the lawfulness of police conduct on the flexible standard of reasonableness of the police action under the particular circumstances of the case. See State v. Diloreto, 180 N.J. 264, 275-76 (2004). To the average person, this wouldn't instill a whole lot of confidence. But consider, for examples of what reasonableness means, that the person in the presence of police may have recently been involved in a major crime, Cf. State v. Faretra, 330 N.J.Super. 527 (App. Div.), certif. den. 165 N.J. 530 (2000), or there a weapon is at the scene, Cf. State v. Navarro, 310 N.J.Super. 104 (App. Div.), certif. den. 156 N.J. 382 (1998) and State v. Padilla, 321 N.J.Super. 96 (App. Div. 1999), aff'd 163 N.J. 3 (2000).

Further, "exigent circumstances" is a narrowly construed exception, in the medical sense. The medical emergency exigency test is met upon "a prudent and reasonably based belief that there is a potential medical emergency of unknown dimension." State v. Castro, 238 N.J.Super. 482, 489 (App. Div. 1990). In State v. Scott, 231 N.J.Super. 258, 275 (App. Div. 1989)(Ashbey, J., dissenting), rev'd on dissent below 118 N.J. 406 (1990), the court articulated the three elements to the emergency-aid exception: (1) the existence of an emergency as viewed objectively; (2) a search not motivated by a desire to find evidence; and (3) a nexus between the search and the emergency were satisfied by the facts of the case. The circumstances should present "sufficient exigency created by the information imparted ... to justify immediate action by [the officer], as distinct from retreating and initiating warrant procedures." State v. Castro, supra, 238 N.J.Super. at 487. That should make the average person feel a little better.

These principals are important to know if a police officer knocks on your door because it is the only way you can protect your rights. After the fact, an attorney can help sort through the details to determine the best criminal defense.

Part II Exceptions to the Warrant Requirement:
A basic principle of Fourth Amendment law is that "searches and seizure inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 5861980). The State bears the burden of proving that a warrantless search falls within one of the few, narrowly circumscribed exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). Of course, if police have entered your home without permission without a warrant resulting in criminal charges, you should contact an attorney immediately.

One such exception is the "protective sweep." In Maryland v. Buie, 494 U.S. 325 (1990), the Unites States Supreme Court determined the circumstances under which the police may perform a warrantless protective sweep of a defendant's premises incident to an arrest in order to ascertain the presence of any dangerous third parties. The Court held that the Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Id. at 327, 334, 337. Such a protective sweep is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. Id. at 335. The sweep is to last no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Id. at 336. Thus an officer's search for contraband or other evidence incident to an arrest does not constitute a protective sweep, and therefore cannot be based upon merely a reasonable suspicion.

New Jersey also has addressed protective sweeps. In State v. Henry, 133 N.J. 104, 118 (1993), the Court held that upon arresting an individual, "[t]he police may also 'fan out' and conduct a protective sweep of the area if they have reason to believe that they may be in danger from other parties on the premises." In State v. Doyle, 42 N.J. 334 (1964), the New Jersey Supreme Court found that the key to the propriety of a search is when the defendant was arrested. Police may not search in order to arrest, and a search to uncover evidence upon which to arrest is not made lawful because the desired evidence is obtained. Id. at 342. Absent a valid search warrant, the police must actually perform a valid arrest at same time that they performed the search that police justify as incident to an arrest. Id. at 342-43.

It is important to note that the scope of the sweep is a crucial factor. In Chimel v. California, 395 U.S. 752 (1969), the Court held that in the absence of a search warrant, the justifiable search incident to an in-home arrest could not extend beyond the arrestee's person and the area from within which he might have obtained a weapon. A search of a person or things within his immediate control or of the place of arrest to the extent that it is within his immediate possession or control is considered incidental to the arrest. Doyle, supra, 42 N.J. at 344. If police fish around beyond the area where a person might be able to reach, for example, evidence they find is not permissible in Court. Police then arguably must be able to convince the court that the evidence of danger was in reach. The experience of a police search and seizure at the home can be overwhelming, which is why these facts are best examined by a skilled attorney in order to determine the best defense strategy.

Part I
The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States Dist. Court, 407 U.S. 297, 3131972). Accordingly, it is well established that "searches and seizures inside a home without a warrant are presumptively unreasonable," Payton v. New York, 445 U.S. 573, 586 (1980), and so "prohibited by the Fourth Amendment, absent probable cause and exigent circumstances." Welsh v. Wisconsin, 466 U.S. 740, 749 (1984). This is a constitutional right that should be protected by your attorney in any criminal defense case.

As noted in Welsh: Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate. 466 U.S. at 750.

In other words, the Court assumes that entry without a warrant is barred, and the burden is on the state to prove that the police had an urgency reason that prevented the ability to first obtain a warrant. If they cannot, any type of evidence obtained as a result of that entry will not be permitted to be relied upon at trial (fruit of the poisonous tree).

For example, in State v. Holland, 328 N.J.Super. 1 (App. Div. 2000), the officers conducted a warrantless search of a residence based upon the smell of burning marijuana emanating from the home. The average person would assume that the police could use that scent to generate probable cause. Probable cause should justify a warrant, not warrantless entry or entry without consent. If the suspect voluntarily permitted the police in, or if the suspect voluntarily left the home, that is a different legal situation. In this instance, relying upon several rulings of the United States Supreme Court which stress the sanctity of a person's home, the Holland Court found that there was probable cause to believe someone possessed marijuana, which is a disorderly persons offense, but the minor offense did not generate the exigent circumstances which would justify a warrantless search or arrest in the suspect's home. 328 N.J.Super. at 7. In that type of situation, anything the police found or were told when they entered the home without consent that would incriminate a suspect is barred.

Police found weapons, cash, and drugs in the Asbury Park home of a local dentist.  Dr. Raymond Pacholec had more than 40 marijuana plants, two pounds of cultivated marijuana, $10,000 cash, handguns and rifles located in his home.  He choose to protect these items with a burglar alarm.  Unfortunately for him, the alarm was somehow tripped and no one was home to answer the phone calls.  Thus, local police went to the residence to check for signs of a break-in.  While there the police detected a strong odor of marijuana, they searched the premises to discover the other contraband.

New Jersey Criminal Lawyer Blog's Take: One might be asking how the police were able to get into house with no one home.  The answer is probable cause.  The police were able to obtain probable cause that illegal activity might be found within the home when they detected the strong odor of marijuana.  Dr. Pacolec's defense attorney will surely make a motion to have the search invalidated, but it will be a tough motion to prevail.  It is true that the 4th Amendment protects us from unlawful search and seizures, but there are many exceptions.  If a person can smell marijuana, or even look into a window and see contraband, either event gives rise to probable cause.

Dentist charged with marijuana in home (March 17, 2009 - Asbury Park Press)