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Search & Seizure


Interviewer: Are police officers usually aware of illegal search and seizure? Are they encouraged or are they trained to do this? What’s the deal with that?

James Abate: It’s not illegal until a judge determines it’s illegal. It’s not illegal until they retain an attorney to protect their rights. Police know how to use their cop magic to get people to do what they want. A police officer comes to a vehicle. He says, “I smell raw marijuana in your vehicle. Do you have drugs in here?” You may or may not have. He doesn’t have an obligation to tell the truth to you. He does when he goes to court but to you, the criminal defendant, he can lie and say he smells drugs. If you say, “You’re right, Officer. Here they are,” that brings into account the plain-view and plain-smell exceptions of the Fourth Amendment.

The officer, if he smells drugs or if he sees drugs, that’s not illegal at all. That is an exception to the search requirement. An officer doesn’t have to ignore things that he perceives. Really, one of the best things a police officer has to search you is to pull you over and to smell your car. If he has reason to think that there may be drugs but he can’t smell them, he can always bring on a sniffer dog to smell your car.

A real gray area is in the area of consent. Once you consent to a search, you may have waived your protections under the Constitution to be free from a search of your vehicle because you’ve given permission. People should never give permission for a search. If they want to get a warrant, let them get a warrant. New Jersey recognizes that you are under a lot of pressure and so while the federal Constitution closes any inquiry once you’ve consented to the search, in New Jersey a police officer cannot ask to search your vehicle unless he can articulate a reasonable belief that drugs could be found in the vehicle.

Investigations

Interviewer: How do people typically know that they’re being investigated?

James Abate: It comes down to a couple of different things. If it is for distribution or drug offenses not involving possession, you may not know until you are arrested. If you are being charged with trafficking or distribution of hard drugs, the police may be listening in on your conversations. They may have an informant against you. You will not know what’s going on until they are at your door with a warrant to search your property or until you are out of the premises and they are slapping the cuffs on you and reading you your Miranda rights.

With a motor vehicle stop when you’re dealing with marijuana or other drugs that can be easily transported, every police stop is potentially an investigation for drugs. Quite frankly, the reason why they may pull one person over as opposed to another can be because they suspect they will find drugs in that vehicle. When the officer says, “I smell marijuana in your car,” you know you’re being investigated at that point. When they say, “Do you have drugs in the vehicle?” then you’re being investigated.

Pleading Guilty

Interviewer: For someone who has an actual possession charge, is it wise to just plead guilty?

James Abate: No, absolutely not. They should not speak to anyone until they’ve retained a lawyer. They can be candidates for a diversionary program wherein they don’t have to go to jail or take a criminal record. The search may have been done improperly to the point where we can suppress the fruits of the search. You can always plead guilty later on. There is no upside to pleading guilty without an attorney. Quite frankly, considering the repercussions of the guilty plea to drug possession, I don’t know a judge that would allow a criminal defendant to plead guilty without retaining counsel.

Types of Representation

Interviewer: What would be the advantage of having a private attorney over a public defender in a drug case?

James Abate: There are many good public defenders but they are completely overwhelmed. They will typically not know anything about your case until the day of court when they ask you what happened. A private attorney is going to sit down with you. He’s going to go over the facts of your case. He’s going to research the law to determine what suppression issues are available. He’s going to conduct an investigation. Frankly, he has no pressure to resolve your case at a pre-indictment stage. He can always do further investigation. He can always file motions to dismiss.

You’re paying for his time. With a public defender, they are giving you their time. They’re not going to have the resources and they need to get cases resolved, whereas the private defense attorney is more interested in getting you out of trouble.

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