On June 6, 2023, the New Jersey Appellate Division issued State v. Johnson, a valuable published opinion that clarifies the procedures that must be followed under the “vehicle registration search” exception to the warrant requirement. The vehicle registration search exception the warrant requirement authorizes police to enter a lawfully stopped vehicle to conduct a pinpointed search for a paper registration certificate if the motorist is unable or unwilling to produce that document after having been provided a meaningful opportunity to comply with the officer’s request. By holding that “a motorist is not ‘unable’ to produce a registration certificate within the meaning of the exception when the sole reason for that inability is a police officer’s discretionary decision to prevent reentry,” the Appellate Division effectively prevents police from forcing a police search of a glove compartment by denying the motorist access for safety reasons.

In Johnson, the defendant parked and exited his vehicle before the police could complete the stop. The question before the court was whether the police could lawfully initiate a vehicle registration search when the detained driver is outside the vehicle at the time the officer requests the registration certificate, but where the officer deems it unsafe for the driver to reenter the vehicle to retrieve it. The court concluded that providing a detained driver with a meaningful opportunity to produce the registration certificate is an essential prerequisite for conducting a registration search, and that the requirement to provide that opportunity can only be waived if the driver is genuinely unable or unwilling to comply with the police request for the vehicle credentials. In the court’s view, any alternative interpretation of the registration search exception would undermine, if not completely negate, the protection of privacy rights guaranteed by the meaningful opportunity element, as it would leave the application of this exception entirely at the discretion of the police without any possibility of review.

Applying the new rule to the facts of the case, the court concluded the police were justified in placing the defendant in their car for safety reasons and preventing him from reentering the detained vehicle during the investigative detention, but that they were not permitted to undertake a warrantless registration search. The court noted that adhering to the meaningful opportunity prerequisite in such circumstances does not hinder the police’s ability to investigate whether a car is stolen, as they can obtain the necessary information contained in the paper registration certificate by conducting a lookup in the Motor Vehicle Commission database.

The court also addressed the impact of a recent revision to N.J.S.A. 39:3-29, the statute that outlines a motorist’s obligation to possess and present a registration certificate to the police during a motor vehicle stop and serves as the foundation for the registration search exception to the warrant requirement. Under the revised statutory framework, motorists are no longer obligated to carry a physical copy of the vehicle registration certificate. Instead, they are now permitted to possess and present the registration certificate in either paper or electronic form. To prevent fruitless searches for a physical document that may not even exist and is not required to be kept in the vehicle, going forward, police officers may not enter a detained vehicle under the authority of the registration search exception to search for a paper document without first inquiring whether the registration is kept in paper or electronic form.

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Protect your rights. If you are the driver of a personal vehicle or the owner, you have what is known as an expectation of privacy and “standing” to suppress searches. For questions regarding criminal defense of traffic and warrantless searches, contact Stahl Gasiorowski Criminal Defense Lawyers. Our offices are located in Mountainside, New Jersey and Manhattan. Contact us online or call us at 908-301-9001.

In an extremely controversial 4-3 opinion, the New Jersey Supreme Court upheld trial and Appellate Division rulings compelling a defendant to provide his cellphone passcode pursuant to a search warrant. The defendant was an Essex County Sheriff’s Officer accused of providing a drug dealer confidential information about an investigation into the dealer and his co-conspirators. The drug dealer gave evidence establishing that the sheriff’s officer provided him information about undercover surveillance of his vehicle and phones, as well as other case related information. Law enforcement confirmed there were numerous texts and calls between the sheriff’s officer and the drug dealer. Law enforcement obtained a search warrant for the officer’s cellphones, but were unable to access them without the defendant’s passcodes or PINs.

The State moved to compel the officer to disclose the passcodes to his two iPhones. The defendant opposed the motion, claiming that compelled disclosure of his passcodes violated his protections against self-incrimination afforded by New Jersey’s common law and statutes, and the Fifth Amendment to the United States Constitution. The trial court rejected those arguments, ruling that “the act of providing a PIN, password, or passcode is not a testimonial act where the Fifth Amendment or New Jersey common and statutory law affords protection.” The court reasoned that “[a]llowing the State to access the call logs and text messages on [the] iPhones will add little to nothing to the aggregate of the Government’s information.” Further, “any testimonial act contained in the act of providing the PIN or passcode is a foregone conclusion because the State has established with reasonable particularity that it already knows that (1) the evidence sought exists, (2) the evidence was in the possession of the accused, and (3) the evidence is authentic.”

The trial court limited access on the cellphones “to that which is contained within (1) the ‘Phone’ icon and application on the two iPhones, and (2) the ‘Messages’ icon and/or text messaging applications used by the defendant during his communications with the gang member. The court also ordered that the search be performed by the State, in camera, in the presence of defense counsel and the court, with the court reviewing the PIN or passcode prior to its disclosure to the State.

In upholding the lower courts’ decisions, the Supreme Court agreed that compelled production of the passcodes fell within the “foregone conclusion” exception. The Court found the State demonstrated the existence of passcodes and the defendant’s possession and operation of the cellphones. The passcodes’ self-authenticating nature rendered the issue one of surrender, not testimony. Thus, the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination was applicable.

The Court concluded that neither the Fifth Amendment’s privilege against self-incrimination nor New Jersey’s common law and statutory protections protect a criminal defendant from compelled disclosure of the passcodes to his cellphones.

In a strongly worded dissent Justice LaVecchia wrote in part:

In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts — the contents of our minds — from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.

We are at a crossroads in our law. Will we allow law enforcement — and our courts as their collaborators — to compel a defendant to disgorge undisclosed private thoughts — presumably memorized numbers or letters — so that the government can obtain access to encrypted smartphones? In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.

The Court’s outcome deviates from steadfast past principles protective of a defendant’s personal autonomy in the face of governmental compulsion in a criminal matter. Those same principles should apply even in the face of the latest challenge presented by new technology.

The Court’s decision here is contrary to other state and federal courts who have examined this very issue, making this matter and the overarching issue ripe for the review of the United States Supreme Court. Until such a review is conducted by the United States Supreme Court, defense counsel must advise their clients that they will be held in contempt for failure to reveal their passcodes when a validly issued search warrant is obtained.

This is an ever-developing and expanding area of law. It is important to hire well-versed and adept counsel when dealing with law enforcement’s intrusion into your personal data. We at Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

Headlines and tweets coming out of Washington have put a spotlight on law enforcement’s use of informants, now known in federal parlance as “confidential human sources” or CHS. Putting aside the political theater and self-serving spin of the “criminal deep state” and the planting of spies, how are informants used in every day investigations?

Using human sources (informants) to collect information is common throughout municipal, state and federal investigations. Informants are either individuals who have been charged with their own crimes and have agreed to cooperate in the hopes for reduced charges or sentence based upon that cooperation, or are people who are paid for their information and access to criminal groups or activities. The use of confidential human sources is expressly encouraged by the guidelines that cover the FBI’s behavior. The Guidelines for Domestic FBI Operations, a manual issued under former Attorney General Michael Mukasey in 2008, states that “the identification and recruitment of human sources—who may be able to provide or obtain information relating to criminal activities, information relating to terrorism, espionage, or other threats to the national security, or information relating to matters of foreign intelligence interest—is critical to the effectiveness of the FBI’s law-enforcement, national-security, and intelligence programs, and activities undertaken for this purpose are authorized and encouraged.”

Informants serve a valuable law enforcement function as they have access to certain groups and activities that traditional law enforcement and undercover agents may not. When their use is carefully monitored and regulated, the information can lead to valuable intelligence information, search warrants and arrests. A simple example comes from the field of drug investigations. The local police arrest a person for possession of controlled substances. The police tell the arrestee that he can help himself by “giving up” his supplier – dealer. The arrestee is then sent to the dealer to make a “controlled buy.” The police search the arrestee/informant and his car before he drives to the dealer’s apartment. They provide him with the money to purchase the drugs and watch him drive to the apartment. He goes inside, makes the transaction and then is followed back to a prearranged meeting spot afterward. The informant gives the police the drugs he just bought and the police once again search the informant and his car to make sure there is no other contraband. The informant’s controlled purchase is then used as part of the probable cause to obtain a search warrant for the dealer’s apartment.

Like any law enforcement tool, however, the use of informants can be abused and misused. Informants may have an agenda of their own, they may mislead law enforcement or set-up innocent individuals. There are countless examples of the misuse of informants by corrupt officers, or ones that simply take short cuts and do not thoroughly vet the informant or carefully monitor their activities.

Robert Stahl, and his firm, Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

Fitbit Data Leads to Husband Charged with Wife’s Murder

Technology has advanced the ease and quality of life immeasurably. Smart phones are handheld computers that can surf the internet; deliver emails, texts and phone calls; take videos and pictures; make dinner reservations and track your every movement through various apps. Our cars can almost drive themselves with lane change warnings; infrared cameras; heads-up displays, cruise control with radar; event data recorders that record speed, braking and seatbelt use; and GPS tracking in case the car is stolen. Home security cameras, Amazon Echo, smart TV, smart appliances and the like can all be controlled remotely through the internet. A variety of devices that are small and comfortable enough to wear, such as Fitbits, iWatches and the like can track our movements, heart rates, calories burned, number of steps and location.

As helpful as these devices are to their users, law enforcement too has come to discover that these devices can provide valuable, irrefutable evidence in criminal investigations. Just recently, a Connecticut husband was charged with his wife’s murder after his story about his wife’s whereabouts was refuted by information from her Fitbit that revealed not only her location but when and far she was moving (or not) at specific times.

Earlier this year, Arkansas authorities used recordings from an Amazon Echo in a murder case. And last year, investigators in Ohio used evidence from a man’s pacemaker to charge him in an arson case.

Until recently, E-Z Pass records, cell site pings, GPS in our cars, social media postings and red light and other security cameras were all that investigators had available to piece together a person’s movements with varying degrees of accuracy. Now, with these new wearable devices, law enforcement has gained valuable new tools to track a person’s movements.

With rapidly developing technology, and law enforcement’s ability to gather and use the information in criminal cases, courts are increasingly called upon to determine the legitimate collection and preservation methods permitted. Whether the collection of the data requires a search warrant, communications data warrant or grand jury subpoena is being fought in courts throughout the country.

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Protect your rights.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success.

Our offices are located in Mountainside, New Jersey and Manhattan. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com. Or Contact us online.

The Fourth Amendment of the U.S. Constitution protects us from unreasonable searches and seizures. Unlike a warrantless stop and search of a car or of a person walking down the street, when law enforcement searches a home or business they have usually obtained a search warrant to do so. A search warrant must be issued by a neutral and detached magistrate (judge); be supported by probable cause; and describe in detail the place to be searched and the things to be seized. In the typical situation, an agent or police officer working with the prosecutor drafts a search warrant affidavit that provides the judge with probable cause to believe that evidence or contraband will be located at the particular location to be searched. Probable cause exists where the facts and circumstances within the agent’s knowledge, from reasonably reliable and trustworthy sources, would cause a reasonable person to believe that a crime has been committed and that seizable property can be found at the location to be searched.

As an example, in a typical drug case the police have information that drugs are being sold from a particular house by a particular person. The police would likely confirm that the person they suspect lives at that house, confirmed through utility bills, property records or surveillance over a number of days or weeks. The police could have an informant do a “controlled buy” of drugs from the person at that house and have information that additional quantities of drugs are still in the house or are due to be delivered at a certain time. The affidavit would describe all of this in detail to the judge, as well as a description of the house to be searched.

Probable cause is more than mere suspicion, it is more akin to reasonable cause. The information presented must also be timely – meaning that the informant in this example bought drugs within the last week or so, not months prior without more recent information to update the affidavit to convince the judge that drugs and drug records will likely still be at the house. The judge reviews the totality of the circumstances in making a decision whether to issue the search warrant or not.

A search warrant is also limited to a specific number of days and times of day that it can be executed. Usually the warrant is good for a maximum of 14 days and most allow the search to be conducted between the hours of 6 a.m. to 11 p.m. unless special circumstances are demonstrated to the judge. Most search warrants require the police to “knock and announce” their presence and that they have a search warrant authorizing them to enter the house. If after a reasonable amount of time the person does not answer their door, the police may force their way into the home or business to be searched. In certain limited circumstances, the court may issue a “no-knock” warrant that permits the police to force their way into the place to be searched without any prior knock or announcement. In such cases, the judge would need to be convinced that there would be a danger to the officer or a risk of destruction of the evidence for a no-knock warrant to be granted.

Once the search is completed, the officers will leave a copy of the warrant and a receipt for the property taken. The copy of the warrant is not the affidavit of probable cause that was submitted to the court. Rather, it is simply the form search warrant cover sheets that list the location to be searched, the permitted time and items to be seized. The defendant’s attorney would obtain the actual affidavit during discovery in the criminal case.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend organizations and individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rgs@sgdefenselaw.com.