The Defense Production Act and 2020 Executive Orders provide the framework for these cases. It can be a criminal fraud to hoard or charge excessive prices for various PPE (personal protective equipment), such as N-95 face masks, surgical gowns, gloves, and disinfectant products. There are currently hundreds of investigations around the country.

Criminal fraud charges in this context require willful violations of the DPA and the orders and regulations issued thereunder. Hoarding must have occurred after March 25, 2020, when an Executive Order delegated powers to DHS to designate 15 categories of health and medical resources as scarce. Price gouging requires prices “in excess of prevailing market prices,” rather than a specific percentage markup. To date, no court has issued an opinion interpreting the meaning of “excessive” in this context.

Notable cases are ongoing in the District of New Jersey and the Eastern District of New York. They involve the importation of supposed FDA-approved N-95 masks from China. As alleged in the Complaints, it was later discovered that the masks were in fact not tested, nor were they approved. The government has charged the Chinese manufacturers and is currently investigating the individuals and companies involved in purchase and sale both here and abroad.

A number of high-profile price gouging cases have been brought in the Southern and Eastern Districts of New York against companies and individuals charging between 50 – 1300% mark-ups on masks. Several prosecutions allege outright fraud, where orders were placed and fees paid to individuals who had no ability to acquire or deliver the PPE. Some of these cases involved orders worth hundreds of millions of dollars.

Federal, state, and local governments, too, have been defrauded in their rush to acquire desperately needed PPE. Many public entities cannot compete with private companies – and even other countries – when purchasing PPE from Chinese manufacturers because of the oft-required 50-100% payment upfront. Government contracts rarely permit payment of more than 10% of the purchase price upfront. In order to secure the contracts, middlemen and layers of companies have been used. These situations lend themselves to fraud and price gouging by adding costly layers of people between the purchaser/end user and the manufacturer.

United States citizens and companies must be particularly vigilant in purchasing and importing PPE from overseas manufacturers. Registration and approvals must be legitimate and precede the importation. The items must meet FDA standards and the prices charged must not be excessive. A failure to comply with these requirements risks scrutiny and potential charges by federal law enforcement.

Our attorneys and staff are actively and aggressively defending clients being investigated for PPE fraud. We are also available to meet with new clients. Being mindful of the importance of self-distancing, we at times work remotely but are available to meet new clients either in person or through video conferencing, and have the capability to offer initial consultations by phone. Challenging times demand innovation and accommodation to our clients’ needs. Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time. 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.

Many federal, state, and municipal courts have limited the number and types of cases they will be handling in the near term. Some have adjourned jury trials for several weeks and in some cases even months to see what happens after a period of isolation. Courts have summarily waived Speedy Trial Act rights and ordered continuances for a period of time. State courts in particular are promoting the use of video and teleconferencing in lieu of appearing in court. Municipal courts have adjourned court appearances for motor vehicle summonses and code violations. Detention has been waived in certain cases depending on the type of crime, the age of the offender, and other relevant factors.

This is due to fears of spreading the virus to the jail population – causing a sudden boom in cases – and the risk that the greater the jail population, the greater the risk to inmates and staff.

Federal and state criminal investigations and arrests, however, are continuing. While some investigations may lie dormant for a period of time, U.S. Attorneys’ Offices around the country continue to investigate and prosecute cases, especially those with statute of limitations deadlines looming. State investigations and prosecutions continue as well.

Our attorneys and staff are actively and aggressively defending our existing clients’ cases. We are also available to meet with new clients. Being mindful of the importance of self-distancing, we at times work remotely but are available to meet new clients either in person or through video conferencing, and have the capability to offer initial consultations by phone. Challenging times demand innovation and accommodation to our clients’ needs. Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time.

Cellphone carriers acquire and maintain location information on almost every American with a cellphone. Carriers routinely sell this information to marketing companies and services, such as bank fraud protection, under contracts that require the location-acquiring companies to obtain customers’ consent. Often, that consent is hidden in fine print or an app that simply requires a click of a button. In addition to selling this valuable information to marketing companies, carriers and their intermediaries often sell tracking information to bounty hunters, repo companies, and bill collectors.

Recent news reports indicate a company called Babel Street is selling a tool called Locate X to federal law enforcement agencies. Locate X allows users to “geo-fence” an area; identifying any cellphones in a particular geographic location. The tool can see user data from months before, up to and including where a device has traveled. It was reported that U.S. Customs and Border Protection, the Secret Service, and U.S. Immigration and Customs Enforcement have spent millions of dollars on contracts to use Locate X – all in seeming violation of the Supreme Court’s Carpenter ruling.

Law enforcement yet again has the ability to track a cellphone’s movements without court authorization. If a particular geographic area is under surveillance, or a crime has been committed in the area, law enforcement can obtain the location data of any and all cellphones near that area, as well as where those devices were before and after the relevant time period.

According to recent articles, Babel Street asserts that Locate X is for “research purposes” only, and allegedly forbids law enforcement from using its data as evidence in court. That supposed limitation, however, does not protect Americans from unauthorized surveillance that the Supreme Court sought to protect in Carpenter. Requiring law enforcement to establish probable cause in order to obtain a court-authorized warrant before such intrusive data can be collected helps protect us all from unwarranted government spying and surveillance.

Even with a court order, geo-fence information can lead to erroneous conclusions by law enforcement. Just recently, a Florida man out for his normal bike ride became a suspect in a Gainesville burglary investigation after a geo-fence warrant authorized Google to reveal every person who was in the designated area at the time of the crime. Google collects location information using Bluetooth, GPS, Wi-Fi, cell phone connections and, in the Florida case, the person’s fitness-tracking app. The fitness app showed that the “suspect” passed the burglary victim’s home three times with an hour, leading police to mistakenly suspect that he was the perpetrator casing the home before breaking in.

Hundreds of millions of people carry cellphones with them every day, with the numbers steadily increasing. In turn, law enforcement’s use of geo-fenced information has dramatically risen in the past four years. Allowing unfettered access to our geo-location data violates our rights and allows the government to track our movements without good cause as determined by a neutral party – the court. While judicial procedure is far from perfect, as the Gainesville case demonstrates, it is certainly better than companies selling the information indiscriminately.

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.

When a person is a target of a federal or state criminal investigation, they are often contacted − either directly if unrepresented or through counsel if represented − to attend either a proffer or a reverse proffer with the U.S. Attorney’s Office, State Attorney General’s Office, or County Prosecutor’s Office.

While proffer and reverse proffer sound alike, they are in fact quite different. A reverse proffer is the opportunity for defense counsel to meet with the prosecutor and agents to hear some of the alleged evidence they have against the client. The agents provide a sort of “show and tell” about the investigation and the evidence against the client in an attempt to convince the client to cooperate in the investigation. Cooperate in this setting means plead guilty and provide evidence against coconspirators in the scheme. While law enforcement usually wants the client/target to attend the meeting, often experienced defense counsel will attempt to set a meeting for just counsel to ensure that the client does not inadvertently blurt out information, as many clients find it difficult to sit through these types of meetings without commenting.

Conversely, a proffer is a meeting where the government expects the client to admit and explain their role in the offense and that of any other coconspirators. Before a proffer meeting is scheduled, the client must understand the very limited protections a proffer agreement provides. The agreement only protects the client/target’s direct statements from being used directly against him at trial.

The distinction is best explained this way – if the client simply agreed to speak to an investigator by themselves, anything the client said could be used against them in the prosecution’s case in chief, and is akin to a confession. The investigator could take the stand and testify that the client divulged incriminating information. Under a written proffer agreement, anything said during the proffer by the client cannot be used directly against him at trial.

However, the proffer agreement allows law enforcement to use any information provided by the client in their investigation. They can go and collect evidence or statements from others based upon any information provided by the client. That is called derivative use of the information, and the prosecution can use that evidence notwithstanding the fact that they only learned of it from the client. The client’s statements and information can also be used at trial against the client to impeach his testimony, if he testifies and contradicts what he said in the proffer. The rationale being that the client cannot lie, either during the proffer or at trial. If he does, the jury has a right to know. And perhaps most important, the client’s defense attorney cannot put on witnesses or cross-examine government witnesses in a manner that would contradict what the client said during the proffer.

In rare instances there are occasions where a proffer can be used in an attempt to either convince the government that the client is innocent or has a very limited role in the offense. In most cases, this would be done through an attorney proffer, where defense counsel meets with the government to explain the client’s position.

Agreeing to a target proffer is a very serious step that should only be decided after sufficient facts are known about the case, the potential evidence, and the client’s exposure. Once a client proffers, it is almost impossible to later decide to defend the case at trial. It should never be to “just see what the government has” and talk about the case.

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.

With our societal addiction to the internet, smartphones, and computers, today’s teens face growing exposure to new forms of harassment and bullying. These can sometimes lead to criminal charges for those engaging in this conduct, and potentially anxiety, depression and, suicidal thoughts for the recipients.

Sexting is the sending, receiving or forwarding of sexually explicit material over electronic devices, including cellphones and computers. Sexually explicit material includes nude or partially nude photos or videos. Studies have revealed that more than 50% of young adults have sent nude or seminude photos of themselves to others, and more than 70% have received such materials. New Jersey, like many states, criminalizes the sending, possession, sharing or viewing of sexually explicit photos and videos of anyone under the age of 18 under its child pornography laws. That means that a student under 18 who sends a nude photo of themselves to another student under 18 could face criminal prosecution. While there is a diversionary program available for juveniles charged with their first sexting offense, these are serious matters that persist in middle and high schools across the country.

Revenge porn, also referred to as non-consensual pornography, is the distribution of sexually explicit images of an individual without his or her consent and without legitimate purpose. It is an ever-increasing, invasive form of cyber harassment. It usually involves a former sexual partner, who sends nude photos or videos to the victim’s family, friends, or employer in an effort to degrade, embarrass, and harass. In New Jersey, this form of harassment is a third-degree crime, exposing the perpetrator to 3-5 years in state prison.

Cyberbullying is the repeated and intentional harassment of another person over electronic devices. Cyberbullying is rampant among teenagers and has recently resulted in a number of highly publicized suicides by victims. Studies have demonstrated that the adverse impact of cyberbullying can last much longer and cause greater damage than traditional forms of in-person bullying.

These activities are the latest form of domestic violence, stalking, and harassment. They carry serious criminal penalties and require experience and expertise to handle correctly, as they risk incarceration, criminal fines and penalties, and civil restraining orders.

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.

We receive many calls over the course of the year from potential clients, telling us they received a “target letter” from the U.S. Attorney’s Office or State Attorney General’s Office and that they are considering whether to go to an interview with law enforcement under a “proffer agreement.”

When approaching these topics, our firm ensures that clients are fully informed and aware of every possibility before taking such an important step. The first task is to confirm that the client fully understands what a target letter means. Such letters explicitly state that the person is the target of a criminal investigation, meaning the government believes that it has evidence that the person committed one or more federal or state criminal offenses, and is looking to potentially charge them.

Target letters are used to get the client’s attention and are often meant to entice them into meeting with the investigating authority for an interview. Typically, the letter indicates that the client has 7 – 10 days to have their attorney contact the prosecutor with any facts they may want to bring to the prosecutor’s attention. Often, they advise that if the person does not have an attorney, they may contact the investigator directly. It is critically important for the person to retain experienced criminal defense counsel before responding to a target letter. After the attorney makes contact, the government typically pushes to have the client brought in for a proffer, a meeting limited in scope, conducted for the purpose of having the client give the government information.

Before a proffer meeting is scheduled, the prospective client must understand the very limited protections of a proffer agreement. The agreement purports to protect the client/target from incriminating themselves by prohibiting the government from directly using anything the client may say during the meeting against them later at trial. The distinction is best thought of this way – if the client simply agreed to speak to an investigator by themselves, anything the client said could be used against them in the prosecution’s case in chief, and is akin to a confession. The investigator could take the stand and testify that the client divulged incriminating information. Under a written proffer agreement, anything said during the proffer by the client cannot be used directly against him at trial. However, the proffer agreement allows law enforcement to use any information provided by the client in a number of ways.

First, the agents or investigators can go out and collect evidence or statements from others based upon any information provided by the client. That is called derivative use of the information and the prosecution can use that evidence, even though they only learned of it from the client.

Second, the information can be used at trial against the client to impeach his testimony, if he testifies and contradicts what he said in the proffer. The rationale being that the client cannot lie, either during the proffer or at trial. If he does, the jury has a right to know.

Third, and perhaps most damaging, the client’s defense attorney cannot put on witnesses or cross-examine government witnesses in a manner that would contradict what the client said during the proffer. For instance, if the client said that he was at a meeting with the coconspirators when drug sales were discussed, the defense could not argue that there is no proof of the client’s attendance or put on a witness that claims the client was elsewhere, as it would be contrary to what the client said during the proffer, allowing the proffer statement to be used for impeachment purposes.

Agreeing to a target proffer is a very serious step that can only be decided after sufficient facts are known about the case and the client’s exposure is understood. In rare instances, it could be used as an innocence proffer, where the client and his attorney try to convince the government that they are mistaken and that the client should not be charged. In the typical scenario, however, it is a calculated step toward cooperation and a plea. Thus, before even considering whether a client should proffer, experienced defense counsel and the client must review the type and strength of the evidence against the client, and whether the client has sufficient information that could assist the government in its investigation and earn the client a better plea or sentence. It should never be to “just see what the government has” and talk about the 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.

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 rgs@sgdefenselaw.com. Or Contact us online.

The federal government has hired 300 additional prosecutors and created the Opioid Fraud and Abuse Detection Unit and the Joint Criminal Opioid Darknet Enforcement Team to investigate, uncover, and prosecute the prescribing and dispensing of opioids by healthcare professionals – doctors and pharmacists – as well as street-level sales of opioids and fentanyl. Since January 2018, over 200 doctors have been charged.

What are the agents and prosecutors looking for in these cases? They are typically looking for what is referred to as “pill mill” cases, where corrupt doctors write prescriptions to patients they know or should have known are misusing the prescriptions. The pharmacists who fulfill those suspect prescriptions are also frequent targets.

Typically, investigations center on doctors who are suspected of writing prescriptions for large quantities of opioids to individuals that do not medically need them. Investigators look for red flags such as patients traveling from geographically distant locations to the doctor’s office; incomplete or no medical exams to verify alleged pain; a failure to offer alternatives, such as non-opioid based pain management; the absence of a gradual increase from less addictive pain medications to opioids; patients without medical insurance paying cash for each visit; a high number of pills prescribed; and doctors who write and fill the prescriptions themselves for cash.

With regard to pharmacists, investigators look for red flags such as prescriptions with unusually high quantities or that have evidence of alteration; patients traveling far distances to the pharmacy or the prescribing doctor; patients paying with cash for their prescriptions; a high percentage of opioid prescriptions filled; and prescriptions sent and filled from suspect doctors.

In addition to these red flags, every state but Missouri has Prescription Drug Monitoring Programs (PDMP). These programs monitor and track information submitted by doctors and pharmacies about the prescribing and dispensing of controlled substances. They track which doctors give opioid prescriptions, which patients receive the prescriptions, and what pharmacies do the fulfilling. These systems allow for quick and early detection of patterns evidencing possible fraud or abuse.

Given that many doctors and national chain pharmacies have greatly limited their prescribing and dispensing of opioids due to heightened government scrutiny, small independent pharmacies and medical practices have come under enormous pressure to fill a legitimate need for these medications. Along with that need comes the potential for abuse and investigation.

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Stahl Gasiorowski Criminal Defense has successfully represented many doctors and pharmacists under investigation by the DEA, state investigators, and licensing boards. 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.

The U.S. Securities and Exchange Commission (SEC) operates from its headquarters in Washington, D.C. and has 11 regional offices. It’s Division of Enforcement investigates cases and recommends to the Commission cases to be brought against individuals and entities. Investigations can begin through whistleblowers, news articles, referrals from other agencies, complaints from the public or data derived from market surveillance.

Enforcement can open a tentative inquiry known as a matter under inquiry (MUI) or a formal investigation. With an MUI, the staff usually sends a letter requesting information to the entity or person(s) they are considering for further investigation. If a formal order of investigation is issued by a supervisory attorney, then subpoenas for the information sought can be issued.

In certain instances, the Enforcement staff attorney can refer the case to federal prosecutors. The SEC and the U.S. Attorney’s Offices around the country usually work closely together on such matters. If a referral is made, it results in a parallel criminal investigation. The subject or target of the SEC investigation may not know at first that he is the target of a parallel criminal investigation because if asked, the SEC is simply allowed to decline to answer.

The SEC is open to having counsel present evidence and arguments why their client did not violate SEC regulations, or why the matter should be settled on favorable terms to the client. Many SEC cases are settled without formal litigation. If the matter is not resolved during the investigation, the SEC seeks authority from the Commission to bring the case. Defense counsel will usually receive a call advising that the client potentially faces charges, this is known as a “Wells call”. Staff usually follows up with a confirming letter, known as a “Wells Notice”. That Notice sets forth the proposed charges and presents an opportunity to make a submission to the Commission as to why the charges should not be brought.

If there is a parallel criminal investigation, or the possibility of one, then the client and his attorney must seriously consider exercising the client’s Fifth Amendment right not to provide testimony, and in certain instances, documents. However, in the SEC civil setting, an adverse inference can be drawn against the person exercising their Fifth Amendment right that can later be used as evidence against him in the civil proceeding.

If a criminal case is brought, by way of indictment or complaint, the SEC will normally file its civil complaint at the same time. In many cases, the Department of Justice will seek a stay of the SEC action so that the defendant is not permitted to obtain wide-ranging civil discovery to aid him in defending the criminal action. While the SEC complaint is serious and can affect a licensed individuals ability to continue in the securities industry and can result in substantial monetary penalties, the criminal action exposes the client to potential time in federal prison as well as forfeiture and restitution.

While there are many similarities in defending an SEC action and a criminal investigation, experienced counsel is a must to protect the client’s rights at all stages. Discovery, cooperation potential, settlement and trial all have aspects that differ in an administrative SEC setting as opposed to an action in federal court.

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.

A federal or state agent or detective knocks on your door at 6 a.m. and serves you with a grand jury subpoena for documents and/or testimony. Do you simply gather the documents requested and send them to the U.S. Attorney’s Office or the County Prosecutor’s Office, or do you retain experienced criminal defense counsel? If the subpoena requires testimony, what rights do you have?

A grand jury subpoena is issued from the federal or state prosecuting agency under the guise of a grand jury investigation into suspected criminal activity. The subpoena may seek years of documents and testimony regarding those documents and other relevant matters to the investigation. The subpoena may be to a witness, subject or target of the investigation. In most cases, the person served should consult with experienced defense counsel to determine whether they need representation.

First, defense counsel would contact the requesting agency to determine the status of the matter and whether the client is simply a witness or may have criminal exposure. If the client has potential exposure, then additional time will be required to understand the facts and to carefully review the documents before forwarding copies pursuant to the subpoena. There may be privileged items that counsel may attempt to withhold under limited circumstances that may require court intervention. If testimony is required, the person may invoke his right not to testify under the Fifth Amendment or seek immunity to testify. These are complicated areas of law that require experienced defense counsel to sort through.

Second, often times the scope of the subpoena is broad and the production of the requested documents can be burdensome, time consuming and expensive to locate, collect and copy. Defense counsel would discuss that issue with the prosecutor and often negotiate a limiting of the time frame or scope of the request. Counsel would also discuss an extension of time to gather, review and organize the documents to make sure that they are responsive to the request.

Simply gathering and producing documents pursuant to a grand jury subpoena may sound easy and harmless, but it can lead to a number of issues that are best handled by a criminal defense attorney. Purposely withholding relevant documents or destroying documents can lead to serious criminal charges. The act of production alone can at times be used against the person.

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.

Over the past several months I have written about the increasing use of every day technology that automatically tracks our movements and records our conversations. Cellphones ping off cell towers that give the government access to our daily movements through information stored by carriers like Verizon, AT&T and Sprint. Alexa and other smart home devices can record our conversations and keep track of our search histories. Smart phone apps and Fitbits that track movement, heart rates and other physical activity can be used to track locations, times and other physical attributes that law enforcement can access to investigate a variety of crimes.

In San Jose, California police used information gathered by the victim’s Fitbit to charge her 90-year-old step-father with murder. Anthony Aiello told investigators that he had last seen his stepdaughter when he took homemade pizza and biscotti to her house. Mr. Aiello told investigators that she then walked him to the door and handed him two roses in gratitude. Five days later, Mr. Aiello’s stepdaughter, Karen Navarra, 67, was discovered by a co-worker in her house with fatal wounds on her head and neck.

The victim had been wearing a Fitbit fitness tracker, which investigators said showed that her heart rate had spiked significantly around 3:20 p.m. on Sept. 8, when Mr. Aiello was there. It then recorded her heart rate slowing rapidly, and stopping at 3:28 p.m., about five minutes before Mr. Aiello left the house. Mr. Aiello told the authorities he had dropped off the food for his stepdaughter and left her house within 15 minutes and claimed that he saw her drive by his home with a passenger in the car later that afternoon.

Investigators obtained a search warrant and retrieved the Fitbit data. When Ms. Navarra’s Fitbit data was compared with video surveillance from her home, the police discovered that the car Mr. Aiello had driven was still there when her heart rate stopped being recorded by her Fitbit. Mr. Aiello was subsequently arrested on murder charges based in large part on the information from the victim’s Fitbit.

Originally designed to motivate wearers to take control of their fitness and health, fitness devices have become a high-tech tool that law enforcement utilizes to solve crimes. Attached to a person’s body, these devices have a unique front-row seat to their lives, inadvertently documenting both the intended and unintended data.

Fitbit location data has been used in a number of recent cases, from a sexual assault case in Pennsylvania in 2015 and a personal injury case in Canada in 2014. In 2017, a Garmin Vivosmart GPS recorded a woman’s struggle with an attacker in Seattle. The same year, investigators used data from the Fitbit of a Connecticut woman to charge her husband with murder. This year, investigators in Iowa, with the help of F.B.I. experts, sifted through data from the Fitbit of Mollie Tibbetts, a 20-year-old student who was missing for about a month before her body was discovered in August. Surveillance video led them to a 24-year-old man who was charged with murder.

And while these devices have been useful to solve crimes, they can also be misused by government agencies and private citizens to unlawfully spy on their users. A suspicious spouse or boyfriend can use their partner’s computer, smartphone or wearable fitness/heath device to surreptitiously gain unauthorized insight into the movements, contacts and conversations of another. Such unauthorized access is an invasion of privacy when done by an individual, and a violation of Fourth Amendment protections against unlawful search and seizure when done by government agencies. Just recently, the FBI unlocked a suspect’s smartphone using the owner’s image as it was set up for facial recognition rather than a numeric code. As smart devices proliferate and advance, law enforcement’s use of these devices as evidence will increase rapidly. We must at the same time guard against the misuse of the information that can be accessed and make sure that proper protocols and procedures are employed to lawfully access the highly private and detailed information contained on these devices.

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 rgs@sgdefenselaw.com. Or Contact us online.

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.

While most people consider themselves unlikely to become the subject of a police investigation, there is one common situation in which ordinary citizens fall under police scrutiny: the traffic stop. Police officers are trained to search for evidence of illegal activity every time they pull over a driver, whatever the reason for the stop. While the consequences for speeding, failure to maintain lane, careless driving or Driving Under the Influence (DUI) can be bad enough – carrying the possibility of loss of driving privileges, assessment of motor vehicle points and higher insurance rates – things become far more serious if the police search for and find illegal drugs in a car. Teenagers and young adults – who are presumed by police to be more likely to be in possession of illegal recreational drugs – are often the targets of such searches late at night, while driving to and from wherever it is that teenagers actually disappear to when they leave the house to “hang out with friends.”

Police are legally permitted to stop a car for a relatively insignificant driving infraction, such as excessive window tints or improperly colored headlights, then expand their inquiry if they find anything suspicious during the traffic stop. We often hear from our clients that the initial reason for a stop was simply a pretext to search the vehicle (based on the client’s interpretation of the police officer’s questions), and that the officer suspected there was going to be alcohol or marijuana in the vehicle because the car was being driven by a younger person late at night. In cases like this, the police officer often asks the driver and passengers directly whether they have drugs or alcohol in the car, or whether they have been drinking. Sometimes the officer claims that he can smell the odor of either burned or raw marijuana and asks whether the driver will give their permission to search the vehicle. In many cases, even though not legally obligated to do so, the person gives their permission, or “consent,” to search the car.

Sometimes, the driver consents to a search of the vehicle not knowing that a passenger was in possession of some type of illegal substance, only to find that the passenger coyly jettisoned the illegal substance from his pocket into the common area of the automobile. Then, depending on where the illegal substance is found, the police can charge everyone in the vehicle with possessing the drugs. If the drugs are found in a common area of the car accessible to more than one occupant, the police officer may use the fact of the discovery of the drugs to pressure the occupants into making an admission as to the ownership of the drugs. They may say, for example, that unless someone owns up to possessing the drugs, that everyone will be charged. This often results in the creation of a false confession, when one person, in the heat of the moment, attempts to save his or her friends or family from prosecution.

The penalties for possessing a “Controlled Dangerous Substance” (CDS) – i.e. illegal drugs – depend on the type and amount of the substance. For some drugs, the charges will be heard in municipal court, but possession of certain more dangerous drugs are prosecuted in Superior Court, whatever the amount in possession. In either case, a driver charged with possessing a CDS while operating a vehicle faces a two-year mandatory license suspension and criminal charges relating to the possession. Those criminal charges can result in fines, penalties, probation, and even jail. In addition, if the person charged with a CDS offense is a student, his or her school may take administrative action based upon the outcome of the case that could include suspension or expulsion.

It is critically important to immediately retain experienced criminal defense counsel in these types of cases. Defense counsel will obtain the discovery – any police reports, summonses, audio and video recordings of the stop and questioning, radio logs and lab reports of the drugs – to determine whether the initial stop was valid and whether there is a viable motion to suppress any drugs that were found in the car. The suppression may be based either on the invalidity of the initial stop or upon the warrantless search of the vehicle. Given the serious potential penalties, experienced criminal defense counsel may be able to suppress the search or negotiate a much less onerous outcome.

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.

President Trump tweeted that Michael Cohen, his former lawyer and “fixer”, won’t flip on him. Putting aside for the moment why the President would say this if Cohen didn’t have incriminating evidence against him – because one could only “flip” on someone if they did – let’s examine why people charged with crimes cooperate with law enforcement.

When someone is charged with a serious crime and the evidence is strong, rather than fighting the charge they may try to mitigate their exposure to a lengthy prison sentence by offering detailed information against their co-conspirators in an effort to win a downward departure motion at sentencing. In the federal system, where the U.S. Sentencing Guidelines often result in an advisory sentencing range of many years in prison – in addition to substantial fines, forfeiture and restitution – a defendant’s “substantial assistance” to the government against others often results in a substantially reduced sentence.

Substantial assistance means that the defendant provides detailed evidence against his co-conspirators in the scheme that can be corroborated by other evidence. Before being offered a cooperation agreement, the defendant is thoroughly debriefed by prosecutors and agents to determine whether he is being truthful and complete. The cooperator must provide useful information and potential testimony against others – what each co-conspirator did to advance the scheme – along with any physical evidence such as records, documents and the like, that substantiates what he says. The government usually wants a cooperating defendant to provide information about others that are just as culpable as him, or more so, meaning higher up in the criminal activity.

To cooperate or flip, the person must reveal all prior criminal activity he has been involved in over the course of his life, not just the current charged conduct. The reason for this is that the government must determine not only the person’s truthfulness, but also whether the person will be credible witness or be subject to potentially debilitating cross-examination based upon his prior offenses.

Given the potential for a lengthy sentence, and in the federal system there is no early release on parole that reduces the amount of time spent in prison as in many state systems, there is a strong incentive for defendants involved in complex, multi-defendant crimes to cooperate. Anyone involved in criminal conduct with someone who has been charged would be naïve at best to think that the person would never cooperate against them. Self-preservation and the hope of receiving no time or substantially less time is a very strong motivator, regardless of how close the defendant is to that person.

In Michael Cohen’s case, even if he decides to cooperate, the government must first decide whether his information is credible and valuable, whether it is against others that are worth offering Cohen a reduced sentence and whether and how much any of his prior potential criminal conduct will undermine his credibility. As for Cohen himself, he must decide whether any potential prior criminal conduct will expose him to additional charges and whether he has sufficient information and evidence to receive the benefit of that cooperation – no time in prison or a substantially reduced sentence.

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.

While most people would say that you should retain a criminal defense lawyer once you are charged with a state or federal crime, the answer is not that straightforward. In many instances, an individual or company will learn that there is an active, pending investigation into their activities. They might be contacted by law enforcement for an interview; they might be served with a grand jury subpoena for documents and/or testimony; they might learn that business associates and customers have been interviewed by law enforcement; they might receive a “target letter” from the U.S. Attorney’s Office; or they might be tipped off by their friendly banker that their financial records have been subpoenaed.

If any of these events occur, the person should immediately seek to retain experienced criminal defense counsel. At these “early” stages of an investigation, counsel often has the opportunity to present facts and arguments to law enforcement why the matter should not be considered criminal in an attempt to prevent charges from being filed. The attorney must first learn all the relevant, material facts of the matter being investigated from his client. The client must be completely candid and forthcoming when discussing the matter with the attorney so that the attorney can truly assess the situation. The attorney must then review the relevant statutes and case law to fashion his arguments supporting a non-criminal disposition or declination of charges. Lastly, experienced defense counsel must make a determination whether to present these facts and arguments to the investigators, or whether it would be better to hold off and defend the case once the nature of the offense and evidence against the client is known.

When a person discovers that she is the focus of a criminal investigation prior to charges being filed, or an indictment being presented, they have a unique opportunity to try to have their defense attorney convince the investigating agency that there is no sustainable basis to proceed. If successful, the attorney can save the client from the ruinous and costly effects of being arrested, the negative publicity attendant to such an event, and the time consuming and costly post-arrest defense.

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.

Much has been written and tweeted about this past week concerning this topic. Politics aside for the moment, what does the government need to demonstrate to a court that a place should be searched, or a person’s phone calls should be intercepted?

To search someone’s home or office, the government must show that there is probable cause to believe that evidence of a crime is presently at the location to be searched. Probable cause exists “where the facts and circumstances within the agents’ knowledge, and of which they had reasonably trustworthy information . . . are sufficient in themselves to warrant a man of reasonable caution in the belief that . . .” a crime has been or is being committed, and that seizable property can be found at the place or on the person to be searched. The probable cause must be timely and the place to be searched must be described with particularity. If information comes from an informant, his or her credibility must be established, either by reciting prior information that has proven to be reliable, or by independent verification of a number of the details provided by the informant.

In the case of a Title III intercept, commonly referred to as a wiretap, there are extra statutory factors that must be met before electronic surveillance will be authorized. Only certain enumerated crimes are subject to a wiretap as an investigatory tool. Most importantly, the affidavit must establish investigative need and that traditional methods of investigation have either failed, are likely not to succeed, or are too dangerous.

What if the affidavit provided to the court for the warrant contains false information? Does that mean the warrant should never have been issued, or that the evidence gathered should be suppressed? Generally, a warrant issued by a judge is presumed valid. In challenging a warrant, the person must demonstrate that (1) the affidavit contained a materially false statement; (2) the false statement was made knowingly and intentionally, or with reckless disregard for the truth; and (3) the allegedly false statement is necessary to the finding of probable cause. If these three points are demonstrated, then a Franks hearing must be held.

The key point is that the warrant will survive, and the evidence gathered admitted in court, if there is sufficient probable cause remaining once the alleged false statement(s) are removed from the affidavit. Generally, even if a warrant was issued with a materially false statement, that was known to be false when made, the evidence will not be suppressed unless the judge would not have issued the warrant if those statements were not included in the application.

Pertinent to recent press reports and the 24-hour cable news cycle, when a Title III warrant has been issued, it is only valid for a specified period of time. After which, the agent must apply for an extension(s). In that application, the agent must demonstrate to the court that material evidence of the crimes being investigated have been intercepted and that the continued authorized interception will likely yield additional evidence. Thus, any renewals will necessarily mean that evidence of the specified crimes have been electronically gathered and that continued electronic interceptions will likely yield additional material intercepts.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes.Founder Robert G. Stahlis 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 908.301.9001for our NJ office and 212.755.3300for our NYC office, or email us at rgs@sgdefenselaw.com.

Facing serious criminal charges, or being told that you are a subject or target of a criminal investigation, can be extremely stressful and unnerving. It is common to feel overwhelmed and uncertain what to ask in your consultation with a criminal defense attorney. Below are some of the major questions a prospective client should ask the attorney.

First:

An experienced criminal defense attorney should be able to talk, at least generally, about the strengths and weaknesses of the case. He or she should be able to identify the relevant issues, strategies going forward and potential defenses. If the case is new, then the attorney can only give general insights because the prosecution has not yet provided any discovery – police reports, statements by witnesses or the client, tape recordings, photographs, etc. – that more fully detail the government’s case. But, the attorney should be able to explain how these types of cases are investigated and prosecuted, and be able to offer insights as to the work that lies ahead. Be aware, however, that the attorney has no credible way of predicting the outcome of your matter at this early stage.

Second:

How long will it take to resolve the case?

Experienced criminal defense counsel can inform you, based upon their years of prior experience, how long a case like yours usually takes, and what you can expect along the way. While each investigation and case are different, the attorney can give you a good idea of how long and what to expect for cases in the federal system or in each state or county that they practice.

Third:

How much will it cost to defend your matter?

Most criminal cases are handled on a flat fee basis for certain portions of the case. A client needs to know that she can afford the representation and the attorney needs to know that the client has the resources to properly defend the case. In certain instances, particularly when the matter is still in the investigative stage and charges have not yet been brought, the representation will start on an hourly fee basis until the attorney has a better understanding of the scope and complexity of the case.

Fourth:

What experience does the defense attorney have in the type of case brought against the client?

Experience with both the type of case, and the prosecuting agency, is often critical to success. The more experience the attorney has usually results in better insights into the case, its defense and the type of resolutions that are realistic with the particular prosecuting agency.

Fifth:

Who else will be working on your case, and does the firm have the time to handle your matter?

These are important issues that the potential client should inquire about. The experience of the other lawyers in the firm, as well as their caseload, is critical to the quality of representation. Firms that handle a large volume of cases, with a minimal staff, may not have the time and attention to detail the client’s matter requires.

Cautionary Note:

These questions provide a good framework for the client to make an educated and informed decision about counsel. There are also the intangible areas of comfort and trust in the person. But do not be lulled by boastful promises or talk of the attorney’s confidence that the case will be dismissed, or that charges will never be brought. Experienced and ethical counsel will reserve their opinions about the outcome until they have the relevant facts and can fully examine the evidence and the case law. Good defense counsel will tell you what you need to know, rather than what you want to hear for comfort.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes.Founder Robert G. Stahlis 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 908.301.9001for our NJ office and 212.755.3300for our NYC office, or email us at rgs@sgdefenselaw.com.

Just the other day, “Bridgegate” cooperator and former Port Authority of New York and New Jersey official David Wildstein, was sentenced in federal court to probation. The two defendants that he cooperated against were sentenced to 24 months and 19 months in federal prison. Despite the fact that Wildstein pled guilty to two counts of conspiracy for his role in the offense, and faced several years in prison, the sentencing judge granted the government’s downward departure motion for a much more lenient sentence – in this case probation.

In the federal system cooperators, those conspirators who assist the government by providing truthful information, assistance and testimony to the government, are rewarded at sentencing with a motion filed under section 5K1.1 of the United States Sentencing Guidelines that permits the court to depart below the advisory guideline range specified for the particular offense and its enhancements.

There are several types of cooperation that may merit these types of sentence reductions. For example, if a person is confronted by the FBI while the investigation is still pending and is interviewed about their alleged participation in an ongoing crime, she may decide to cooperate with the FBI. This cooperation could include giving truthful information about her activities and those of her co-coconspirators, and to proactively work with the agents by recording phone calls and meetings with the others involved under the direction of the FBI. In instances where conspirators have already been arrested and charged, a person could agree to cooperate with the prosecution by providing evidence and testimony against the others charged.

In either scenario, it is critical that the person has an experienced federal criminal defense attorney representing them to fully protect their rights and to make sure that they obtain the best possible result. The attorney must evaluate the client’s potential cooperation and determine whether it is of the kind and nature that would meet the threshold for such a downward departure motion. Experienced defense counsel must also prepare his client for the proffer with the government to make sure the client will make the best possible presentation and truthfully and accurately convey the information.

If the government decides that the person has provided “substantial assistance to the United States,” then the prosecutor will file a formal motion at the time of sentencing for the court to depart below the advisory Guideline range. The letter-motion will also include the details of the person’s cooperation and how significant it was to the prosecution. Experienced defense counsel will also submit a lengthy sentencing brief, along with relevant letters from family and friends, explaining why the client should receive the maximum benefit – largest downward departure – for the cooperation.

While a cooperation agreement is not possible in all cases, or even appropriate in many instances, in the right case it does provide an alternative to trial or simply pleading guilty to the lowest possible offense and exposure. Only experienced federal criminal defense counsel can properly evaluate the client’s case, information and potential for cooperation.

Contact NJ & NY Criminal Defense Attorneys

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.

Every day we are bombarded with news about the ever-expanding investigation into the President and the alleged Russian connection to his staff. The news media has been filled with headlines and postings about people who are labeled a “person of interest,” a “subject,” a “target” or a “witness”. Do these terms have specific meanings to federal law enforcement? Yes and no. In the federal system, the term “person of interest” is not officially used. It’s use became widespread by some in law enforcement and the media back in 1996 during the Olympic Park bombing in Atlanta when it was announced that a security guard was a person of interest in the bombing. It euphemistically means that someone has suspicions about the person but not sufficient evidence. There are, however, very specific Department of Justice definitions for a target, subject or witness of an investigation.

A target is someone that the government has substantial evidence linking him or her to criminal activity and is close to presenting that evidence to a grand jury for potential charges (or a judge for an arrest warrant on a complaint). In criminal cases, the U.S. Attorney’s Office may send a person what is known as a “Target Letter”. The letter simply states that the person is a target of a federal criminal investigation and urges the target to obtain counsel and to meet with the prosecutors and agents on the investigation. A target of an investigation absolutely needs experienced criminal defense counsel representing her.

The technical definition of a subject is: a person whose conduct is within the scope of the grand jury’s investigation. A subject of an investigation is someone that the prosecutor and agents believe to be involved in criminal activity but do not yet have substantial evidence against. Often, law enforcement wants to interview a subject of an investigation, either informally or before the grand jury, in an effort to obtain sufficient evidence against the person. Being the subject of an investigation is a more nebulous category, and one that requires the advice and representation of experienced criminal defense counsel. Both targets and subjects have a right to assert the Fifth Amendment right to remain silent and refuse to testify without a grant of immunity.

The reason a subject of an investigation should immediately consult experienced counsel is that agents often attempt to interview the person while serving a grand jury subpoena to appear and testify and/or produce documents. The agents will typically be polite and friendly, offering to talk about the matter with the person to gather facts about their investigation. They often go to the person’s home or office early in the morning or later in the evening in an attempt to catch the person off-guard. Often the person talks because they don’t want the agents to think that they have anything to hide or that they are involved in any way. Since the person is not “in custody,” the agents do not have to warn the person of their right to remain silent and to consult an attorney if they desire.

A witness is someone that the government has no reason to believe has any criminal exposure and simply has relevant information about an ongoing investigation. A witness usually provides a statement either during a field interview or at the U.S. Attorney’s Office. A witness may also be called to testify before the grand jury. It is often advisable for a witness to be represented by counsel as well. A witness can be charged with lying before the grand jury or to a federal agent.

Contact NJ & NY Criminal Defense Attorneys

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.

Violent police encounters and police officer involved shootings have dominated the national press for some time. Such encounters have led to mass protests; much-needed examinations of police policies, procedures and training; and pleas for better relations between the police and the communities they serve. One result has been the call for body worn video cameras that record encounters between police and citizens in real time. While not perfect, these body worn cameras can provide valuable evidence of what transpired at a given moment during what may have been a high stress encounter.

Such technology has been on display for many years. We have all witnessed the value-added, positive results in professional sports of the instant replay. When a referee’s call is disputed, within a matter of seconds multiple camera angles can be reviewed to determine whether the eyewitness – the official – made the correct call. Whether it’s a first down or a penalty in football or a 118 mph serve in tennis, today’s cameras with multiple angles and slow motion reduce human error. The instant replay provides a more accurate review of a fast-paced situation on the field.

Advances in police work have allowed similar reviews. For more than a decade, many police departments have video cameras mounted in their patrol cars that record motor vehicle stops, car chases and DWI field balance tests at the side of the road. Time and again these videos have proven their worth in confirming the report and testimony of the officer, or refuting it. In many cases, the video and audio recordings have been the “best evidence” of what actually transpired. These car-mounted cameras, however, can only record a limited field of view from a car and only when the officer positions the car stop or encounter with the person in the camera’s view.

Since many more police encounters occur beyond a car stop and the range of car mounted video cameras, the importance of body cameras has become self-evident. Technology has advanced so that cost-effective, light weight, portable and reliable body cameras can be worn by the average police officer. These cameras have the ability to record both video and audio of an encounter as in happens. Thus, the movements, actions and words of the officer, the person being questioned and the surrounding crowd can be memorialized for later review by both the defense attorney and the prosecutor. The National Association of Criminal Defense lawyers (NACDL), a highly- respected organization, recently released results of its Body Camera Task Force. The review examined the use of body worn cameras over a two-year period. The review resulted in a number of recommendations to enhance the accountability, transparency and evidentiary availability for use in court cases. Standardization of policies and procedures for the use of body worn cameras will enhance their reliability and potential use in reviewing many encounters. And while body worn cameras will not be dispositive in every case, as they can only capture certain angles and moments in time, they will certainly add valuable information to independent views of unfolding, stressful encounters between the police and civilians. Systematic use of these cameras will help insure the safety of both the police and the public. When both sides are aware that they are being recorded, actions may be tempered and behavior may be more civil. A number of studies have demonstrated that when body cameras are worn the number of complaints against the police have dramatically reduced and the use of force has substantially decreased.

Opposition to body worn cameras by some members of law enforcement is seemingly a combination of issues of privacy, not wanting every encounter to be scrutinized by supervisors and citizen complaint boards, and a general reluctance to change. Hopefully reason will prevail and body worn cameras will be viewed by all as another advancement for the safety and protection of the public and police.

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.

Between the President’s accusation that the prior President tapped his phones, and WikiLeaks recent exposure of alleged CIA hacking tools and techniques, much has been reported in recent days about the government’s ability to intercept and listen to our conversations over our cellphones; computers; smart home devices such as televisions and baby monitors; products such as Alexa and Amazon Echo; encrypted messaging apps such as Signal, WhatsApp and Telegram; and home security cameras and systems. All of these devices provide potential ways for the government and hackers to enter our seemingly private worlds and eavesdrop. The difference between the government and a hacker, however, is that the government must obtain a court authorized warrant to do so.

Federal and state law enforcement investigating many types of criminal activities can apply for a court authorized warrant to intercept calls, text messages, emails and other forms of communications if they demonstrate that there is probable cause to believe that the person is committing the specified unlawful activity and using the specified type of communication device in furtherance of the criminal activity. In addition, law enforcement must demonstrate to the judge that normal investigative techniques have either failed, or would likely fail, to uncover the full scope and extent of the activity or coconspirators. These normal investigative techniques include, interviews, subpoenas, search warrants, undercover investigations and the use of informants.

In most cases of foreign espionage, terrorism and foreign agents, law enforcement must obtain a court order through a FISA application to a FISC court (Foreign Intelligence Surveillance Act authorized Foreign Intelligence Surveillance Court) to intercept communications. The application again requires probable cause that the target of the intercept or surveillance is a foreign power or agent committing certain offenses.

Hackers, however, require nothing more than the skill and access to these common household devices. Routers, security cameras, baby monitors and the like are all known as IoTs – Internet of Things. These products are vulnerable to compromise by malware because of poor factory administrator security settings that are easily hacked. Thus, your family’s security camera can be hacked and used to spy on private activities within your home. Similarly, the camera on your laptop for Skype calls and video conferencing can be hacked to spy on you. While this is certainly a frightening invasion of privacy, and highly illegal, there are many readily available articles by experts that offer detailed instructions on how to change the factory settings on these devices to make it much harder for hackers to get through.

Authorized law enforcement interceptions compel the provider of the service to cooperate and assist law enforcement in effectuating the intercepts and prohibit the provider from revealing the interceptions to its customer. While there are strict compliance standards set by law and reporting requirements at specified intervals to the court, these interceptions not only capture alleged communications about criminal activities, but many times capture innocent conversations, texts, emails and the like between unsuspecting third parties and the targets themselves. It is a very intrusive type of investigative technique that must be used sparingly and adhere to strict guidelines.

The evidence gathered from such interceptions may provide powerful evidence against the accused. However, in many cases those communications are claimed by law enforcement to involve “coded language” that requires “interpretation” by an expert, usually another agent or detective claiming to have specialized training and experience, to inform the jury what the targets “really meant.” Thorough examination of those conversations, experience and vigilance is required by the accused’s attorney to ensure that the supposed expert witness is not misinterpreting the meaning of the conversation and providing unreliable and misleading testimony to the jury. Experienced criminal defense counsel can also attack the basis for the warrant to intercept the communications and the procedures followed during and after the period of interception in an effort to suppress any evidence gathered through the interceptions.

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 rstahl@stahlesq.com.