In an internationally watched case, the Pennsylvania Supreme Court overturned Bill Cosby’s conviction finding that he had been improperly prosecuted after relying on what he believed was a promise of immunity from then District Attorney Bruce Castor which caused Cosby to testify in a civil case brought by one of his victims and make various statements against interest that were later admitted in his criminal trial.

In 2015 Cosby was charged with sexually assaulting a former Temple University basketball coach, Andrea Constand more than 10 years prior. Ms. Constand had also filed a civil lawsuit against Cosby over the assault. Then D.A. Castor, who later went on to some notoriety for briefly representing former President Donald Trump, issued a public statement that he would not file criminal charges because he had concluded that a criminal conviction was highly unlikely. The majority of the Pennsylvania Supreme Court found that Castor’s statement was designed to coerce Cosby to testify about the assault in the civil suit. Had Castor not made this statement, the Court reasoned that Cosby would have asserted his Fifth Amendment right not to testify in the civil deposition, rather than testifying and incriminating himself. Since Castor’s successor at the D.A.’s Office later charged Cosby, and the prosecutors used Cosby’s civil deposition testimony at trial, the Court found that Cosby’s rights had been violated.

Interestingly, the Court found that while the record supported a finding that no formal non-prosecution agreement existed and that Castor had been equivocal about any future prosecution, the Justices reasoned that the real issue was the extent to which Cosby relied on what he believed was a promise by the D.A. Holding that this was an issue of fundamental fairness and a violation of due process, the Court overturned the conviction and barred future prosecution on the Constand assault.

While concurring that Cosby’s due process rights were violated, Justice Dougherty said that the remedy should have been simply barring the deposition evidence from the criminal trial. Justice Dougherty stated “we should not use Castor’s ‘blunder’ to place Cosby in a better position that he otherwise would have been in by forever barring his prosecution.” Dissenting Justices disputed that Castor’s public statement created a binding promise that Cosby could have relied on in deciding to testify in the civil deposition.

While there is understandable outrage that Cosby’s conviction was overturned, particularly because so many victims came forward to bravely testify that he drugged and sexually assaulted them, and the fact that some of Cosby’s defenders now claim that he was a victim and has been fully exonerated, issues of due process and fundamental fairness are at the core of our system of justice. When those are violated, the remedy in a particular case may be harsh, but the Constitution and law are more important than one individual or one case. The Pennsylvania Supreme Court did not find that Cosby was not guilty, and those supporters who claim that he was simply refuse to listen to and credit the overwhelming evidence presented at trial against him.

Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

In its June 3rd decision, the Supreme Court greatly narrowed the scope of the federal Computer Fraud and Abuse Act (CFAA). The CFAA, the main federal anti-hacking law, prohibits outside actors from illegally accessing – breaking into – government or private computer networks. In addition, it is routinely used to charge authorized users of a computer network who exceed the scope of their access, those who “access a computer with authorization and use such access to obtain or alter information in the computer that the accessor is not entitled to obtain or alter.” Such instances include employees taking corporate secrets, customer lists, source codes and the like.

The case, Van Buren v. United States, involved a local police officer who accepted money from a third party for him to access the police database to check on whether an individual was an undercover officer. Thus, the officer exceeded the authorized use of the government database. In its 6-3 decision, the majority of the Court held that the CFAA’s language was too broad in scope, that it would “attach criminal penalties to a breathtaking amount of commonplace computer activity.” The majority sided with the defense’s argument that the CFAA’s broad language allows prosecutors, and private entities seeking civil remedies under the law, to pursue claims based on activities as minor as an employee breaching company policy by sending a personal email on a work computer or researchers who exceed the scope of a website’s terms of service.

The CFAA was enacted in 1984, and amended in 1986, at the infancy of the internet. It has since been used by corporate employers and the federal government to charge insiders with exceeding the scope of their authorized access or use. Since its enactment, the internet and use of computer networks have greatly expanded and access issues have become much more sophisticated and complex. The ill-defined, broad language in the statute was likely due to the nascent use of computers in 1984. The Court’s decision will likely result in Congress rewriting the statute to clarify its scope and reflect today’s computer usage. In the meantime, corporations will likely tighten their employment rules regarding access and privileged data, and the government will look to use other statutes in these types of cases.

Stahl Gasiorowski Criminal Defense is here for all of your criminal legal needs during this time. To contact the firm’s NJ office, call 908.301.9001 and to contact the firm’s NYC office, call 212.755.3300, or email Mr. Stahl at rstahl@stahlesq.com.

Last week’s decision in Carpenter v. United States, a 5-4 decision that the government must obtain a court-authorized warrant for cell site location information (CSLI), is a small step toward recognizing privacy rights in an age of ever-expanding technology. Most people do not realize that their cell phones are capable of tracking their every movement – 24 hours a day, 7 days a week. As we move about, our cell phones ping off of the nearest cell tower. Several times a minute our cell phones contact the nearest cell tower. Our cell providers collect and store that information. Examining that information can reveal a person’s daily movements with a fair degree of accuracy, usually within hundreds of feet to a few miles. Each tower has time-stamped records for every cell phone that pinged off of it, and more specifically, which direction on the tower’s multiple receivers.

Until Carpenter, law enforcement merely needed an order showing reasonable grounds to believe that the records were “relevant and material to an ongoing criminal investigation.” This is a significantly lower standard than what is needed for a court-authorized warrant requiring probable cause. In 2016, Verizon and AT&T had received more than 125,000 requests from law enforcement for CSLI to track citizens’ whereabouts without a warrant.

In its recent decision, the Supreme Court reasoned that the Fourth Amendment – the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . ” – extends to the unintentional providing of cell site information to a third party carrier. The majority held that protecting privacy from new digital technologies is in accord with the founding fathers’ central aim to impede surveillance that is “too permeating”.

Given that there are some 396 million cell phone accounts in the United States, and that most people carry their phones everywhere they go, such protections become of vital importance to us all. Surveillance techniques are ever expanding. Law enforcement has an arsenal of surveillance tools that have the potential to invade our everyday lives and privacy. Cell phone tracking, GPS trackers on vehicles, license plate readers on police cars, wearable devices such as FitBit, traffic cameras, gunshot detectors, stingray devices and the like all grant an enormous amount of information into our lives that only a few years ago were the stuff of science fiction. Our constitutional safeguards must keep pace with the ever-expanding technology and surveillance.

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.

The police stop you for an alleged driving infraction – speeding, failure to stay in lane, tinted windows – and while talking with you the officer smells the odor of marijuana. The officer asks you to step out of the car, searches the car and finds drugs. You contact a criminal defense attorney to defend you and explore the possibility of a motion to suppress the search. 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 the search. However, if you are a passenger of the vehicle, or the driver of a rental car that was rented by a friend or family member and you are not listed on the rental agreement, you may lack standing to challenge the search of the vehicle.

How can this be? How can someone driving a car who is subject to a search by law enforcement not have the legal authority to challenge the search? Well, this precise issue has just been heard by the United States Supreme Court in the Byrd case. The case began in 2014 when Terrence Byrd was stopped by a Pennsylvania State Trooper. When the Trooper learned that Byrd’s fiancée rented the car and that Byrd was not listed on the rental agreement, the Trooper searched the car and found heroin. The Trooper had no probable cause to search the car. Rather, he asserted that he did not need Byrd’s consent for the search because he was an unauthorized driver. Typical rental agreements only authorize the renter’s spouse, or someone who appeared at the time of the rental and signed as an additional driver, to operate the vehicle. Mr. Byrd and his fiancée had been together for 17 years and had 5 children together, but were not married. The trial court refused to suppress the search and Byrd was sentenced to 10 years in prison.

Hearing oral argument the other week, the Supreme Court seemed inclined to hold that people not listed as authorized drivers on rental agreements still have privacy rights when stopped by police. Justice Sonia Sotomayor said it would give the police too much power, specifically stating “If we rule that someone without permission has no expectation of privacy even when the renter has given it to them . . . then what we’re authorizing is the police to stop every rental car and search every rental car, without probable cause, that might be on the road.” Several other justices suggested that failing to list an additional driver was a mere breach of contract that does not overcome the protections of the Fourth Amendment, which bars unreasonable searches.

This is a complicated and unsettled area of the law until the Supreme Court decides the issue. While it may make no sense to the average layperson, the law requires a person to have a reasonable expectation of privacy in order to be afforded Fourth Amendment protection from unreasonable search and seizure. An unauthorized driver of a rental car, a passenger in a friend’s car or a guest at a friend’s house may not be able to challenge the validity of a search even when that person is charged with a crime related to the items discovered in that search.

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 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

Police generally cannot enter a home without a search warrant. When certain circumstances are present, however, there are recognized exceptions to warrant requirement. One such exception is consent; a resident may invite the police into his or her home without requiring the police to obtain a warrant. Another exception is the “protective sweep”; the police may enter a home to conduct a quick search for potentially dangerous persons if they are already lawfully within a residence and they develop a reasonable suspicion that that there is an individual in the residence that poses a danger. If during a lawful protective sweep the police find in plain view something that is clearly contraband, such as illegal drugs, the police may lawfully seize the contraband and prosecute the possessor.

In Bryant, officers responded to a home from which a 911 call was placed by a woman who alleged that her boyfriend had struck her. While two officers spoke to a woman who was outside the home, crying inside a car in the driveway, two other officers knocked on the door to the house. When a man answered, the officers instructed him to take a seat on the couch inside. One of the officers questioned the man while the other conducted a protective sweep of the house. The officers did not get any information about the domestic violence incident from either the woman or the man prior to conducting the sweep. During the protective sweep, the officer found marijuana and a firearm.

The Supreme Court ruled that the marijuana and the firearm must be suppressed because the evidence was uncovered during an illegal warrantless search of the home. The protective sweep was improper because the police conducted it without developing any facts that would suggest there might be another person inside the house who possesses a danger. In essence, the Bryant decision stands for the proposition that a 911 call alleging domestic violence within a home, without more, does not give the police reasonable suspicion to conduct a protective sweep of the home where the incident took place.

In the other case, In re Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., decided on June 30, 2016, the Supreme Court ordered the permanent confiscation of a police officer’s firearms and firearms purchaser identification card, even after the underlying criminal and civil domestic violence complaints against the police officer had been dismissed.

Under New Jersey law, police responding to a domestic violence incident are entitled to seize any weapon on the premises that would expose the victim to a risk of serious bodily injury. If the defendant is charged with a crime of domestic violence or becomes subject to a domestic violence restraining order, the police must seize any weapons registered to or owned by the defendant. The State may then seek forfeiture of the weapons and the defendant’s firearms purchaser identification card in the family court. The forfeiture may be predicated upon any one of several reasons, including the defendant’s mental unfitness to possess weapons, or that the defendant became legally unable to possess certain weapons due to the issuance of a final restraining order or conviction of a crime. The State may also seek permanent confiscation of weapons and firearms purchaser identification cards if it can demonstrate to the family court that the defendant’s possession of weapons poses a continued threat to the victim. This is true even where the criminal charges and restraining order are ultimately dismissed or dropped by the victim.

In In re Weapons of F.M., a police officer responding to a domestic violence call observed F.M., who was himself a police officer, throw his estranged wife into a stone retaining wall. F.M. was charged with simple assault and the wife sought a restraining order. F.M. claimed that he was merely attempting to remove his wife from holding onto his car to prevent his court-ordered visitation with his children. Ultimately, the restraining order was dismissed by the family court judge, and the municipal court dismissed F.M.’s assault charge after the defendant agreed to attend court-ordered counseling.

The State nevertheless proceeded with a motion to forfeit F.M.’s weapons and firearms purchaser identification card based upon his history of domestic violence, arguing that the return of his weapons would not be in the interest of public safety. A great deal of evidence was presented to the family court, including contradictory testimony from F.M. and his wife, as well as the testimony of mental health experts, presented by the State, who concluded that F.M. suffered from narcissistic and anti-social tendencies. The family court rejected the State’s arguments and returned F.M.’s weapons and firearms purchaser identification card.

The Supreme Court reversed the family court’s decision, as well as an Appellate Division decision upholding the family court. The significance of In re Weapons of F.M. is that the Supreme Court, which is ordinarily expected to defer to the factual and credibility determinations of the family court in gun forfeiture cases, took the extraordinary step of concluding that the family court’s decision to rearm the defendant was “manifestly unsupported” by competent evidence.

The Supreme Court’s decision, in essence, was that the family court dismissed the State’s claim without addressing certain critical evidence that should have been addressed on the record, and for improperly discounting the unrefuted expert testimony. The Supreme Court’s decision is long, complex, and very fact-dependent, but the decision signals the Court’s insistence that rearming decisions be made with care, even if the underlying criminal charges and/or restraining orders are dismissed by other courts. It also suggests that if the State relies on expert testimony in support of its motion to forfeit a defendant’s weapon, a defendant would be well-served to obtain his or her own expert to refute the State’s evidence, because the Court found it significant that the State’s expert evidence was never refuted by the defendant.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with domestic violence and criminal charges. Andrew Olesnycky, Esq.has served as the head of the Union County Prosecutor’s Office’s Domestic Violence Unit, and the domestic violence supervisor. He represents those accused of domestic violence in criminal, civil, and administrative proceedings, as well as victims of domestic violence seeking restraining orders in family court. Mr. Olesnycky’s cases have been widely covered in the news, including the New York Times, CBS This Morning, NBC4 New York, the Associated Press, the Boston Globe, NJ.com, the Star Ledger, and ESPN. 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 aolesnycky@stahlesq.com.