“third-party intervention” exception or “private search” doctrine

State v. Wright, Appellate Division A-4813-10T1

“third-party intervention” exception or “private search” doctrine

Criminal case summary provided by New Jersey Criminal Lawyer, Jeffrey Hark

 

July 25, 2013, the Appellate Division affirmed the conviction of a defendant based on evidence obtained under the “third-party intervention” doctrine where police can search a defendant’s property without a warrant, as long as they are within the scope of the private actor’s intrusion. On March 30, 2009, the defendant’s girlfriend had given the landlord permission to enter the property to repair a leaky pipe causing damage in the kitchen and master bedroom. The landlord saw drugs in the bedroom and immediately called the police. Police arrived at the property and observed the leak and the drugs without seizing or searching anything. The tenant, the defendant’s girlfriend, was contacted while police were posted at the bedroom and entrance to the property to preserve evidence. When the girlfriend arrived, she was read her Miranda rights and consented to a search of the property. Police found marijuana, cocaine, a scale, sandwich bags, baking soda, a Pyrex plate with powder residue, a handgun in a backpack, hollow point round and a bag of one hundred bullets. At trial the defendant’s girlfriend denied giving the landlord permission to enter and stated she only consented to a police search because she was scared they would call DYFS.

At trial the judge did not find the defendant’s girlfriend to be a credible witness and that she was attempting to exculpate the defendant who fathered their child and controls her in a domineering relationship. The landlord had a right to be on the property and when the police entered the property they were within the “third-party intervention” exception to the Fourth Amendment’s warrant requirement. Based on the credibility findings at trial, the record shows no violation of the tenant’s privacy rights. The significant fact the court points to in application of the “third-party intervention” exception is that the police did not go beyond the physical scope of the landlord’s entry until they had the tenant’s consent. Therefore the Appellate Division agreed with the trial judge that the warrantless police search was constitutionally valid and affirmed the defendant’s conviction.

In upholding the conviction, the Appellate Division emphasizes the Fourth Amendment is protection from the government, not searches by private citizens. Hence the “third-party intervention” being synonymous with the “private search” doctrine. In Walter v. United States, 447 U.S., 649 (1980), the U.S. Supreme Court found no Fourth Amendment violation by the FBI’s receipt of films from a private party. When a private citizen, such as a landlord, searches a property he is motivated by reasons other than securing a criminal conviction. When that private individual is not acting in an illegal manner and his conduct is a reasonably foreseeable intrusion of privacy that conduct will not be a violation of the Fourth Amendment, therefore information resulting from that conduct in not in violation of the Fourth Amendment. Information obtained from the “private search” can be transmitted to police; however police are limited to only the initial discovery by the private party. Additional discovery by police beyond the private individual’s initial discovery requires the police have a warrant or consent.

Summary - 14-2-0509 State v. Marcano, App. Div. Docket No. A-1021-12T3

Summary of the prescription drug case involving professional license defense.

 

In the recent July 2, 2013 decision in State v. Marcano by the New Jersey Appellate Division, the Court reversed the trial court’s decision to exclude testimony by a key witness against the defendant, Frances Marcano. On October 26, 2010, Dr. Tadeusz Majchrazak reported to Jersey City Police that Marcano presented a pharmacy with a prescription for Percocet on Majchrazak’s prescription script that Dr. Majchrazak did not prescribe to the defendant. A few days before the forged script was presented to the pharmacy, the defendant had requested Dr. Majchrazak to prescribe Percocet and Dr. Majchrazak refused since the defendant was seeing a pain management specialist for pain.

Statute N.J.A.C. 13:45A-27.(d) required Dr. Majchrazak to report the forgery to the authorities, however the defendant argued that the conversations days before the forgery with Dr. Majchrazak were privilege and filed a motion in limine. The trial court granted the defendant’s motion in limine to limit Dr. Majchrazak from testifying to the conversations days before the forged script was presented to the pharmacy. The trial court found that public policy wanted to protect the doctor-patient privilege to keep lines of communication open and prevent a possible chilling effect if the doctor was to report prior conversations with the defendant regarding the medication. The trial court was not satisfied the defendant’s prior conversations with the doctor were “in furtherance of a criminal purpose.” People v. Sinski, 669 N.E. 2d 809 (N.Y. 1996).

The Appellate Court reversed, finding that the physician-patient privilege does not bar defendant's doctor from testifying regarding defendant's efforts to obtain a prescription for Percocet during an office visit. Privileges are statutory creations that advance a societal interest, but are narrowly construed. State v. Schreiber, 122 N.J. 579, 582 (1991). When the privilege is faced against other competing rights, the Court finds “the privilege yields.” State v. Marcano, (App. Div. 2013). The Court’s interpretation of N.J.S.A. 2C:35-17 is that information communicated to a practitioner to unlawfully procure administration of a controlled dangerous substance shall not be a privileged communication. The trial court believed Marcano’s efforts to have his doctor prescribe Percocet was not unlawful; only Marcano’s efforts when he presented a forged script were unlawful. The Appellate Court decided that Marcano’s efforts to have the doctor to prescribe Percocet were unlawful therefore lowering the standard that bars a conversation under physician-patient privilege.

 

Prescription drug case summarized by New Jersey Drug Lawyer, Jeffrey Hark.

 

 

New Jersey Overdose Prevention Act

Read about the recently passed Overdoes Protection Act and how it may impact you if you have recently been charged with a drug crime in New Jersey.

Posted by New Jersey Drug Lawyer, Jeffrey Hark

Drug Evidence found in the Warrantless Search

State v. Walker, A-49-11.

Posted by drig crime defense pawyer, Jeffrey Hark. http://www.harklawnj.com/

Smoking pot while answering one's front door, then tossing the evidence when seeing it's the police, creates probable cause to search under the plain-view and exigent-circumstances doctrines, the state Supreme Court says. The justices reversed an Appellate Division ruling that suppressed drug evidence found in the warrantless search in State v. Walker, A-49-11.

They stressed it was the defendant's own guilty behavior that gave the police authority.
"We do not suggest that, had no one come to the door, the mere smell of marijuana would have justified a forced entry into defendant's home," the court said.

Two Newark policemen came to Rashad Walker's Riverview Court apartment, part of a public housing complex, on a tip from a confidential informant that he was selling drugs. They could smell marijuana smoke. One officer was dressed in plain clothes in order to attempt to make a purchase. When Walker opened the door and saw the second officer's badge, he threw the joint into his living room and attempted to shut the door. The officers gained entry. In plain view, they found 22.4 grams of marijuana, 27 packets of heroin, 4.2 grams of cocaine, a scale and a razor.

After Essex County Superior Court Judge Stephen Bernstein denied his motion to suppress, Walker pleaded guilty to multiple drug offenses but preserved his right to appeal the motion denial. The Appellate Division reversed.At the Supreme Court, the state relied heavily on the reliability of the informant, who had provided valuable tips on at least 10 prior occasions.

The court said that was not enough to justify a warrantless search, but Walker's actions were.
"Although the information contained in the tip was uncorroborated, by the time the officers knocked at the door of defendant's apartment, subsequent events, created by defendant's own actions, established probable cause and exigent circumstances which justified an entry into defendant's apartment," wrote Judge Ariel Rodriguez for the court.

"Clearly, defendant must have been aware that the officers knew he was committing an offense," Rodriguez said. And once he threw the joint back into the living room and tried to shut the door, the officers "were compelled to act to prevent defendant from disposing of the marijuana cigarette, or eluding the officers."

Judge Mary Catherine Cuff did not participate in the otherwise unanimous decision.
Assistant Deputy Public Defender Amira Scurato, Walker's attorney on the appeal, says the ruling, being limited to its facts, "doesn't change the overall landscape regarding privacy in one's own house," she says.

Officials from the Division of Criminal Justice did not return a reporter's call

Drug Issues Case NJ Supreme court

State v. Earls 420 N.J. Super. 583 (App Div. 2011)

Posted by: New Jersey Criminal Lawyer, Jeffery Hark

Relevant Facts:

The defendant was suspected of committing numerous residential burglaries. Officers obtained an arrest warrant for the defendant and couldn’t locate him. Thus, the police contacted T–Mobile, which was defendant's cell phone carrier. T–Mobile was able to determine defendant's general location at any given time because every seven seconds, a cell phone scans for the strongest signal, which is usually from the nearest tower, and then registers with that tower by sending in a signal to identify itself. Officers contact T-Mobile to get defendant’s exact location. After the third contact with T-Mobile, officers located defendant's car in a motel parking lot and subsequently arrested the defendant.

The trial court determined during a suppression hearing:

That a person generally would have a constitutionally protected privacy interest in preventing his cell phone provider from disclosing the general area where he is located, but that the police inquiries to T–Mobile concerning defendant's whereabouts were justified under the emergency aid exception to the warrant requirement because the police had an objectively reasonable basis for believing defendant planned to cause physical harm to Gates. Therefore, the court concluded that the police “lawfully obtained” information about defendant's presence in the general area of the motel and thus lawfully entered defendant's motel room to arrest him.

The Defendant on appeal argued:

That the monitoring of defendant's cell phone location was not justified under the emergency aid exception to the warrant requirement, and the police used information obtained from T–Mobile concerning the location of his cell phone to assist in determining where he could be found, the evidence found in the motel room must be suppressed as a fruit of the illegal search of his cell phone information.

The Appellate Division discussed two United States Supreme Court cases that specifically found that the use of beepers and other electronic tracking device used to track defendants did not violate their fourth amendment rights:

The Supreme Court of the United States first addressed the validity of electronic tracking of a criminal suspect in United States v. Knotts, 460 U.S. 276, 103S.Ct. 1081, 75 L.Ed.2d 55 (1983). In that case, the government obtained information that three individuals were engaged in the manufacture of illicit drugs.Id. at 278, 103 S.Ct. at 1083, 75 L.Ed.2d at 59–60. One of the chemicals used in this manufacturing process was chloroform. Ibid. With the consent of the seller of the chloroform, the government installed a beeper in a container of chloroform that was subsequently sold to one of the participants in the drug manufacturing enterprise, Armstrong, who drove his car to the residence of another participant, Petschen, and transferred the container to his car. Ibid.Petschen then drove his car to a cabin occupied by the third participant, defendant Knotts. Ibid. The government was able to track the transportation of chloroform first to Petschen's house and then to Knotts's cabin by means of intermittent visual surveillance of Armstrong's and Petschen's cars and also by the electronic signals emanating from the beeper. Ibid. Based partly on that evidence, the government obtained a warrant for the search of Knotts's cabin, which revealed evidence that resulted in his conviction for a drug offense. Id. at 279, 103 S.Ct. at 1084, 75 L.Ed.2d at 60. The court stated that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281, 103 S.Ct. at 1085, 75 L.Ed.2d at 62. The court reasoned that the movements of Armstrong's and Petschen's cars that eventually led the police to Knotts's cabin could have been tracked through visual surveillance on public roads and that the “enhancement” of natural, visual surveillance capabilities with the use of “science and technology” did not raise a Fourth Amendment problem. Id. at 282, 103 S.Ct. at 1086, 75 L.Ed.2d at 63.

 

The Court next addressed the issue of electronic tracking in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). In that case, the government was told by an informant that Karo and three confederates had ordered from him fifty gallons of ether, which is used to extract cocaine from clothing. Id. at 708, 104 S.Ct. at 3299, 82 L.Ed.2d at 537. With the informant's consent, the government installed a beeper in one of the cans used to transport the ether. Ibid. For the **122 next five *596 months, the government used the beeper, together with visual surveillance, to track the movement of the ether. Id. at 708–10, 104 S.Ct. at 3300, 82 L.Ed.2d at 537–38. During part of this time, the ether was stored in public storage facilities and at other times in private residences. Ibid. The ether was eventually transported to a private residence in Taos, New Mexico. Id. at 709, 104 S.Ct. at 3300, 82 L.Ed.2d at 538.Based partly on evidence obtained through use of the beeper, the government secured a warrant to search the Taos residence. Id. at 710, 104 S.Ct. at 3300, 82 L.Ed.2d at 538. The execution of this warrant revealed cocaine and drug paraphernalia. Ibid. The lower federal courts invalidated the warrant on the ground that it was obtained based on information revealed by the beeper. Id. at 710, 104 S.Ct. at 3301, 82 L.Ed.2d at 538. The Court reaffirmed its holding in Knotts that the use of a beeper or other electronic tracking device for surveillance of a suspect's or contraband's movements along highways or in other public places does not violate the Fourth Amendment. See id. at 714–15, 104 S.Ct. at 3302–03, 82L.Ed.2d at 540–42. The Court also concluded that the government had obtained sufficient evidence through such means to uphold the validity of the warrant for the search of the Taos residence. Id. at 719–21, 104 S.Ct. at 3305–06, 82 L.Ed.2d at 544–45. In reaching this conclusion, the Court stated that “it is evident that under Knotts there was no violation of the Fourth Amendment” in the use of the beeper to monitor the movement of the truck on public highways until it reached the Taos residence. Id. at 721, 104 S.Ct. at 3306, 82 L.Ed.2d at 545.

 

The Appellate Division also looked at  other jurisdictions application of the law to similar facts:

Courts in other jurisdictions have relied upon Knotts in concluding that the use of information derived from a suspect's cell phone to determine his general location does not violate the Fourth Amendment. See, e.g., United States v. Forest, 355 F.3d 942, 950–52 (6th Cir.2004), remanded on unrelated sentencing grounds, 543 U.S. 1100, 125 S.Ct. 1050, 160 L.Ed.2d 1001 (2005); Devega v. State, 286 Ga. 448, 689 S.E.2d 293, 300–01 (2010); Stone v. State, 178 Md.App.428, 941 A.2d 1238, 1249–50 (2008).

 

 

The Appellate Division found that:

The defendant had no constitutionally protected privacy interest in preventing T–Mobile from disclosing information concerning the general location of his cell phone. Therefore, we uphold the validity of defendant's arrest based partly on that information without considering the applicability of the emergency aid exception.

 The use by the police of information obtained from T–Mobile concerning defendant's general location, derived from signals emitted by his cell phone, which together with visual surveillance resulted in discovery of his car in a motel parking lot, did not violate any legitimate expectation of privacy defendant may have had regarding the location of his car.

That a person has no reasonable expectation of privacy in their movements on public highways or the general location of their cell phone, and therefore, there is no basis in this context for construing the New Jersey Constitution more expansively than the Fourth Amendment.

We only hold that the Middletown police did not violate the Fourth Amendment or Article I, paragraph 7, of the New Jersey Constitution in utilizing the cell-site information provided by T–Mobile to assist in locating defendant to execute the warrant for his arrest.

 

This Case was appealed to the NJ Supreme Court and arguments were heard last week.