Legal Question in Criminal Law in New Jersey

warrents and plea barrgins
If someone was arrested from a
house which got raided, but the
search warrent was outdated by a
year what is hat grounds for? Does it
matter because of what they found?
if someone makes statments under
the influence and without and
attoerny present can those
statements be changed?

Asked on 6/25/09, 4:04 pm

4 Answers from Attorneys

Kenneth Vercammen,Esq. Kenneth Vercammen

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Re: warrents and plea barrgins

The New Jersey Constitution (1947, Article 1, Paragraph 7) prohibits any unreasonable searches and seizures and guarantees to the people the same rights as the Federal Constitution. When evidence is seized or even a car is stopped without a warrant or violation, the burden of proof is upon the state to prove that there was no Fourth Amendment violation. State v. Brown, 132 N.J. Super. (App. Div. 1975). The state must prove that there was no Fourth Amendment violation by a preponderance of the evidence. State v. Whittington, 142 N.J. Super. 45 (App. Div. 1976). Such searches are presumptively invalid and the State carries the burden of proof of legality. State v Valencia 93 NJ 126, 133 (1983), State v. Brown, supra.; State v. Welsh, 84 N.J. 348, (1980). In the absence of a valid exception to the requirement for a search warrant, a search conducted without a warrant is per se unreasonable. Schnekloth v. Bustamonte, 412 U.S. 218,219, 93 S. Ct. 2041, 36 L. Ed 2d 854, 858 (1973) Enforcement of the federally created rights has been effected by rendering the fruits of unconstitutional searches inadmissible in associated criminal court proceedings, Weeks v United States 232 US 383, 34 S. Ct. 341, 58 L. Ed 652 (1914). These restrictions are applicable to the states, Mapp v Ohio, 367 US 643, 81 S. Ct. 1684, 6 L. Ed 2d 1081 (1961). State judges, no less than federal judges, have the high responsibility for protecting constitutional rights. While they are disturbed to allow defendants to go unprosecuted, their oath of office requires them to continue the guarantees afforded by the Constitution. As explained in Weeks, supra,:

We recommend you hire an attorney for this serious issue.

To read entire article, go to http://www.njlaws.com/search_and_seizure_law_without_a_search_warrant.htm

Answered on 6/26/09, 12:45 pm

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