When Can A Person Challenge A Search?

Suppressing Evidence

At some point in numerous cases, the issues of whether the search conducted by the police was legal and whether the evidence seized can be suppressed will arise. Before filing motions to suppress the evidence, the initial inquiry must be whether the particular defendant has standing to challenge the search, and thus the seizure.

Challenging A Search Or Seizure In New Jersey

New Jersey  departs from the federal standard of determining who has standing to challenge a search. The federal standard limits standing to those defendants who can show that they had a reasonable expectation of privacy in the place searched. United States v. Salvucci, 448 U.S. 83,93 (1980); Rakas v. Illinois, 439 U.S.  128, 134, 143 (1978). New Jersey, however, finds standing when the defendant “has a proprietary, possessory or participatory interest in the place searched or the property seized.” State v. Alston, 88 N.J. 211, 228 (1981). A proprietary interest is based on the defendant’s ownership of the property seized or the place searched. See State v. Wade, 89 N.J. Super. 139. 149 (App. Div. 1965). The defendant does not have to be in actual possession of the evidence seized in order to have standing; a possessory interest in the evidence is sufficient. State v. Curry, 109 N.J. 1,9 (1987). Finally, participatory interest is defined as having some culpable role in the criminal activity generating the evidence. State v. Mollica, 114 N.J. 329, 339-340 (1989).

Automatic Standing

A defendant may also have “automatic standing.” Automatic standing is granted to those defendants who are charged with a possessory crime – those crimes in which possession of the seized evidence is an essential element of the crime charged. State v. Mollica, 114 N.J. at 338; State v. Curry, 109 N.J. at 7-8; State v. Alston, 88 N.J. at 228. In State v. Carvajal, 202 N.J. 214 (2010), the New Jersey Supreme Court recently reiterated and reapplied its holding in State v. Johnson, 193 N.J. 528 (2008), wherein the Court carved out a narrow exception to the automatic standing rule. Thus, defendant has no standing to object to the search or seizure of abandoned property. Property is abandoned if: (1) a person has control or dominion over property; (2) he knowingly and voluntarily relinquishes any possessory or ownership interest in it; and (3) there are no other apparent or known owners of the property. Carvajal, 202 N.J. AT 223; Johnson, 193 N.J. at 549.

If you or your family has had an unreasonable search or seizure of your personal property, vehicle or person, speak with a qualified criminal attorney who is experienced in challenging search and seizures In New Jersey. The attorneys at Aiello Harris have the experience and knowledge to protect your rights and defend you against criminal charges. For a free initial consultation, call us today at (908) 561-5577 or contact us online.  Your initial consultation is free.

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