Schwartz & Posnock

In State v. Demetrius Diaz-Bridges,  2012 N.J. LEXIS 6 (January 12, 2012), the New Jersey Supreme Court reversed the lower court’s suppression of the defendant’s inculpatory statements.  The Court considered whether the defendant’s request for permission to speak with his mother in the midst of his custodial interrogation was an assertion of his right to silence that required the investigating officers to cease their questioning.  Because neither defendant’s statements about his desire to speak with his mother nor any of his other statements were assertions of his constitutionally-protected right to silence, the Court concluded that suppression of any portion of his confession was in error. The Court found that the defendant willingly agreed to speak with the police on multiple occasions.  Although when confronted with inconsistencies in his various stories, the defendant’s demeanor changed and he began to weep, the Court did not reasonably equate that response with the invocation of any right.  Nor was his request to speak with his mother of constitutional significance.  The Court held that nothing in the words that defendant used suggested that he was asking for the questioning to stop or intended to invoke his right to silence.  When defendant did clarify the reasons for the request, he told the detectives that he wanted to be the first to tell his mother what he had done.  He repeatedly told them that he was willing to continue speaking with them.  As a result, the Court held that his requests to speak with his mother could not be interpreted to have been a desire to secure her advice about the waiver of his rights or an assertion of silence pending the grant of permission to speak with her.

The lesson of the Diaz-Bridges decision for New Jersey criminal lawyers is a simple one: In advising a client who is under investigation or who has been charged with a crime, whether or not the investigation is for an alleged state criminal offense or a federal criminal offense, the client should be instructed to clearly and unequivocally assert their right to remain silent and their right to consult with an attorney. At Schwartz & Posnock, we routinely provide our business cards to our clients, for the purpose of providng the card to a law enforcement agent, so that the identification of our firm as criminal defense counsel for the accussed is known, and for the purpose of reminding our client to assert their right to remain silent.

The Government Accountability Office recently reported to the Congress on the Bureau of Prisons (Fed BOP) authority to reduce a prisoner’s period of incerceration. In the event that a client is sentenced to a term on incrceration in federal prison, criminal defense lawyers in New Jersey should know that a sentence may be reduced by application to the Fed BOP under the following circumstances.

The Fed BOP primarily uses three authorities – the Residential Drug Abuse Treatment Program (RDAP), community corrections, and good conduct time. Eligible inmates can participate in RDAP before release from prison, but those eligible for a sentence reduction are generally unable to complete RDAP in time to earn the maximum reduction (generally 12 months).  During fiscal years 2009 through 2011, of the 15,302 inmates who completed RDAP and were eligible for a sentence reduction, 2,846 (19 percent) received the maximum reduction and the average reduction was 8.0 months.  BOP officials said that participants generally do not receive the maximum reduction because they have less than 12 months to serve when they complete RDAP.

To facilitate inmates’ reintegration into society, BOP may transfer eligible inmates to community corrections locations for up to the final 12 months of their sentences.  Inmates may spend this time in contract residential re-entry centers (RRCs) — also known as halfway houses — and in detention in their homes for up to 6 months.  Based on the most recently available data, almost 29,000 inmates completed their sentences through community corrections in fiscal year 2010, after an average placement of about 4 months; 17,672 in RRCs, 11,094 in RRCs then home detention, and 145 in home detention only.

Most eligible inmates receive all of their potential good conduct time credit for exemplary compliance with institutional disciplinary regulations – 54 days taken off their sentence, per year served, if an inmate has earned or is earning a high school diploma; 42 days if not.  As of the end of fiscal years 2009, 2010, and 2011, about 87 percent of inmates had earned all of their available credit.

On January 23, 2012, the Supreme Court decided that U.S. law enforcement agents need a search warrant to track a suspect’s movements using a GPS device. In U.S. v. Jones, the Court reversed the conviction and a life-sentence for cocaine trafficking. The Court held that GPS monitoring of the suspect’s movements for over a month provided the key evidence to convict him. This decision is binding on New Jersey law enforcement agents, including the New Jersey State Police and the police departments in every town and city in the State. Criminal defense attorneys in New Jersey should carefully analyze the Jones decision because it has vast implications in terms of cell phone tracking and public surveillance cameras. As technology develops, and permanent records are kept about our daily activities, including purchases of goods and services (such as gasoline, E-Z Pass usage, and online purchases), there is a database compiled that can serve as a road map of everywhere we have been on a given day.  The New Jersey Supreme Court has always been out in front of nearly every other State in terms of safeguarding personal liberties and in providing significant remedies in criminal cases for individuals who have had their privacy violated in the course of a criminal investigation.  It will be interesting to see if New Jersey courts expand on the Jones ruling and extend the Fourth Amendment privacy expectation to other areas of developing technology.