Facing an arrest in New Jersey is a serious situation that can have life-altering consequences. Understanding your legal rights is the first and most important step in protecting yourself. This comprehensive guide, prepared by experienced New Jersey criminal defense attorney Brett M. Rosen, Esq., provides a detailed explanation of your rights under both U.S. and New Jersey law. Brett M. Rosen, Esq., has years of experience defending clients throughout New Jersey, including including Bergen County, Cape May County, Ocean County, Essex County,  and Union County against a wide range of criminal charges. This guide is intended to empower you with knowledge, but it is not a substitute for legal advice. If you or a loved one has been arrested, contact our office immediately for a confidential consultation. We are available 24/7 to assist you. 908-312-0368

Your Fundamental Rights Upon Arrest in New Jersey: A Deeper Dive

• The Right to Remain Silent (Fifth Amendment & NJ Law):

  • Why It’s Crucial: The police are trained to elicit information. Even seemingly innocent statements can be twisted and used against you. Anything you say, even before you’re formally read your Miranda rights, can be used against you if you were in a custodial setting.
  • How to Exercise It: Clearly and unequivocally state: “I am exercising my right to remain silent. I will not answer any questions without an attorney present.” Do not engage in any conversation, even if the officer seems friendly or tries to pressure you.
  • Exceptions (Limited): You may be required to provide basic identifying information (name, address, date of birth) in certain circumstances, but even this can be tricky. It’s generally best to consult an attorney before providing any information.
  • Example: If an officer asks, “Do you know why I pulled you over?” the best response is to invoke your right to silence. Anything you say could be interpreted as an admission of guilt.
  • New Jersey Specifics: New Jersey courts strongly adhere to the protections of the Fifth Amendment. There is a substantial body of case law in NJ supporting the right to remain silent, even in situations that might seem ambiguous under federal law.

• The Right to Counsel (Sixth Amendment & NJ Law):

  • When It Attaches: This right attaches as soon as you are in custody and subject to interrogation. “Custody” doesn’t necessarily mean you’re in handcuffs; it means you are not free to leave. “Interrogation” includes any questions or actions by the police that are reasonably likely to elicit an incriminating response.
  • How to Invoke It: Clearly state: “I want a lawyer. I will not answer any questions until my lawyer is present.” Do not sign anything or agree to anything without legal representation.
  • Public Defender: If you cannot afford an attorney, the court must appoint a public defender to represent you. Do not hesitate to request a public defender if you need one.
  • Waiver (Danger): You can waive your right to counsel, but this is almost always a mistake. Police may try to convince you that talking without a lawyer will help you. This is rarely true.
  • New Jersey Specifics: New Jersey has a robust public defender system. The Office of the Public Defender provides representation to indigent defendants in criminal, juvenile, and certain other matters.

• The Right to Know the Charges (Due Process):

  • Formal Notification: You have the right to be formally informed of the specific charges against you. This usually occurs at your arraignment.
  • Initial Arrest: At the time of arrest, the officer should tell you, in general terms, why you are being arrested. However, the full, formal charges may not be presented until later.
  • Why It Matters: Knowing the charges is essential for preparing a defense. Your attorney needs to know what you’re accused of to effectively represent you.

• The Right to a Prompt Arraignment (Due Process & NJ Court Rules):

  • Purpose: The arraignment is your first appearance before a judge. It ensures that you are not held in jail indefinitely without being formally charged.
  • Timeframe: New Jersey Court Rule 3:4-1 generally requires that an arrested person be brought before a judge “without unnecessary delay.” While there isn’t a strict “magic number” of hours, prolonged detention without an arraignment can be a violation of your rights. Typically this will occur within 48 hours.
  • What Happens at Arraignment: The judge will inform you of the charges, advise you of your rights, and address the issue of bail.

• The Right to Reasonable Bail (Eighth Amendment & NJ Law):

  • Bail Reform in New Jersey: New Jersey has undergone significant bail reform. The focus is now on assessing the risk of flight and danger to the community, rather than solely on monetary bail.
  • Factors Considered: The judge will consider factors such as the nature of the charges, your criminal history, your ties to the community, and your employment status when determining whether to release you and, if so, under what conditions.
  • Conditions of Release: Instead of (or in addition to) monetary bail, you may be released on your own recognizance (ROR), subject to conditions such as pre-trial monitoring, electronic monitoring, or regular check-ins with a pre-trial services officer.
  • Detention Hearing: In some cases, the prosecutor may request a detention hearing, arguing that you should be held in jail without bail until trial. You have the right to an attorney at this hearing, and the prosecutor must prove by clear and convincing evidence that no conditions of release would reasonably assure your appearance in court and the safety of the community.

• The Right to be Free from Unreasonable Searches and Seizures (Fourth Amendment & NJ Law):

  • Warrant Requirement: Generally, police need a warrant issued by a judge, based on probable cause, to search your person, home, or vehicle.
  • Exceptions (Numerous and Complex): There are many exceptions to the warrant requirement, including:
    • Search Incident to a Lawful Arrest: Police can search you and the area within your immediate control during a lawful arrest.
    • Plain View: If evidence of a crime is in plain view of an officer who is lawfully in a position to see it, the officer can seize it without a warrant.
    • Consent: If you voluntarily consent to a search, the police do not need a warrant. However, you should never consent to a search without consulting an attorney.
    • Exigent Circumstances: If there is an emergency situation, such as a risk of imminent harm or the destruction of evidence, police may be able to search without a warrant.
    • Automobile Exception: Because vehicles are mobile, there is a reduced expectation of privacy. Police can search a vehicle without a warrant if they have probable cause to believe it contains evidence of a crime.
    • Terry Stop (Stop and Frisk): If an officer has reasonable suspicion that you are involved in criminal activity and that you may be armed and dangerous, they can conduct a brief pat-down (frisk) for weapons.
  • New Jersey Specifics: New Jersey courts often provide greater protection against unreasonable searches and seizures than the federal courts. For example, New Jersey has stricter rules regarding automobile searches than some other states.
  • Inventory Search: If you are arrested and your car is impounded, it may undergo an inventory search. An inventory search must be conducted pursuant to standardized criteria and established routine.

• The Right to a Phone Call (NJ Practice):

  • Not a Constitutional Right (Technically): While not explicitly guaranteed by the U.S. Constitution, New Jersey law and standard police practice generally allow an arrested person to make a reasonable number of phone calls.
  • Purpose: To contact an attorney, a family member, or arrange for bail.
  • Limitations: The police may limit the number and duration of calls, and they may monitor the calls (except for calls to your attorney, which are privileged).

What Should I do If I’m Arrested in NJ

• Stay Calm and Comply (Physically): Do not resist arrest, even if you believe it is unlawful. Resisting can lead to additional charges and potential injury. Comply with lawful orders, but do not volunteer information.
• Invoke Your Rights (Verbally and Clearly): Immediately and repeatedly state: “I am exercising my right to remain silent. I want to speak to a lawyer.” Do not answer any questions beyond providing your legal name.
• Do Not Consent to Any Searches: Politely but firmly refuse any request to search your person, belongings, vehicle, or home. Say, “I do not consent to any searches.”
• Observe and Remember: Pay attention to details: officer names, badge numbers, patrol car number, time of day, location, witnesses, and anything the officers say or do. Write these down as soon as possible.
• Contact an Attorney Immediately: Call an attorney immediately. Brett M. Rosen, Esq., is available 24/7. The earlier you have legal representation, the better protected you will be.
• Do Not Discuss the Case: Do not talk about the case with anyone except your attorney. This includes cellmates, family members, friends, or on social media. Anything you say can be used against you.
• Preserve Evidence. If possible, take pictures or video of any injuries, the scene of the arrest, or any other relevant details. This information may be crucial to your defense.

Frequently Asked Questions (FAQs)

What if the police didn’t read me my Miranda rights? Does that mean my case will be dismissed?

• Not necessarily. The Miranda warning (the familiar “You have the right to remain silent…”) is only required when you are in custody and being interrogated. If you were not in custody, or if the police did not ask you questions designed to elicit incriminating responses, the lack of a Miranda warning may not be an issue. However, if you were in custody and interrogated without being Mirandized, any statements you made may be inadmissible in court. This is a critical distinction. It doesn’t automatically dismiss the case, but it can significantly weaken the prosecution’s evidence.

Can the police search my phone without a warrant?

• Generally, no. The Supreme Court has ruled that cell phones contain a vast amount of personal information and are protected by the Fourth Amendment. Police usually need a warrant to search the contents of your phone, even if you are arrested. There may be very limited exceptions in extremely urgent circumstances, but these are rare. Do not unlock your phone or provide your password without consulting an attorney.

What’s the difference between reasonable suspicion and probable cause?

• Reasonable Suspicion: A lower standard than probable cause. It’s a reasonable belief, based on specific and articulable facts, that criminal activity may be afoot. This allows an officer to briefly detain you (a Terry stop) and potentially conduct a pat-down for weapons.
• Probable Cause: A higher standard. It’s a reasonable belief, based on facts and circumstances, that a crime has been committed and that the person being arrested committed it. Probable cause is required for an arrest and for most searches.

What is a suppression hearing?

• A suppression hearing is a pre-trial hearing where your attorney argues that evidence against you should be excluded from trial because it was obtained illegally, in violation of your constitutional rights. This is a crucial opportunity to challenge the legality of a search, seizure, or confession.

What are the possible penalties for resisting arrest in New Jersey?

• Resisting arrest is a separate crime in New Jersey, and the penalties can be severe, ranging from a disorderly persons offense to a third-degree crime, depending on the circumstances. Even passive resistance can lead to charges.

Additional FAQs 

If my rights were violated, can I sue the police?

• Yes, potentially. Under federal law (42 U.S.C. § 1983), you can sue law enforcement officers and agencies for violating your civil rights. This can include claims for false arrest, excessive force, malicious prosecution, and other constitutional violations.

What are the differences between felonies, misdemeanors, and disorderly persons offenses in New Jersey?

• New Jersey classifies crimes differently than many other states.
  • Indictable Offenses (Felonies): The most serious crimes, categorized into degrees (first-degree being the most serious). These carry potential state prison sentences.
  • Disorderly Persons Offenses (Misdemeanors): Less serious offenses, heard in municipal court. These carry potential jail sentences of up to six months.
  • Petty Disorderly Persons Offenses: The least serious category, also heard in municipal court. These carry potential jail sentences of up to 30 days.

What should I do if I witness police misconduct?

• If you witness police misconduct, try to safely document it. Note the officers’ names, badge numbers, and the time and location of the incident. If possible, take photos or video. Contact a civil rights attorney or organizations like the ACLU.

Potential Defenses Based on Rights Violations

• Motion to Suppress Evidence: This is your primary weapon when your rights have been violated. Your attorney will file a motion arguing that specific evidence (e.g., drugs found during an illegal search, a confession obtained after you invoked your right to remain silent) should be excluded from trial. The judge will hold a hearing to determine whether the evidence was obtained lawfully. If the motion is granted, the suppressed evidence cannot be used against you.
• Motion to Dismiss Charges: In some cases, the violation of your rights may be so egregious that it taints the entire case. For example, if the police fabricated evidence or engaged in malicious prosecution, your attorney may file a motion to dismiss the charges entirely.
• Fruit of the Poisonous Tree Doctrine: This legal doctrine extends the exclusionary rule. If evidence is obtained illegally (the “poisonous tree”), any evidence derived from that illegal evidence (the “fruit”) is also inadmissible. For example, if police conduct an illegal search and find a key to a storage locker, and then use that key to find drugs in the locker, both the key and the drugs would likely be suppressed.
• Lack of Probable Cause: If the police lacked probable cause to arrest you or search you, your attorney can challenge the legality of the arrest or search.
• Failure to Mirandize: If you were subjected to custodial interrogation without being properly advised of your Miranda rights, any statements you made may be suppressed.
• Coerced Confession: If your confession was obtained through coercion, threats, or promises, it is involuntary and inadmissible.
• Identification Issues: If your identification by a witness was the result of an unduly suggestive lineup or photo array, your attorney can challenge the admissibility of the identification.

Contact an Experienced Criminal Defense Attorney in New Jersey

If you’ve been arrested in New Jersey, it’s crucial to have an experienced criminal defense attorney on your side. Brett M. Rosen, Esq. has been defending clients against a wide range of criminal charges. He will aggressively protect your rights and work towards the best possible outcome for your case. Contact us today for a free consultation. 908-312-0368 & brett@nynjcriminalcivil.com

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