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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
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Experience:  Experienced and knowledgeable criminal defense attorney.
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Leading up to the incident, My daughter who is 19, had been

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Leading up to the incident, My daughter who is 19, had been living in a motel for 5 months with a 25 year old man and became pregnant. During the last 2 months she discovered the boyfriend had a crack habit and was often forced to stay in a hotel room days at a time. After realizing the mistake she’d made, dealing with threats from boyfriend who had effectively alienated her from her family, she felt there was nowhere to turn for help and hung herself in the hotel room.
Thankfully, the boyfriend found her in time and was able to resuscitate her. However, shortly after police and EMT's arrived they found drugs in the hotel room. The boyfriend was arrested and my daughter taken to a mental health facility and admitted as a ward of the state. The hospital told me not only was she pregnant but also had UTI due to 7 kidney stones too large to pass, was severely anemic, dehydrated, and malnourished. (She also has a serious mental illness called borderline personality disorder and has made several suicide attempts prior to this)
A few days later the boyfriend was released on bail and showed up at Psych ward to visit my daughter at which point she told him the relationship was over. The boyfriend called me crying saying that it was my daughter's fault he was arrested. He posted similar statement on her facebook page stating he wasn't going to "take the fall" for his drugs because my daughter had decided to hang herself. A few days later the police showed up at the hospital psych ward and arrested her for possession with intent to distribute. She was told what the charges were and taken to county jail where she sat for six days in solitary before going before a judge who briefly explained her rights. No one asked her any questions and I don't know if arresting officers read her her rights.
In addition to these charges, she also had a warrant for failure to appear for a status conference, prior to moving in with boyfriend, because she was in the hospital that week. The public defender called and told me to fax a letter to the court explaining what happened with backup documentation, requesting a new date. Despite faxing the letter and several follow up calls there was no response from the court.
Although bail was immediately set for the new charges, SIX DAYS AFTER BEING TAKEN TO COUNTY JAIL, the superior court judge who issued warrant for failing to appear refused to set a bail amount until she appears before him. It's been 12 days that my daughter has been sitting in jail, pregnant, severely physically and mentally ill, and will be another 9 days before she's to appear before the judge. When I asked court clerk about time limits for setting bail I was basically told that a superior court judge can do what he wants. However, I read NJ state rules;
RULE 3:4. Proceedings Before The Committing Judge; PRETRIAL RELEASE
3:4-1. Procedure After Arrest (b) Arrest on Warrant.
3:4-2. First Appearance After Filing of Complaint (a) Time of First Appearance. And (b) Procedure in Indictable Offenses. (1) and (2)
Not only did she have to wait 6 days before first appearance but did not receive copy of complaint from judge/court. 2 days later she received the written complaint from police department.
10 days after her arrest I received a call from the Sr Probation officer of the court who wanted to ask me some questions for an upcoming bail hearing. During the course of our conversation I discovered that the court had no idea about the suicide attempt, the police arresting and taking her from the psychiatric facility nor her health conditions or pregnancy. The bail hearing was to appoint public defender for current charges even though she had no possibility of being released because of no bail on warrant.
The bail hearing is scheduled for next week which will be over 20 days in the county jail without bail being set for warrant. Also, she is being denied her medications for UTI and severe anemia.
I would like to know what recourse my daughter has, if any? I can find court rules governing procedure but can not find anything about what can be done if courts don’t follow the rules, ie motions filed etc requesting that bail be set. Not being able to understand what’s going on or why this is happening has created severe emotional trauma for my daughter. She is almost 5 months pregnant, has gained no weight and may still be suicidal. I can only imagine what impact this is having on the unborn child.
Is it possible to file a complaint against the prosecutor and officers that filed the charges, arresting her, taking her out of the psychiatric facility without asking her any questions and total disregard to her physical and mental well being as well as that of the unborn baby?
Submitted: 10 months ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 10 months ago.
Thank you for the opportunity to assist you.

First, I'm very sorry you and your daughter are going through this. I have represented several mentally ill clients, a few so profoundly mentally ill that they were effectively unable to exist in society, and they were hospitalized, likely for the rest of their lives. As you are undoubtedly aware, BPD is a serious condition, are there few if any really good medications that treat the root causes of BPD. Some meds help relieve symptoms, but I don't know of any that really get to the heart of the problem, the same way other conditions (schizophrenia, bi-polar, etc.) can be treated.

Regarding the issues and questions you've raised, I'll address these one at a time.

Q) A few days later the police showed up at the hospital psych ward and arrested her for possession with intent to distribute.

There are three main types of drug offenses. Simple possession, which is the least serious; distribution, which is much more serious; and possession with the intent to distribute (PWID) which is in between the first two. Simple possession means possessing drugs for one's own personal use; distribution means (usually) selling drugs to someone else, normally for profit.

With PWID, the person is simply possessing, so that's normally a less serious crime. BUT, the intent to distribute part means that the possessor intends to sell. So, that makes it more serious than just simple possession.

The key is that the possessor must have the PRESENT intent to sell. Think of a drug dealer standing on the street corner. He's in possession and ready to sell, he just hasn't made any sales at the time of possession.

My guess is that the cops did a search warrant for the hotel room after your daughter was removed and found LOTS of stuff in that room that points to drug distribution activity. Money, guns, packaging materials, a large or bulk quantity of drugs, scales, etc. This boyfriend was probably dealing, and he's just stupid enough to be a dealer AND a user. (I've represented a lot of drug dealers. The "best" ones are strictly business people and do NOT use their own product.)

Then, the boyfriend is questioned by the cops and says that he just uses now and then, but your daughter is the big time dealer, or something like that. So, the cops just arrested everyone. To arrest a person, the legal standard is probable cause, which is a ridiculously low evidentiary standard. I know it sounds crazy, but it happens all the time.

In reality, a person who is so mentally ill that she attempted suicide is NOT a person who also had the present intent to distribute a controlled substance. I don't know what was going through this cop's mind, but it wasn't logic or common sense.

If a judge eventually finds that probable cause did not exist at the time of her arrest to charge her, the charges will be dismissed. Even if a judge decides her arrest passes the PC test, I have a hard time believing any judge or jury would convict her as charged, given the circumstances.

Q) She was told what the charges were and taken to county jail where she sat for six days in solitary before going before a judge who briefly explained her rights.

This is a not-infrequent problem without much of a remedy. The U.S. Supreme Court has stated that people must be informed of the charges against them as soon as reasonably possible after arrest. But, if your daughter saw a magistrate who had the opportunity to conduct a bail hearing within a reasonable time (NJ law says within 12 hours), the requirement was satisfied.

The remedy for this sort of violation is actually a habeas corpus petition. It challenges the legality under the federal constitution of a person's continued detention by the government. You might recall about a decade ago, under the GW Bush administration, where Guantanamo detainees ("enemy combatants") challenged their detention without being charged or given access to an attorney? That was a habeas action.

I wouldn't waste your time with one at this point. Habeas can be a time consuming, complex and expensive civil lawsuit that will probably not really get underway until after your daughter is well through or has finished the process of dealing with her current charges. The benefit will be minimal, if any.

Q) No one asked her any questions and I don't know if arresting officers read her her rights.

A Miranda warning (recitation of the 5th amendment right to remain silent and to an attorney before or during questioning) is only required when police question someone who is in custody. It is not required "automatically" whenever a person is arrested. That only happens on TV shows.

The only way this might be an issue is if the cops later claim that your daughter made incriminating statements in response to police interrogation after she had been arrested. If so, the remedy is for her lawyer to move the court to suppress (keep out of evidence) the statements if she was not read a Miranda warning.

Q) When I asked court clerk about time limits for setting bail I was basically told that a superior court judge can do what he wants.

All at once I'm stunned a clerk said this, and yet not surprised in the slightest.

Seriously, that's not right. The NJ constitution has long had a state constitutional provision for bail. So, it may be an abuse of power, or at least an abuse of discretion, for a judge to insist on hearing a particular request for bail and then essentially keep putting it off or just not scheduling a hearing.

Her attorney needs to file a motion to set bail on the failure to appear charge and get her in front of the judge. End of story. Once this mess has all been sorted out, you could look into filing a complaint about the judge's actions (or lack thereof) with the Advisory Committee on Judicial Conduct. They regulate and punish judge's conduct the same way the NJ State Bar regulates and punishes improper conduct by lawyers.

Q) I would like to know what recourse my daughter has, if any? I can find court rules governing procedure but can not find anything about what can be done if courts don’t follow the rules, i.e. motions filed etc requesting that bail be set.

I think I've answered this above. File a motion to have bail set. Her attorney can do this.

Q) Not being able to understand what’s going on or why this is happening has created severe emotional trauma for my daughter. She is almost 5 months pregnant, has gained no weight and may still be suicidal. I can only imagine what impact this is having on the unborn child.

The issue of adequate medical care while incarcerated often comes up. In 2011, the U.S. Supreme Court ordered California to reduce its prison population because the conditions the prisoners were living in, including medical care (or lack thereof) was so horrible it violated prisoners' protection against cruel and unusual punishment. CA is still working on that.

Unfortunately, the legal standard is still the same: a prisoner is entitled to receive "adequate" medical care. In order to make a claim for an 8th amendment violation for not receiving adequate medical care, "...a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97 (1976).

So, it's a factually based claim. The general rule is that the lack of care must be pretty profound. BotXXXXX XXXXXne: it's an uphill battle.

One issue that needs to be addressed if your daughter's comptency to stand trial. Assuming that the prosecutors are not going to immediately recognize the huge mistake they've made by charging her, your daughter's attorney needs to file a motion for an evaluation to determine whether she is mentally healthy enough to go forward with trial. Try to get her out on bail, first, as an evaluation could take a month or two, and we don't want her sitting in jail any longer than necessary.

Q) Is it possible to file a complaint against the prosecutor and officers that filed the charges, arresting her, taking her out of the psychiatric facility without asking her any questions and total disregard to her physical and mental well being as well as that of the unborn baby?

Probably not against the prosecutors, except under rare circumstances. Prosecutors generally have immunity from lawsuits, absent doing something out of this world extraordinary. (Although it does happen from time to time.)

The police, maybe. The remedy your daughter might have is to file a civil rights suit under 42 USC 1983. This is a federal lawsuit against state actors, like police, who violate someone's rights. The only problem is that if the police had probable cause to arrest her, that might severely limit her ability to sue. Seek out a civil rights attorney who is familiar with civil rights claims in federal court to determine whether this is an avenue that can be pursured.

//--------

I am sure this must be heart breaking for you. Your daughter is 19, and thus an adult, but she's not really a grown-up at 19. You as her parent want to help her, but she's not a "little girl" anymore, and there may not be much you can do, especially if she's not willing to accept help. Add to that the challenges of BPD, which generally includes a strong resistance to treatment, and you've got quite a combination. Thank goodness, if nothing else, she has a parent who hasn't given up and is still trying to help.

I wish you the very best with your daughter and her case. I also hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. Otherwise, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Take care,
Shuband
Customer: replied 10 months ago.

I appreciate your kind words. For the past year and a half I've been trying to learn as much as possible about this complex illness. By chance I met a person whose daughter is a psychiatrist that happens to specialize in adolescent BPD but practices in New York (we're in Atlantic County). She advised me to seek out a behavioral therapist that has experience with dialectical behavior therapy (DBT), which is the only proven therapy for not only treating BPD but PTSD and eating disorders as well. After months of searching I finally found a place in Philly but does not accept insurance and extremely expensive. At the time she moved out my daughter was convinced she could take care of herself and didn't need any help but has since changed her mind.


The police did not have a search warrant when they entered the room. They told them that they needed to make sure the room was clear. Whatever that means. I'm guessing the boyfriend assumed there was no choice and had to let them enter the room. (the boyfriend and his friend moved my daughter to another hotel room before police arrived). I'm also guessing police are using "in plane sight" as reasoning for probable cause when the one kid sat on a bag of weed that was on the bed in an effort to hide it (and he wasn't charged). The cops did a quick search and indeed find drugs and money, no guns (yet). However, the boyfriend had received an insurance payment for $150K almost 2 months earlier which is about when the crack habit started. My daughter said he was buying drugs in bulk because he got a better deal. Apparently the more you buy the cheaper drugs are. Go figure. Anyway, my daughter called and told me what happened from the hospital. She asked if I would stop at hotel on my way to see her and bring her cell phone and wallet to her.


I called hotel manager to ask permission since I did not have a key. He said I could as long as I agreed to clean up the mess because, as he put it, my daughter and the boyfriend had destroyed the room, When I arrived at the hotel I learned about boyfriend renting a second room supposedly for a friend who needed a place to stay. When I entered their room I was shocked to see a glass pipe sitting out in the open on the bed. There was contraband scattered about the room. The manager had to go back to office to answer a call and when he left I took several pictures with my cell. When he came back I said I couldn't find her wallet or cell phone. That's when I found out about the second room. The manger took me upstairs to the other room. I located her wallet and cell phone but also noticed her laptop and some of her jewelry also in the room. I asked manager if I should come back after checking on my daughter to clean out their things from the rooms. He told me the next morning would be better and I agreed to be there by noon with friends to help me.


The next day, when I arrived, the hotel room doors were wide open. As I got out of my car the hotel owner pulled up. She said the cleaning girl had found a gun hidden in the upstairs room behind the tv and had called police. She called cleaning girl to come talk to me. She told me after taking gun from upstairs the police went to my daughter and boyfriends room to do another search and said they had taken boxes of stuff. I asked her if my daughter's laptop and jewelry were still upstairs and she said yes. However, after the owner left, she came to downstairs room I was cleaning and told me the laptop and jewelry were gone and maybe cops had taken it. She wasn't sure. I noticed that in their room some of the contraband was gone but not all of it. The cleaning lady told me she'd thrown away the weed she found (but called police because of the gun?) I think she stole it myself. She also told me that the room my daughter was staying in with boyfriend was still in my name and the second room was in boyfriends name. After finding out she was homeless and pregnant I gave them my credit card to pay for room until boyfriend got his money he promised me he was going to use to buy a house for them.


And you know the rest. If the hotel room was still in my name why didn't the police call to question me? None of this makes any sense to me. The boyfriend keeps calling me and even posted on my other daughter's face book page pretending to be his friend asking me to call him which I feel is borderline harassment?


Now that you know the rest, is any of this legal?

Expert:  S. Huband, Esq. replied 10 months ago.
Thanks for the update. I'm glad to have been of some help so far.

Q) At the time she moved out my daughter was convinced she could take care of herself and didn't need any help but has since changed her mind.

As you've probably learned, that's part of the cycle of mental illness. Denial about treating the illness, or what psychologists call a "lack of insight into one's condition" is common. I hope that, if nothing else, this terrible situation your daughter is in now will open her eyes a bit.

And she IS 19 after all! I remember that age -- I thought my parents were idiots. It's the age that some (maybe most) go through. It took me until my mid 20s to realize my Mom and Dad are pretty darn smart! Hopefully your daughter will see the light on this sooner than later!

Q) The police did not have a search warrant when they entered the room. They told them that they needed to make sure the room was clear. I'm guessing the boyfriend assumed there was no choice and had to let them enter the room.

There are a few ways for the police to enter a hotel room. The two most common are with a warrant or with an occupant's consent (permission). But, even if there was no consent from the boyfriend, what you've described sounds like the public safety exception. That's part of the "exigent circumstances" rubric for the fourth amendment requirement warrant requirement. Exigent basically means emergency. They were making sure everyone was "ok" inside the room and that no one else required medical attention.

Once inside, assuming their entry was legal (sounds like it may have been) the police can seize contraband without a warrant if it is in plain view. The fella who sat on the bag of marijuana gave the cops the legal authority to, at the very least, seize that bag and detain everyone there. The officers should have gone and gotten a warrant at that point, however.

For now, we should assume the prosecutors will press ahead with the charges against your daughter. Once she is able to speak to an attorney, that person should be able to get information on the circumstances of the officers' entry, what they saw, etc. Drug cases are often rife with search and seizure issues. If the searching was not done correctly, it is possible the attorney could move to suppress, or keep out of trial, the evidence of the drugs, the paraphernalia, gun, cash, etc. No or less evidence = worse case for the prosecutor, perhaps no case at all.

Q) My daughter said the boyfriend was buying drugs in bulk because he got a better deal. Apparently the more you buy the cheaper drugs are.

That's actually true: more drugs = lower cost. It's why you and I might go to Sam's Club or Costco and buy a 15 pound jar of mayo or a 45 pound box of laundry detergent. (Well, you get my meaning.)

Q) The boyfriend had received an insurance payment for $150K almost 2 months earlier which is about when the crack habit started.

I respectfully XXXXX XXXXX believe a word the boyfriend says about receiving an insurance payment. I would not believe that until I saw black and white proof. Your BS meter should be going off!

Perhaps I'm just jaded, but I get the feeling he's a dealer. The gun, the quantity of drugs, the large wad of cash, living in a hotel, etc. It all adds up. This is likely what the police believe, too.

Q) The manager said the cleaning girl had found a gun hidden in the upstairs room behind the TV and had called police. She told me after taking gun from upstairs the police went to my daughter and boyfriends room to do another search and said they had taken boxes of stuff.

Sounds like the police finally got a warrant. There should be a property receipt for each and every item that was taken. The police may have your daughter's laptop. In almost all drug-related search warrants I have seen for a while now, the cops are always looking for ledgers, electronic storage devices, laptops, etc. where evidence of criminal activity might be stored.

Q) If the hotel room was still in my name why didn't the police call to question me?

They still could. But since there is no evidence you were ever on scene at the hotel before your daughter was removed, you never participated in any drug-related activity, and you did not report your credit card being stolen or used without your permission, you (thankfully) don't have any link to criminal activity at the hotel.

Q) The boyfriend keeps calling me and even posted on my other daughter's face book page pretending to be his friend asking me to call him which I feel is borderline harassment?

This is very troubling. So, what's the best way to get him to buzz off?

If the boyfriend was arrested and charged, it appears he has posted bond. A common bond condition is to not have contact with potential witnesses in the case. You are a potential witness: the hotel room was in your name, your daughter was there during the time when criminal activity allegedly occurred, and you were present on scene shortly after she was removed.

His bond conditions are public record. I cannot get them online, but you can ask to see his file, including his bonding papers, at the clerk's office where his charges are pending. Review them and see whether or not a "no contact" order with witnesses exists. If so, he has violated the terms of his bond. You would notify the prosecutor that he is contact you. The prosecutor could then file a motion asking the judge to revoke his bond and send him back to jail, or raise his bond to a higher amount.

If this doesn't work, you could simply call the police and report his harassing behavior. They are probably going to ask whether you've told him you do not want contact with him. So, that's another step to take. If you can get an address, send a polite yet firmly-worded letter (certified, return receipt requested) to this delightful young man, telling him to not contact you any more. If nothing else, you should tell him verbally in person or on the phone that you do not wish for him to contact you any more.

Q) Now that you know the rest, is any of this legal?

I think I've probably addressed this above, but if you have specific follow up, please let me know.

Thanks again for the opportunity to assist you. Take care,
Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 997
Experience: Experienced and knowledgeable criminal defense attorney.
S. Huband, Esq. and 8 other Criminal Law Specialists are ready to help you
Customer: replied 10 months ago.

this isnt a question just FYI in case it matters. He was essentially homeless. When I refused to allow him to stay in my home and my daughter moved out with him, he managed to get JFS (jewish family services) to put them up in a rundown motel for a month. I can't see a drug dealer installing carpets for $20 a day so they could eat. JFS would only bring them bread and PBJ once a week while trying to get them food stamps. When I found out what was going on and that my daughter was pregnant, I decided it would be easier to keep an eye on them if I was helping them get on their feet. I personally faxed notarized change of address to alstate, picked up the check from his mother's when it arrived, took him to the bank and watched him set up a savings and checking account with bank manager, as well as set up a consult for him with an investment/finance manager. If I hadn't helped him the way I did my BS meter would have indeed been off the chart.


Thanks for your help. I feel I have a much better understanding of this legal mess and what to expect.

Expert:  S. Huband, Esq. replied 10 months ago.
Good morning and thanks for the update and for your patience.

Q) If I hadn't helped him the way I did my BS meter would have indeed been off the chart.

I'm sorry if I came across as crass or as if I were questioning your intuition. In hindsight, I probably jumped to that conclusion too quickly. I suppose I allowed my brain to fill in details that I didn't know with assumption, supposition and surmise! Whoops!

Now that I have a more complete picture, I see where you're coming from. Sorry for jumping to conclusions so quickly.

Nonetheless, I wish you the very best with this situation. Your daughter is very lucky to have you looking out for her, whether or not she realizes it or says so now.

Best wishes to you and your family,
Shuband
Customer: replied 10 months ago.

No need to apologize. I understand how farfetched it sounded but I had to cut back details in order to explain the overall situation.(if that makes any sense) They only allow so many characters and I kept running out of room. So actually, I believe it's me who owes you the apology. Anyone would have assumed the same thing.


Thank you again for your help. Having a clear picture of what's what will keep me from wasting time focusing my attention on trying to figure out issues that are irrelevant, not what I thought, or not worth persuing.


 


Terri

Expert:  S. Huband, Esq. replied 10 months ago.
Thanks for the update. I didn't realize there is a character limit for questions! Oh well.

I'm here if you have additional questions or concerns in the future:

http://www.justanswer.com/law/expert-shaun-huband/

Best wishes,
Shuband
Expert:  S. Huband, Esq. replied 10 months ago.
Hello,

I was notified that you rated the answer I gave positively and that you generously applied a bonus payment for my efforts. Thank you so much. I am very pleased and gratified that I was able to help you. I sincerely XXXX XXX matter(s) we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns. Again, thank you very much for the opportunity to assist you.

Take care,
Shuband

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