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Expungement and Record Sealing Overview-Justia

Expungement and Record Sealing Overview
A criminal record can follow a person for an entire lifetime, affecting his or her ability to find a job, continue with education, or even sign a lease. Even if a criminal case does not result in a conviction, a record of an arrest and a criminal prosecution remains. It is possible for a person to have records of a criminal case sealed, meaning that no one may view the contents of his or her file without a court order. It is also possible, through a process known as expungement, for a person to have the criminal file removed from the public record entirely. Laws regarding expungement, including the types of offenses that may be expunged and the procedure for doing so, vary widely from one state to another.

Expungement vs. Record Sealing
The key difference between expunging a person’s criminal record and sealing it is that a sealed record still “exists” in both a legal and physical sense, while expungement results in the deletion of any record that an arrest or criminal charge ever occurred. It is typically standard procedure to seal records of juvenile criminal proceedings once the person turns 18, along with other criminal cases involving a juvenile, but those records are still accessible with a court order.

Expungement vs. Pardon
Expungements are typically available for criminal cases that were dismissed, or that resulted in some form of deferred disposition. They are rarely available for cases that resulted in a conviction. A pardon, which forgives a person for an offense and cancels any remaining punishment, is only necessary after a conviction.

A person’s criminal file remains in the public record after a pardon, although a person may then be able to petition for expungement, depending on the laws of his or her jurisdiction. The authority to grant an expungement is vested in judges, while the authority to grant a pardon rests with the President of the United States for federal crimes, or state governors for state-level offenses.

Eligibility for Expungement
State laws defining the requirements to qualify for expungement vary widely. Some states only allow expungements in cases that resulted in the dismissal of the charges before the entry of a plea, such as through successful completion of a deferred prosecution agreement. Other states might allow expungements after a conviction, but only for certain offenses categorized as minor infractions or misdemeanors. Serious felonies are rarely, if ever, eligible.

Criteria for expungement eligibility might include:

Sufficient time since the indictment or the conclusion of the criminal case;
No additional criminal history since the end of the case;
No convictions for certain disqualifying offenses, which usually include serious felonies;
Minimal prior criminal history; and
Completion of all terms of deferred disposition, probation, parole, or the sentence.
Expungement Procedures
A person must file a petition for expungement, often in the same court in which the criminal prosecution took place. The petition only addresses a single criminal case. If a person wants to expunge records of multiple cases, he or she must file more than one petition. The judge must review the petitioner’s file and determine whether he or she meets that jurisdiction’s requirements. Individual courts may also have their own procedural rules regarding expungement cases.

If the court grants the expungement, the petitioner might be responsible for providing copies of the order to any and all law enforcement agencies that have records related to the case. The court clerk typically keeps the main criminal file, but records may also be in the possession of the police department, sheriff’s office, jail, and probation office, as well as any office involved in community service or other requirements.

Search and Seizure Frequently Asked Questions-Justia

What is the Fourth Amendment?
The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches and seizures by law enforcement officers. A search and seizure is considered unreasonable if it is conducted by police without a valid search warrant, and does not fall under an exception to the warrant requirement.

What is a search warrant?
A judge issues a search warrant to authorize law enforcement officers to search a particular location and seize specific items. To obtain a search warrant, police must show probable cause that a crime was committed and that items connected to the crime are likely to be found in the place specified by the warrant.

What constitutes a valid search warrant?
A valid search warrant must meet four requirements: (1) the warrant must be filed in good faith by a law enforcement officer; (2) the warrant must be based on reliable information showing probable cause to search; (3) the warrant must be issued by a neutral and detached magistrate; and (4) the warrant must state specifically the place to be searched and the items to be seized.

Where can police search and what can they seize under a warrant?
Police may only search the particular area and seize the specific items called for in the search warrant. Police may search outside the scope of the warrant only if they are protecting their safety or the safety of others, or if they are acting to prevent the destruction of evidence. Police may seize objects not specified in the warrant only if they are in plain view during the course of the search.

Can police conduct a search without a search warrant?
Yes. Under some circumstances, police are authorized to conduct a search without first obtaining a search warrant. Common exceptions to the warrant requirement include:

Consent. Police may conduct a search without a search warrant if they obtain consent. Consent must be freely and voluntarily given by a person with a reasonable expectation of privacy in the area or property to be searched.
Plain View. An officer may seize evidence without a warrant if an officer is on the premises lawfully and the evidence is found in plain view.
Search incident to arrest. While conducting a lawful arrest, an officer may search an individual’s person and their immediate surroundings for weapons or other items that may harm the officer. If a person is arrested in or near a vehicle, the officer has the right to search the passenger compartment of that vehicle.
Exigent Circumstances. Police are not required to obtain a search warrant if they reasonably believe that evidence may be destroyed or others may be placed in danger in the time it would take to secure the warrant.
Automobile Exception. An officer may search a vehicle if they have a reasonable belief that contraband is contained inside the vehicle.
Hot Pursuit. Police may enter a private dwelling if they are in “hot pursuit” of a fleeing criminal. Once inside a dwelling, police may search the entire area without first obtaining a search warrant.
Is it lawful for an officer to pat me down without a warrant?
A police officer may stop an individual to conduct a field interview if the officer has reasonable suspicion that criminal activity has been, is being or is about to be committed. During the field interview, the officer may conduct a pat-down search of the outer garments for weapons if the officer has a reasonable fear for his or her own safety as well as that of others.

What recourse do I have if a search was conducted unlawfully?
If evidence is obtained without a valid search warrant, and no exception to the warrant requirement applies, the evidence may be subject to the exclusionary rule. The exclusionary rule prevents illegally obtained evidence from being admitted in a court of law. Evidence gathered on the basis of illegally obtained evidence (known as “fruit of the poisonous tree”) will also be excluded.

Arrest & Interrogation Frequently Asked Questions -Justia

Arrest & Interrogation Frequently Asked Questions
What is an arrest warrant?
An arrest warrant is a document that authorizes police to arrest a person that they suspect has committed a crime. A magistrate will issue an arrest warrant if a police officer submits a sworn affidavit showing probable cause that a specific crime has been committed by the person named in the warrant.

Can I be arrested without an arrest warrant?
Yes. Typically, if a police officer has probable cause to believe that a crime has been committed, the officer may make an arrest without an arrest warrant. There are two exceptions to this general rule. First, absent exigent circumstances, officers must obtain an arrest warrant before arresting a suspect in their home. Second, most jurisdictions require an officer to obtain a warrant to arrest a suspect for a misdemeanor offense, unless the misdemeanor was committed in the officer’s presence.

What recourse do I have if my arrest was illegal?
If an arrest warrant was required and was not obtained before the arrest, or if the arrest warrant was issued without a showing of probable cause, a suspect may contest the validity of the arrest. A person will not be set free because their arrest was illegal. An illegally arrested person may, however, argue to exclude from their trial any evidence found during a search incident to the arrest or any statements made to police after being arrested.

Can an officer use force to make an arrest?
When making a lawful arrest, an officer may use force that is reasonable and necessary to overcome resistance. An officer may not use excessive force if it is not warranted under the circumstances.

What rights do I have after I am arrested?
Those who have been arrested have a number of rights after arrest, including:

The right to know what charges have been brought against them.
The right to be told the identity of arresting officers.
The right to communicate by telephone with an attorney, family, friends or a bondsperson.
The right to remain silent if questioned by police.
The right to be represented by an attorney before speaking with police.
What is a Miranda warning?
A Miranda warning is an admonition given by police advising people of their constitutional right to remain silent and to have an attorney present before answering any questions or making any statements. Miranda warnings are given as a prophylactic measure to protect a criminal suspect’s Fifth Amendment right to avoid self-incrimination.

When is an officer required to give Miranda warnings?
Miranda warnings are required when a person is in police custody and when they are subject to police interrogation.

When is a person in police custody?
A person is “in custody” when they have been stopped by police and they do not feel that they are free to leave. A person may be in custody without being arrested.

What is police interrogation?
Police interrogation occurs any time police officers question a person, or make a statement meant to illicit a response from that person. Thus, a person who is arrested need not be given Miranda warnings immediately if they are not subject to interrogation.

How do I invoke the right to remain silent?
Suspects may invoke the right to remain silent by telling officers that they do not wish to answer any questions, or that they wish to say nothing until their attorney is present. If an officer continues to ask questions, the suspect’s Fifth Amendment rights have been violated and any statements elicited from the suspect are inadmissible in court.

Can the fact that I invoked my Miranda rights be used against me in court?
No. A suspect’s decision to remain silent is not relevant to a suspect’s guilt and may not be considered by a jury in a court of law.

Can I waive my Miranda rights?
Yes. A suspect may waive the right to remain silent and choose to speak to police officers. A suspect’s silence does not constitute a waiver. Rather, a suspect must indicate explicitly that all Miranda rights have been waived. After the waiver has been given, all statements made by the suspect may be used in evidence against them.

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MICHAEL C. DORF: People Born in the United States Are Properly Citizens

Worth repeating:

AUGUST 26, 2015:Last week, Donald Trump released a white paper on immigration reform. It proposes, among other things, to “end birthright citizenship.” Trump himself should not be taken seriously as a presidential candidate, and it should be noted that his draconian views on immigration are controversial even within the Republican primary field. For example, in response to Trump, former Florida Governor Jeb Bush characterized birthright citizenship as “part of our noble heritage.”

Still, Trump’s tough-on-immigration position appeals to many Republican primary voters. Moreover, as his white paper trumpets, even Democratic Senate minority leader Harry Reid once supported ending birthright citizenship. Accordingly, those of us who think that children born in the United States to undocumented immigrants are properly deemed citizens cannot simply ignore Trump’s proposal as attention-grabbing buffoonery.

Section 1 of the Fourteenth Amendment

In the U.S. context, the term “birthright citizenship” refers to the Citizenship Clause of the Fourteenth Amendment, which begins: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” That language was added to the Constitution following the Civil War in order to overrule the infamous Dred Scott decision, which declared that African Americans could not be citizens. However, like other provisions of the Fourteenth Amendment, the language of the Citizenship Clause is general: by its terms, it does not apply merely to former slaves and their descendants but to “all persons born” here.

The Trump white paper does not say how Trump intends to end birthright citizenship. Some people who oppose birthright citizenship call for a constitutional amendment, but other reformers suggest that no amendment is needed. The Citizenship Clause, they note, is limited to those persons “subject to the jurisdiction” of the United States and they argue that children of undocumented immigrants do not satisfy this criterion.

As a textual matter, that claim is odd. As Professor (and Verdict columnist) Ronald Rotunda noted in a 2010 Chicago Tribune op-ed, undocumented immigrants are indeed subject to the jurisdiction of local, state, and federal government—as are their children. If they break the law, they can be prosecuted just like anybody else.

What does the Fourteenth Amendment mean when it refers to people who are born here but not subject to U.S. jurisdiction? The Supreme Court answered that question in the 1898 case of United States v. Wong Kim Ark. Riding a wave of nativist racism against East Asians that bears an uncomfortable resemblance to the anti-Latino sentiments that contemporary immigration hawks sometimes express, Congress enacted and then re-enacted the Chinese Exclusion Act, which placed severe restrictions on the entry into the United States of Chinese persons—including, in the view of the government official who sought to exclude Wong Kim Ark, ethnic Chinese who had been born in the United States.

The Court rejected the government’s attempt to apply the Chinese Exclusion Act on the ground that Wong Kim Ark was a U.S. citizen, even though his parents remained subjects of the Emperor of China. Justice Gray’s majority opinion relied mostly on the common law and practice that formed the backdrop for the Fourteenth Amendment. That backdrop also informed the Court’s understanding of the Amendment’s express qualification: Children born in the U.S. to foreign ambassadors and consuls, or to soldiers or others accompanying invading armies had, by tradition, not been regarded as citizens, as they were not “subject to” our law. But otherwise, people present in the U.S. are subject to U.S. laws and, for that reason, most people born in the U.S. are U.S. citizens.

Yet Wong Kim Ark’s parents were in the U.S. legally when he was born. No Supreme Court case affirming the broad scope of birthright citizenship speaks to the precise question of the citizenship of children born to undocumented immigrants. And in their 1985 book Citizenship Without Consent: Illegal Aliens in the American Polity, Peter Schuck and Rogers Smith relied on an 1884 Supreme Court case holding that Native Americans are not entitled to birthright citizenship to question the broad language of Wong Kim Ark as applied to children of undocumented immigrants.

Thus, if immigration liberals are comforted by the apparently clear implications of the language of Wong Kim Ark, we should remember that before the Supreme Court dignified the claim that Congress lacks the power to require people to purchase health insurance, that claim too was widely dismissed as essentially foreclosed by prior precedent. We should not underestimate the ability of clever lawyers to make off-the-wall arguments sound reasonable—especially if they end up arguing before a Supreme Court that includes new Justices appointed by a future get-tough-on-immigration president.

The Virtues of Birthright Citizenship

Should the opponents of birthright citizenship fail to get what they want by persuading or packing the Supreme Court, they would need to amend the Constitution. What can we say to persuade Americans that such an amendment would be a bad idea?

The best defense of birthright citizenship echoes the position espoused by the Supreme Court in the 1982 case of Plyler v. Doe. Texas tried to deny a free public education to the undocumented immigrant children living in that state. In holding that the state thereby violated the Constitution, the Court noted that the state’s approach was illogical. As Justice Powell explained in a concurrence, no one “benefits from the creation within our borders of a subclass of illiterate persons, many of whom will remain in the State.”

So too with citizenship itself. If we are not going to deport the millions of people born here to undocumented immigrants—and we are not—then there is little reason to withhold the sense of belonging and the concomitant sense of duty that go with citizenship.

Many countries, including countries generally regarded as democracies, reject birthright citizenship, treating parentage as the chief means of acquiring citizenship. As Professor Rotunda noted in his Op-Ed and as Professor Neil Buchanan discussed in his recent column on the Dominican Republic’s treatment of its ethnic Haitian minority, this approach can be ugly. Generation after generation of people who have known no other home are treated as not even second-class citizens.

By contrast, birthright citizenship implements widely shared and characteristically American values. Through the Titles of Nobility Clauses of Article I, Sections 9 and 10, the Constitution abjures eighteenth-century European notions of privilege obtained by birth. Meanwhile, Article III, Section 3 forbids the “Corruption of Blood”—the old practice of disinheriting the heirs of persons convicted of treason or other serious crimes. Together, these provisions reject the proposition that in America the sins of the fathers (or mothers) can be visited on the sons (or daughters).

That notion also informed the Supreme Court’s decision in Plyler. “Even if the State found it expedient to control the conduct of adults by acting against their children,” Justice Brennan wrote for the majority, “legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.”

No doubt the American commitment to disregarding accidents of birth has always been under-inclusive, originally grossly so. After all, the original Constitution co-existed with race-based chattel slavery, and we still face the consequences of our collective failure to fully remedy that historic wrong.

But the Fourteenth Amendment—including its Citizenship Clause—was a huge step in the right direction. Curtailing its promise of birthright citizenship would thus be a huge step backward.shutterstock_101132716-300x200

New Jersey Division of Child Protection and Permanency v. K.N. Docket: a-10-14 Opinion Date: December 15, 2015 Areas of Law: Family Law, Government & Administrative Law

In May 2013, the Division of Child Protection and Permanency filed an Order to Show Cause for Care and Supervision of T.E. (Tommy), the six-year-old son of K.N.(mother) and K.E.(father). The Family Part investigated allegations of domestic violence and drug use in Tommy’s home and awarded temporary custody of Tommy to the Division. The Division temporarily placed Tommy in the home of his maternal grandmother, where he had been residing for several months, and conducted an on-site evaluation of the home. A later evaluation revealed that Tommy’s maternal step-grandfather had been the subject of a domestic-violence complaint, which was dismissed. The Division substantiated the domestic violence claim and determined that the maternal grandparents home could not be licensed under the Resource Family Parent Licensing Act. As a result, the Division removed Tommy from his maternal grandparents’ home and placed him with his maternal great aunt who was eligible to be licensed as a resource family parent and receive financial assistance under the Act. At the permanency hearings that followed Tommy s placement with his maternal great aunt, the Law Guardian argued that Tommy should be returned to the home of his maternal grandparents because Tommy was developing attachment issues and experiencing personality changes. The Division maintained that Tommy could not be returned to the home because the maternal step-grandfather had been the subject of a domestic violence complaint that was substantiated by the Division. At the conclusion of the hearings, the Family Part judge ordered the Division to return Tommy to the home of his maternal grandparents and to provide them with the financial assistance available to a resource family parent licensed under the Act. The Division filed an emergent appeal to stay the Family Part s order. The Appellate Division held that the Family Part had the authority to place Tommy with his maternal grandparents, but remanded the matter for further consideration of all relevant statutory and regulatory factors to determine the suitability of the placement. The Supreme Court affirmed, substantially for the reasons expressed in the Appellate Division opinion, that the Family Part judge had the authority to determine that the child s best interests were served by his continued placement with a relative not licensed as a resource family parent under the Act, and that the Family Part judge did not have the authority to compel the Division to pay financial assistance under the Act to a relative not licensed as a resource family parent. However, because the Division returned Tommy to the care and custody of his mother, the Court dismissed as moot the Appellate Division’s remand to the Family Part to consider factors relevant to a placement review, including the claim of prior domestic violence involving the maternal step-grandfather.

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