Criminal law is certainly an important part of the study of business law, and Fourth Amendment questions always seem to come up in class.  Students are very interested in learning about when the police can search a person’s car, office or home, or when and where can they arrest someone. Generally, police need a warrant either to search a person’s property or to arrest, unless it falls within a constitutional exception.

Most students do not know that there is a difference between an arrest warrant and a search warrant.  An arrest warrant is an order by the court directing a sheriff, constable or police officer to find and arrest a person who is wanted for a crime.  In contrast, a search warrant permits a law enforcement officer to search a person’s place of residence or other location for evidence of a crime.  An arrest warrant, however, does not permit the police to search a home or building for a person where the police reasonably believes the person named in the arrest warrant may be found without the consent of the owner.  The question then becomes whether there are any other times police may enter certain areas of a third-party home and search for a person even though they are only acting pursuant to an arrest warrant.

In the New Jersey Appellate Division decision, State v. Craft, 425 N.J. Super. 546 (App. Div. 2012), Judge Graves held that exigent circumstances permitted the police to enter a bedroom of a third-party home to arrest defendant for a shooting even though they were operating solely under the authority of an arrest warrant.  The facts are as follows.

The Newark Police Department’s Fugitive Apprehension Team is responsible to dispatch officers to certain addresses where fugitives may be found based on certain intelligence.  James Craft was wanted for a shooting.  Officers arrived at the location noted in the arrest warrant.  It was a three-family dwelling located on South 13th Street.  The police believed that defendant was residing there with family on the second-floor.

The front door to the residence was open, and the police proceeded to the second floor.  The officers were in plain clothes, but at least one of them was wearing a badge around his neck. Defendant’s mother opened the door and permitted the police to enter.  The officers told defendant’s mother that they had a warrant to arrest her son. Defendant’s mother told the police that her son was not there, but offered to call him on her cell phone.  Upon dialing the number, the police heard a phone ringing behind a bedroom door. The officers believed it was defendant’s cell phone ringing and that he would most likely be in the bedroom.

When they opened the bedroom door, they found defendant attempting to escape.  The police testified they saw defendant drop a handgun as he climbed through the window.  They also discovered five vials of cocaine in plain view on the top of a dresser.  Defendant was arrested and charged.  The trial court suppressed the evidence finding that the “coincidence of a phone ringing” was insufficient evidence to justify entry into the bedroom without a search warrant and that the police did not have an “objectively reasonable belief” that “defendant both resided at and would be found at” his mother’s apartment.

On appeal, the court reversed, holding that “there was no constitutional violation by the police, and it was error to suppress the items that were seized. The arrest warrant provided probable cause for defendant’s arrest; the officers entered the apartment with [defendant’s mother’s consent]; and [the police] had reason to believe defendant was present in an adjoining room when a cell phone began ringing after [defendant’s mother] called her son.  In addition, the officers knew the arrest warrant was for ‘a shooting’ and, therefore, defendant was potentially dangerous.  Under these circumstances, there was a compelling need for immediate action to apprehend defendant, and it was impracticable for the officers to obtain a search warrant.  Thus, their entry into the bedroom was objectively reasonable, and the items seized were in plain view.”

Here, the exigency to protect persons inside the home from being shot by a potentially armed individual excused the police from failing to consider the possible “coincidence” of the phone ring. According to one of the officers, upon hearing the phone ring at the time defendant’s mother dialed, he reasoned since people generally stay close to their cell phones, he would find defendant next to his.  As a result, the search into the bedroom was reasonable.

In Heien v. North Carolina, the Supreme Court held that where a police officer makes a stop based upon a reasonable mistake about a law, the stop is justified.

In this case, an officer stopped a vehicle because one of its two brake lights was out, based on a misunderstanding that the North Carolina law permitted only one working brake light. The officer stopped Heinen’s vehicle because one light was not working and then proceeded to a consensual search of the car. The search turned up a bag of cocaine located in a duffle bag in the trunk. Heinz was arrested and convicted of attempted drug trafficking. The question presented to the Court was whether a police officer’s reasonable mistake of law can give rise to the reasonable suspicion necessary to uphold a seizure of an automobile and the occupants in it under the Fourth Amendment.

The North Carolina statute reads that a car must be:

equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or more other rear lamps. N. C. Gen. Stat. Ann. §20–129(g) (2007).

The Court concluded that the statute required only one stop lamp to be working. However, the officer was under a different impression of the law at the time. A nearby statute requires that “all originally equipped rear lamps” be functional. N. C. Gen. Stat. Ann. §20–129(d). The officer made the stop under a mistake in law. Nevertheless, the Court held that even if an officer reasonably misunderstood the law, as long as the officer conducts a search or seizure reasonably under the Fourth Amendment he is acting justifiably.

“To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’” Reasonable mistakes of fact are permissible. For example, when someone consents to the search of a home, the search will be considered valid even if the officer mistakenly believes that the person consenting is the owner.

Reasonable mistakes of law are also permissible. “Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground.” Even laws that police enforce that are later declared unconstitutional by a court does not rebut an officer’s reasonable assumption that the laws were valid at the time.

Heinen argued that there is no margin of error for an officer’s mistake of law. He argued the legal maxim: “Ignorance of the law is no excuse.” If persons cannot get out of trouble by claiming they were mistaken about the law, then neither can the police.

But the Court concluded the law protects against only “reasonable mistakes,” and therefore, “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” The Court further concluded Heinen’s reliance on the legal maxim is misplaced. A person cannot escape criminal liability by claiming he did not know the law, but neither can the government impose criminal liability by a mistaken understanding of the law. The Court explained:

If the law required two working brake lights, Heien could not escape a ticket by claiming he reasonably thought he needed only one; if the law required only one, Sergeant Darisse could not issue a valid ticket by claiming he reasonably thought drivers needed two. But just because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop.

In this case, Heien did not appeal his brake-light ticket. Instead, he appealed a cocaine-trafficking conviction, as to which he did not claim the police made either a mistake of fact or law.

In a recent NJ.com article, expert lawyers in DUI laws revealed how they attack drunk driving charges.  Normally, defense lawyers rely on plea bargaining when a client is charged with a crime. Plea bargaining involves an agreement between a prosecutor and defendant where the defendant will plead to a lesser charge in return for dismissal of other charges or to the original charge in lieu of a lighter sentence. Sometimes it may involve a quid pro quo to the prosecutor for information leading to other crimes. But New Jersey does not allow plea bargaining in DUI cases. As a result, defense lawyers have no choice except to work to dismiss the DUI case entirely or prove the evidence results in a downgrade to a lesser charge.

According to the article, oftentimes, defense lawyers will find a technicality. For example, lawyers will challenge a blood draw (which now under both state and federal law must be preceded by a warrant) by demanding an explanation as to how it was performed. The results can be suppressed if the draw was not done by a physician or nurse, or the area was cleaned with alcohol instead of iodine. Some of the sample must be made available to the defense to conduct their own independent tests; failure to do so may result in suppression.

Blood results corroborated by field sobriety tests is stronger evidence of DUI; however, in cases involving injuries to a driver, field tests are foreclosed, leaving only the blood tests. If challenged, again, the case can be dismissed. Issues can arise from the accident scene itself, which can also result in a dismissal. As stated, warrants are necessary in order to perform a blood draw. According to William Proetta of Edison, a defense lawyer that was interviewed, “[I]f a person doesn’t consent or is unconscious, you need to call in a telephonic warrant. If emergency workers are asking the driver questions, without having Mirandized him, an attorney would argue those statements can’t be used against him.” Telephonic warrants are faster to obtain and are encouraged by the courts.

Breath tests using an Alcotest have a different set of procedures–all of which can be challenged in a suppression motion. Repair and calibration records may be subpoenaed, and failure by the State to do so may result in a dismissal. Officers conducting the test must get two successful readings and change the mouth pieces between each reading. The person must be observed for 20 uninterrupted minutes and cannot regurgitate or vomit, as this will produce a false reading. No cell phones or electronic devices can be present in the room.

Lawyers say there are many other ways to challenge the results. They recommend that people pulled over for a DUI not refuse the test, because refusal is a separate charge. The challenge becomes a little trickier in that they have to show the officer read the driver “the wrong statement” when asking if they will take the test. Also, the driver has to clearly say “No.” not once, but twice, to be considered refusal and ambiguous answers, such as, “‘I don’t know.’” or “‘I want a lawyer.’” are not enough.

Defense lawyers will employ experts, often former police officers who are trained in the Alcotest, to testify as to what the officers should have done. Also, discovery challenges are commonplace. If the prosecutor fails to produce discovery within 30 days, that can result in a dismissal. Dashcam video must produced as well; but that can be a double-edged sword. It can be used to impeach an officer’s testimony, or in the alternative, prove that the defendant in fact could not stand or was slurring his or her words.

A DUI can be proven by an officer’s observations as well, without the aid of other evidence. According to Ernesto Cerimele, a DUI defense lawyer in Newark,

If the officer’s report says the driver reeked of alcohol and admitted to drinking several beers, that still counts . . . . Even if the blood or Alcotest evidence is thrown out, if the officer’s observations of the driver and the ‘totality of the circumstances’ point to a driver being intoxicated, he can still be found guilty. The harder cases to defend against are frequently those where the officer fully documents everything he heard and observed in his police report.

Finally, the case can be dismissed if a trial is delayed beyond 60 days, pursuant to New Jersey Administrative Office of the Courts’ guidelines. Based on hardship, inequity and the right under the Sixth Amendment to a speedy trial, a defense lawyer can move for dismissal if the prosecution does not have his or her case ready in time. In one case cited by the article, a prosecutor was given an extra 30 days to produce discovery and failed. That resulted in an immediate dismissal by the judge.

Posted by Dana Domenick

Takeda Pharmaceutical Company is Asia’s largest pharmaceutical company and one of the most successful in the world. In the late 1990s, Takeda globally released an antidiabetic drug known as Actos. According to the FDA, the purpose of pioglitazone, the generic name for Actos, is to “improve control of blood sugar in adults with type 2 diabetes mellitus” (fda.gov).

Eli Lilly and Company is an American pharmaceutical company based in Indianapolis, Indiana. Takeda entered a partnership with Eli Lilly in which the American company would market Actos in the United States. In 2011, a New York resident, Terrance Allen and his wife filed a suit against Eli Lilly and Takeda claiming that the drug caused Terrance Allen to develop bladder cancer. The defendant had evidence to prove that the company failed to warn that Actos increases the risk of cancer. The trial took place in Lafayette, Louisiana. The jury sided with the plaintiff and awarded $9 billion in punitive damages. Lilly had to pay $3 billion while Takeda had to pay $6 billion. Both drug companies appealed the verdict and the damages were slashed to $36.8 million.

This suit was just one of the almost 9,000 pending claims toward Takeda made by Americans who had used the drug. All litigants argued that the company failed to warn them that use of the drug heightened their risk of cancer. In April 2014, the Japanese pharmaceutical company came to a settlement of $2.4 billion to cover the damages in all of the suits and costs against them in the United States. According to the New York Times, the damages given to each plaintiff will vary depending on individual factors including the amount of drug consumed and each individual’s physiological history (Andrew Pollack). According to Business Insider, Takeda expressed that the company is not concerned about the large settlement and they will continue to sell the drug.

Dana is a psychology major at Seton Hall University, Class of 2017.

Sources:

http://www.nytimes.com/2014/04/09/business/international/japanese-drug-maker-ordered-to-pay-6-billion-over-cancer-claims.html http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm109136.htm

http://www.businessinsider.com/afp-takeda-warns-of-loss-after–2.4-bn-diabetes-drug-settlements-2015-4

Posted by Shanice Cooper.

On February 15, 2016, in an article by Julie Hirschfield Davis, she details President Obama’s attempts in trying to persuade Congress how important trade is for small business worldwide. The article outlines the importance of small businesses being able to have the global accessibility for trade deals outside of the United States. In hopes of pushing Congress to approve these global trade deals, Obama has been generating various ways to build networking partners to increase business opportunity for more small corporations, such as, “including a series of programs to promote exports from rural areas and help more small and medium-size American businesses sell their goods and services overseas,” says Davis.

In addition to Obama’s local business programs, which allows small businesses to maximize their potential, he has been planning to meet with international firms. The purpose of the meetings will be to have people who have been successful due international trade deals testify to the importance of it: “American workers and businesses have benefited from previous trade deals and stand to gain substantially from pending agreements with Asia and Europe.” Due to the trade deals, much of our everyday living essentials are met. If it was not for Asian or European trade deals would tech remain the same? “Mr. Obama’s team is armed with statistics that it says show that the United States has essentially no choice but to strike trade deals to open more markets to American goods.” However, the only issue the President faces in his attempts to help American business owners are the Congress itself.

While Obama makes a compelling case to the law makers in how the restrictions in international trade is harming American owned businesses, Congress is slowly changing, understanding how strongly the President feels about it. “Getting these trade deals done will benefit our businesses and middle-class workers, not just in rural communities, but across the country,” said Bruce H. Andrews, the Deputy Secretary of Commerce. According to administration officials, they believe the new agreements will help American workers by opening markets to United States products and improving environmental and labor standards around the world. I think it is important for the American economy to be able to continue to negotiate internationally, because we may need it for future generations.

Shanice is a business administration major at Montclair State University, Class of 2016.

One of the causes of action a plaintiff can bring in a product’s liability lawsuit is a defective design claim. General Motors is facing multiple lawsuits over faulty ignition switches installed in the following vehicles: Chevy Cobalt (2005-2010) and HHR (2006-2011); Pontiac G5 (2007-2010) and Solstice (2006-2010); Saturn Ion (2003-2007) and Sky (2007-2010). More than 2.6 million have been recalled.

A Georgia couple who settled a lawsuit with GM for their daughter’s death is suing again on the grounds that GM’s lead design engineer lied when he testified he had no knowledge of any design “changes” to the switches. Their daughter was killed when her 2005 Cobalt slipped into accessory mode, cutting off the engine and causing her to collide with another vehicle. Her family settled based on this information.

But in recent disclosures to the National Highway Traffic Safety Administration and Congress that testimony appears to be false. The company apparently knew about the problem for years. Now, the family has filed another lawsuit claiming they would not have settled if they had known that evidence was concealed. GM denies the accusation.Settlements are contractual, and therefore, considered final once the parties agree to the terms.  Like all contracts, there are certain situations where a settlement agreement would be deemed void.  In this case, plaintiffs would have to convince a judge that they were somehow misled or defrauded by what GM did or said in order for the settlement to be void and the case to proceed.

Healthcare providers, small business, and individuals have filed antitrust lawsuits against Blue Cross and Blue Shield. They allege the 37 independently-owned companies that make up the Blue Cross Blue Shield Association are colluding to avoid competition, raise prices on premiums, and clamp down on payments to providers. Plaintiffs are seeking class action status.

Blue Cross and Blue Shield covers about a third of the nation. In the 1930s, doctors provided insurance under the Blue Shield name and hospitals used Blue Cross. Eventually, the names were trademarked and now companies that use the names operate within an exclusive territory–many in a single state.

According to a Wall Street Journal article, defendant says “its licensing deals simply codify trademark rights that date back decades and ‘do not constitute an agreement to do anything unlawful.’” They claim their model has been around for long time and has withstood government scrutiny. But plaintiffs contend this is cartel-like behavior. The model stifles competition and leads to inflated premiums.

The case will pit antitrust law against trademark rights. Plaintiffs may have a point, especially since at least in one area, California, Blue Cross and Blue Shield plans “compete directly against one another . . . where Anthem Blue Cross battles Blue Shield of California.” That fact appears to cut against defendants’ contention that the deals among licensees are only made to protect trademarks.

A district court judge has declined to dismiss the case, ruling plaintiffs “‘have alleged a viable market-allocation scheme.’”

One of the causes of action a plaintiff can bring in a product’s liability lawsuit is a defective design claim. General Motors is facing multiple lawsuits over faulty ignition switches installed in the following vehicles: Chevy Cobalt (2005-2010) and HHR (2006-2011); Pontiac G5 (2007-2010) and Solstice (2006-2010); Saturn Ion (2003-2007) and Sky (2007-2010). More than 2.6 million have been recalled.

A Georgia couple who settled a lawsuit with GM for their daughter’s death is suing again on the grounds that GM’s lead design engineer lied when he testified he had no knowledge of any design “changes” to the switches. Their daughter was killed when her 2005 Cobalt slipped into accessory mode, cutting off the engine and causing her to collide with another vehicle. Her family settled based on this information.

But in recent disclosures to the National Highway Traffic Safety Administration and Congress that testimony appears to be false. The company apparently knew about the problem for years. Now, the family has filed another lawsuit claiming they would not have settled if they had known that evidence was concealed. GM denies the accusation.Settlements are contractual, and therefore, considered final once the parties agree to the terms.  Like all contracts, there are certain situations where a settlement agreement would be deemed void.  In this case, plaintiffs would have to convince a judge that they were somehow misled or defrauded by what GM did or said in order for the settlement to be void and the case to proceed.

Posted by Daniel Lamas.

Just recently, on May 12 in Philadelphia, an Amtrak train derailed and killed eight people and sent over 200 to the hospital. A question everyone is asking is why the train was going that fast and why it curved. Brandon Bostian, who was the engineer, has agreed to be interviewed and many feel that he will be able to answer some important questions.

Bostian claims that he has no recollection of the accident and denies a lot of claims made about the way he operated the train. It was proven that Bostian was going 106 miles per hour when the train should have only been going at 50 miles per hour. Bostian has refused to talk about that part of the case, as he has a Fifth Amendment right to remain silent, and has only said that by the time he tried to pull the safety brakes, it was too late. Bostian has already gotten a lawyer and is prepared if he is sued. Even though there are not yet any charges against Bostian, he knows that he must prepare himself for what is to come. Mayor Michael Nutter said, “He doesn’t have to be interviewed if he doesn’t want to at this particular stage. . . . That’s kind of how the system works.”

Daniel is a business management and merchandising major at Montclair State University, Class of 2017.

Criminal law is certainly an important part of the study of business law, and Fourth Amendment questions always seem to come up in class.  Students are very interested in learning about when the police can search a person’s car, office or home, or when and where can they arrest someone. Generally, police need a warrant either to search a person’s property or to arrest, unless it falls within a constitutional exception.

Most students do not know that there is a difference between an arrest warrant and a search warrant.  An arrest warrant is an order by the court directing a sheriff, constable or police officer to find and arrest a person who is wanted for a crime.  In contrast, a search warrant permits a law enforcement officer to search a person’s place of residence or other location for evidence of a crime.  An arrest warrant, however, does not permit the police to search a home or building for a person where the police reasonably believes the person named in the arrest warrant may be found without the consent of the owner.  The question then becomes whether there are any other times police may enter certain areas of a third-party home and search for a person even though they are only acting pursuant to an arrest warrant.

In the New Jersey Appellate Division decision, State v. Craft, 425 N.J. Super. 546 (App. Div. 2012), Judge Graves held that exigent circumstances permitted the police to enter a bedroom of a third-party home to arrest defendant for a shooting even though they were operating solely under the authority of an arrest warrant.  The facts are as follows.

The Newark Police Department’s Fugitive Apprehension Team is responsible to dispatch officers to certain addresses where fugitives may be found based on certain intelligence.  James Craft was wanted for a shooting.  Officers arrived at the location noted in the arrest warrant.  It was a three-family dwelling located on South 13th Street.  The police believed that defendant was residing there with family on the second-floor.

The front door to the residence was open, and the police proceeded to the second floor.  The officers were in plain clothes, but at least one of them was wearing a badge around his neck. Defendant’s mother opened the door and permitted the police to enter.  The officers told defendant’s mother that they had a warrant to arrest her son. Defendant’s mother told the police that her son was not there, but offered to call him on her cell phone.  Upon dialing the number, the police heard a phone ringing behind a bedroom door. The officers believed it was defendant’s cell phone ringing and that he would most likely be in the bedroom.

When they opened the bedroom door, they found defendant attempting to escape.  The police testified they saw defendant drop a handgun as he climbed through the window.  They also discovered five vials of cocaine in plain view on the top of a dresser.  Defendant was arrested and charged.  The trial court suppressed the evidence finding that the “coincidence of a phone ringing” was insufficient evidence to justify entry into the bedroom without a search warrant and that the police did not have an “objectively reasonable belief” that “defendant both resided at and would be found at” his mother’s apartment.

On appeal, the court reversed, holding that “there was no constitutional violation by the police, and it was error to suppress the items that were seized. The arrest warrant provided probable cause for defendant’s arrest; the officers entered the apartment with [defendant’s mother’s consent]; and [the police] had reason to believe defendant was present in an adjoining room when a cell phone began ringing after [defendant’s mother] called her son.  In addition, the officers knew the arrest warrant was for ‘a shooting’ and, therefore, defendant was potentially dangerous.  Under these circumstances, there was a compelling need for immediate action to apprehend defendant, and it was impracticable for the officers to obtain a search warrant.  Thus, their entry into the bedroom was objectively reasonable, and the items seized were in plain view.”

Here, the exigency to protect persons inside the home from being shot by a potentially armed individual excused the police from failing to consider the possible “coincidence” of the phone ring. According to one of the officers, upon hearing the phone ring at the time defendant’s mother dialed, he reasoned since people generally stay close to their cell phones, he would find defendant next to his.  As a result, the search into the bedroom was reasonable.

Posted by Shanice Cooper.

In an article by Forbes Magazine entitled, Fake IRS Agent Scam Targets Public, Even Feds, while Identity Theft Tax Fraud is Rampant, Robert Wood outlines the seemingly growing issue of identity theft. This particular article takes a close look at how horrible identity thieves are especially during the inevitable tax season.

Identity theft according to Wikipedia, occurs when someone uses another’s personal identifying information, like their name, social security number, address or credit card number, without their permission or knowledge, to commit fraud or other injurious crimes. Identity thieves use the tax season to their advantage and flourish in it by secretly getting individuals’ personal information. How do they do this? One way is by simply calling an unsuspecting person and asking for their social security number, and bank account data: “The plan is frighteningly simple. Steal Social Security numbers, file tax returns showing false refund claims, and have the refunds electronically deposited.” The person doing the crime would call an individual and impersonate a government official; they would intimidate the person into giving up their personal information. “There is also a massive phone scam in which an impostor claiming to work for the IRS calls and intimidates you. You need to pay right away, and many do.” The article gave two popular ways in which identity thieves often steal information, but there are other ways.

In most cases, the taxpayer finds out that their social security number has been tampered with once they attempt to file a real tax return. However, by the time most people realize that they have been dealing with an imposter, the thief is long gone and often times untraceable. This tax season alone has had over 100,000 people affected by tax scams and is going down as the worst year for scams. “[T]he Treasury inspector general has already received more than 366,000 complaints, more than 3,000 people have been conned out of a total of $15.5 million.” These are outstanding numbers of innocent people who are being victimized by identity theft and tax scamming.

In conclusion, I think identity theft is horrible and no one should have to worry about having their information tampered. I personally know of individuals who have been affected by identity theft and have had to go through incredibly long processes to recover their credit. “In January 2015, a Maryland woman and former bank employee, was sentenced to 87 months in prison for her role in a massive and sophisticated identity theft . . . seeking refunds of at least $40 million.” Once the fraudster is caught they are faced with a number of felonies. In the end, committing the crime is not worth it.

Shanice is a business administration major at Montclair State University, Class of 2016.