Legal Brief in the Matter of

City of Jersey City/PAPD v. Damion M. Cocchi

Procedural History

• Monday 5-April-2010, arrested with a charge of NJSA: 2C:18-3B(1). Arresting PAPD Officer
Charles Deprima Jr.
• 1st Court Date 12-April-2010 @ 9AM, Judge Cynthia Jackson, in which Officer Deprima does
not appear; new court date set.
o I verified the mailing address on the JSQ station for the PAPD legal counsel name and
address prior to appearing in court.
• 13-Apr-2010, sent first letter for Discovery Materials, never received an acknowledgment.
• 2nd Court Date appearance 14-June-2010 @ 1PM, Judge Cynthia Jackson. Again Officer
Deprima does not appear in court. I ask the the ADA and the Judge about the status of my
Discovery Materials, letting them know that I have not received a response regarding it yet.
Judge Jackson had me go to the 2nd floor and speak with the Office of Municipal Prosecutor,
where I was advised that I needed to complete another sheet, and submit to their office with a
$25 check.
• 14-June-2010, reprinted my request for Discovery Materials, and mailed with the $25 check to
the Office of the Municipal Prosecutor.
• 27-July-2010, Discovery Materials, mailed back, with none of my requested materials, nor any
acknowledgment/statement as to why it was missing.
• 3rd Court Date appearance 24-August-2010, Judge Ana C Moreira, Officer Deprima finally
appeared in court, along with Sgt. Gonzales (spelling??)
o ADA acknowledges that there were deficiencies from the Office of the Municipal
Prosecutor's office, that did not properly complete my Discovery Materials request.
o PAPD Sgt Gonzales acknowledges that the PAPD, only keeps video evidence
(regardless of its use in criminal proceedings for 22 days, against NJ State Procedure
Data Retention Requirements).
o I was queried by Judge Moreira; as to why I did not consent voluntarily and waive my
4th Amendment Rights. I maintained it was US Constitutionally protected right that I
was not required nor voluntarily wanted to invalidate. Additionally I was also requested
to write a Legal Brief for the Judge with the basis of my arguments.
• 4th Court Date scheduled to hand deliver the Legal Brief for the Judge and ADA review. On 20-
Sep-2010 @ 1PM.
• 5th Court Date scheduled for 1-Oct-2010 @ 1PM, ADA rebuttal to my Legal Brief.
• 6th Court Date scheduled for 15-Oct, but need to reschedule as I will be in Florida and
unavailable.

Legal Issue
What fact or circumstance is at issue that will be the deciding factor in how the court rules on this case?

The US Constitution provides us, both Americans and visitors to America, with strong protections
against invasive police searches additionally the US Supreme Court has recognized the freedom of
movement as a fundamental Constitutional Right. This fundamental Constitutional Right involves a
number of Constitutional issues including the I, IV, V & XIV Amendments.
The PAPD, knowingly violated my IV Amendment Right; “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the persons or things to be seized.” The IV Amendment guarantees that no
police officer is permitted to physically frisk a person's body or a person's personal effects unless there
is evidence to support justification of the search. Additionally the PAPD also knowingly violated my
Right of free ingress into other States, and egress from them.

Where the Founding Fathers of this Nation criminal trying to protect themselves when they inserted the
IV & V Amendments into the Bill of Rights? After all anybody who has not done anything wrong
needs to worry about being searched or forced to testify against themselves. The ills that these
Amendments and Rights prevents are not merely the arbitrariness of police discretion to single out
individuals for attention, but also unwarranted domination and control of the citizenry through fear and
baseless searches and pat-downs by officers of the law. The legal position may be thus summed up: no
police officer has a right to search a bag without a written warrant, based upon oath, save for a felony
see, or upon accusation of someone who saw it, or for a misdemeanor or breach of the peace which he
witnesses. Additionally the Government and its agents may not detain an individual even momentarily
without reasonable and articulate suspicion, with a few exceptions.

Of so much importance to the founders was the personal liberty of the citizens that they incorporated an
amendment in the Constitution to the effect that “the right of the people to be secure in their persons,
papers, and effects, against unreasonable search and seizures, shall not be violated, and no warrant shall
issue but upon probable cause, supported by oath or affirmation.” We have lost sight of much of the
wisdom and free spirit of those days; our ancestors would have looked with horror upon such
infringements of personal liberty as are now constantly made by police officers. Much of the trouble
has arisen from the submissiveness of the citizens to any commands which the officers choose to make,
and it is time that these outrages under the guise of police power should be met with prompt appeals to
the law. They are a constant menace to the welfare of the people, and are opposed in every way to the
spirit of our free institutions.

I became yet another senseless victim of errant officers who abuse their power and choose to violate the
very rights that they are sworn to uphold. The PAPD chose to not only just ignore the law and
subjected me to a body frisk and search of my personal effects without my consent but to do so with
complete disregard of the law, even after advising them when I spoke out about against the illegitimate
abuse of power, I was arrested, and charged with defiant trespass by the rouge-officers-turned-
oppressors. This misconduct lead to the miscarriage of justice and my arrest.

In a society governed by laws and not by individuals, no one should be above the law. This includes
the police. It is a human tragedy when the people who claim to believe in the and take an oath to
uphold the the US Constitution, show little belief in actual practice. These sworn officers who do not
revere our Constitution ought not to be wearing the badge.
Facts of the Case
What happened that brought these parties to court?
a concise statement of the facts from a legal point of view Issue of the case -- what parties had standing, and what specific
concepts and terms were involved.

On the evening of Monday 5-Apr-2010, I needed to be home on either a LIRR 5:22/5:41/5:53 to

Ronkonkoma (all get me home at about 7PM), as my in-laws were sitting my two younger daughters,
while my oldest daughter and wife were at a Girl Scout function. I left work late and was attempting to
make the 5:41, knowing that I may meet up with a fellow commuter (Bob Meadows on the 5:41), I
grabbed his Girl Scout Cookie order (2 boxes Thin Mints) and from my desk and rushed out.

At about 5:20, I attempted to enter the Grove St PATH station, operated by the Public Authority
NYNJPA at the Marin Blvd/Christopher Columbus Dr Entrance, and was asked by 2 PAPD Officers to
submit my bag for bag search.

The PAPD approached me to try and submit to a search to which I refused after the following queries,
and verified that the PAPD was in fact attempting to initiate and investigatory encounter, to which I
ultimately did not give consent to the search.
• Whether I was under arrest?
o To which the officers responded “No”
• Whether I was under suspicion of having done something criminal?
o To which the officers responded “No”
• Can I refuse the search?
o To which the officers responded “Yes”

I was then notified by the officers that if I refused the search then I was not permitted entry in. When I
queried what regulation or law permitted such action, I got the response that if I attempted to reenter
the system I was subject to arrest. As I left I told them good-luck on the future endeavor of illegal
searches much like the Nazi’s did.

In every other case leading up to the evening of Monday 5-Apr-2010 that I have been stopped either by
MTA, NYPD or NY State Troopers, I received answers from no response (stony silence) to none of
your business, to you’ll see when we arrest you. And in each of those cases, which since these Terry
Stops were enacted I have always left the entrance and entered in and proceeded to the next closest
entrance and to re-enter the public transportation system and went on my merry way, giving them the
feel good notion that they did something.

As I proceeded to the leave the station through the entrance that I had originally entered through, I
began my search for the alternate entrance (I had never before used or seen this other entrance and was
unsure of its whereabouts). I also realized I was not going to make the 5:41, by wasting time searching
for the entrance, so as I walked I put the Girl Scout Cookies in my book bag.

I discovered the Christopher Columbus Dr/Grove St. Entrance after having walked one block north and
one block west and entered to await on the Platform to catch the 33rd St PATH back to Herald Square so
that I could get to Penn Station and ultimately home.

Once within the station while walking down the platform back towards the Marin Blvd/Christopher
Columbus Dr Entrance of the platform I passed a PAPD officer, who was apparently sent to verify if I
had re-entered the public transportation system, at which point while waiting for the PATH to 33rd St to
arrive, several other PAPD officers arrived and surrounded me and asked me to step towards a support
beam(on the Newark.JSQ side of the platform), and place my bag down, and proceeded to handcuff
me. I was then walked/escorted to the Christopher Columbus Dr/Grove St. Entrance end of the
platform where I was asked some identification questions, and patted down. They then asked where
my ID was located and retrieved it and began making initial query calls to verify ID, and my status
regarding warrants, etc…

I was then walked/escorted back to the Marin Blvd/Christopher Columbus Dr Entrance and put into a
marked PAPD sedan (parked on Marin Blvd) and brought to Journal Sq for further processing. I was
then subjected to a more invasive search without my consent and asked about identifying scars and
tattoo’s and had my shoelaces & belt removed along with my other personal items. Additionally my
bag was also subject to further search, the officers and a supervisor asked if my bag contained anything
that the officer may hurt himself with while searching the bag, to which I responded that I did have a
multi-tool and that I worked in IT so was a necessary item for me in the bag, which had a pocket-knife
and screwdriver, which should be/and were in the closed positions, when they had finished searching
my bag, the officer asked what I had done with the Girl Scout Cookies that I had been carrying, to
which I responded that they were in the bag, they were unable to find it, and I needed to point out the
location of the compartment (it was missed during the search). (this to be revealed only under cross-
examination of PAPD, so as to prevent them from talking and coordinating there stories before
hand, all officers must be sequestered and without access to the A/V feeds of the court room). I
was then escorted into a holding cell, and while there I was asked mainly questions about my identity if
I had ever been arrested before (never prior to this incident). At sometime around 7PM, I was read my
Miranda Rights and signed that I acknowledgment that I was read/understood them, and at around 8PM
I was offered a phone call, and some food. As a guess at around 8:30 or so, another PAPD officer
asked, he just stated that he was curious, nothing was to come of it, if I also wore glasses and then
when I responded that I do he then reaffirmed his statement that nothing was to come of it, and asked if
I was the person that did the same thing at a “Random Bag Search” that occurred the prior week on 1-
April, to which I responded that I most likely was, not sure how many other people do not consent to
voluntary searches. This occurred at the 33rd St Entrance and asked to submit to a bag search, to which
I responded similarly the same way on that day as I did for this incident:
• Whether I was under arrest? To which the officers responded “No”
• Whether I was under suspicion of having done something criminal? To which the officers
responded “No”
• Can I refuse the search? To which the officers responded “Yes”
I was not told during this incident that I would be arrested if I attempted to enter the system in this case
and left with out further questions from me, but still gave them my common retort good-luck on the
future endeavor of illegal searches much like the Nazi’s did; I then proceeded to exit through the 33rd /
JC Penny entrance and at street level crossed 6th Ave and proceeded back down into the PATH station
from the opposite side of the Bag Check, and entered the PATH Platform. He said that they were sent
to look for me at the 32nd St Entrance, and I told him I always enter back through the closest entrance, I
just crossed 6th Ave. (all of which I imagine was supported when they ran the turnstile checks on my
PATH-Link card, thusly not answering or lying I viewed was to cause more trouble).

As a matter of course as police officers are confronted by an individual who enforces their rights and
questions the legality of an officers actions, the police always respond in an arrogant and bullish
manner, with threats of arrest and further humiliations by an authority of abuse, this case is no different,
when they realized that they had nothing to actual charge me with, as I entered the PATH system legal
with a valid ticket, they tried a run around the law and cite me for the violation of NJSA: 2C:18-3B(1),
so as to try and cover they illegitimate, illegal and unconstitutional attempt to search my bag, and
depriving me of my freedoms forcibly. And as everyone is also aware that the Police have every legal
right to lie about facts in evidence, and what laws exists that gives them the authority in an effort to try
and force a civilian to voluntarily give up his rights, I did not allow this to happen, and as a result the
Officers actions ultimately led to my illegal and unconstitutional arrest, and search of my person and
my personal effects.

I am not anti-police, I am anti-injustice. Policemen are supposed to be keepers of the peace, but they
have enlarged their fancied duties until they seem to have quite forgotten that they are merely citizens
appointed to maintain order, and pose as regulators of the social economy of the streets, even in the
most trifling matters. I question the legality of the action. This submissiveness on the part of the public
has rendered the police, particularly in large cities, arrogant, and these supposed conservators of the
peace are frequent law-breakers and rights violators, by going beyond their authority. That is why I
stand before you on these charges in my quest for justice. I truly hope justice is served and these false
charges are dropped, and that there is some sort of righteous consequences for these officers who
committed the true crime, and helps others live without fear of unreasonable searches and the right of
travel in the future.

Rule of Law & Reasoning

Under what rule of law does this issue fall?
-- a concise summary of the main precedent established, separate from the dicta, or circumstances of the cases

1. Katz v United States, 389 US 347; The Court ruled that “the Fourth Amendment protects
people, not places.” Thus, the Court held that the amendment applied not just in homes, but
wherever a person had “a reasonable expectation of privacy.”

1. Reasonable Expectation of Privacy - if you put it inside of a container or you cover it up,
society’s probably going to give you an expectation of privacy. (as per the
www.fletc.gov Department of Homeland Security training with regards to the 4th
Amendment). Full Transcript: http://www.fletc.gov/training/programs/legal-
division/podcasts/4th-amendment-roadmap-podcasts/4th-amendment-
transcripts/reasonable-expectation-of-privacy-part-1.html

2. Terry v Ohio 392 US 1; that police officers, based on their street experience but not necessarily
probable cause, may stop suspects and pat them down to look for weapons. “Where such a stop
is reasonable..the right to frisk must be immediate and automatic if the reason for the stop is, as
here, an articulable suspicion of a crime of violence.”

3. The Court expanded this category of warrantless searches and seizures in Minnesota v.
Dickerson (1993), ruling that a police officer may also seize contraband, not just weapons,
during a “pat down.” However, such contraband must be obvious through the defendant’s
clothing.

1. Airport Searches. The courts have ruled that, due to the danger of airplane hijacking,
searches of all passengers without probable cause are reasonable, at least using metal
detectors.

2. Sobriety Checkpoints. Law enforcement officers may stop all drivers at roadblocks to
check for drunk driving, as long as individual motorists are not singled out in “spot
 checks.”

3. Consent Searches. Probable cause is not required if a person consents to a search.

Consent must be obtained from the appropriate person

4. Michigan Dept of State Police v Sitz, 496 US 444; No one doubts that entry into courthouses
and particular areas in airports can be conditioned on submitting to questioning and having
one’s luggage and person examined. One might think, logically, that if the police could search
everyone who sought to enter an area that might be a terrorist target, they could search any
sample from the population. But as odd as it might sound (even to Justice Rehnquist), the
administrative search/seizure context embodies the adage: “misery loves company;” police can
stop all vehicles to check for registration, for example, but cannot conduct random stops. The
underlying rationale is roughly that when police discharge community care-taking functions,
they should not be searching for evidence of crime. When they search for evidence of a crime,
they should have whatever level of suspicion the 4th Amendment requires. Thus, Sitz and the
other administrative search cases refuse to allow authorities to single out persons even
randomly.
5. PANYNJ Rules and regulations ARTICLE XVIII.
1. 32:1-19. The port authority is hereby authorized to make suitable rules and regulations not
inconsistent with the constitution of the United States or of either state, and subject to the
exercise of the power of congress, for the improvement of the conduct of navigation and
commerce, which, when concurred in or authorized by the legislatures of both states, shall be
binding and effective upon all persons and corporations affected thereby.

2. 32:1-35.4. Port Authority regarded as performing essential governmental function The

effectuation, establishment, acquisition, construction, rehabilitation, improvement, maintenance
and operation of air terminals by the Port Authority is and will be in all respects for the benefit
of the people of the States of New York and New Jersey

3. No statue authorizing the either the NYNJPA or the PAPD giving them powers without warrant
to search bags.

4. Public authorities are quasi-governmental agencies created for a public purpose. Public
authorities are corporate instruments of the State created by the legislature to further
public interests. Each public authority is governed by a separate board of directors. The
benefits of public authorities include their ability to finance public improvements
without increasing taxes, to assess fees on users to cover the costs of construction or
operation, to avoid the use of broad-based dedicated revenue streams, to finance the
public takeover of private enterprises, to avoid improperly politicizing public services
by removing certain entities and associated operations from the direct control of elected
officials and to provide a more flexible management environment than is typical of
government.

6. Hetado v California, 110 US 516; "The state cannot diminish rights of the people."

7. Miranda v Arizona, 384, US 436, 491; "Where rights secured by the Constitution are involved, there can
be no rule making or legislation which would abrogate them."

8. Miller v US, 230, F 486, at 489; "The claim and exercise of a constitutional right cannot be converted
into a crime."
9. Sherer v Cullen, 481 F 946; There can be no sanction or penalty imposed upon one because of this
exercise of constitutional rights."

10. Davis v Wechsler, 263 US 22, at 24; "The assertion of federal rights, when plainly and reasonably made,
is not to be defeated under the name of local practice."

11. Bennet v Boggs, 1 Baldw 60; "Statutes that violate the plain and obvious principles of common right and
common reason are null and void."

12. Kent v Dulles, 357 US 116; “The right to travel is a part of the ‘liberty’ of which a citizen cannot be
deprived without the due process of law of the Fifth Amendment.”

13. Schactman v Dulles, 96 App DC 287, 225 F2d 938 At 941; "The right to travel is a well-established
common right that does not owe its existence to the federal government. It is recognized by the courts as
a natural right."

14. Shapiro v Thompson, 394 US 618; “right to travel freely from one state to another” as “a virtually
unconditional personal right guaranteed by the Constitution.”

15. Saenz v Roe, 526 US 489; "For the purposes of this case, we need not identify the source of [the right to
travel] in the text of the Constitution. The right of free ingress and regress to and from' neighboring
states which was expressly mentioned in the text of the Article of Confederation, may simply have been
conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution
created."'

16. Paul v Virginia 75 US (8 Wall) 168, 180; ("without some provision . . . removing from citizens of each
State the disabilities of alienage in other States, and giving them equality of privilege with citizens of
those States, the Republic would have constituted little more than a league of States; it would not have
constituted the Union which now exists."

17. We could go on, quoting court decision after court decision; however, the Constitution itself answers our
question - Can a government legally put restrictions on the rights of the American people at anytime, for
any reason? The answer is found in Article Six of the U.S. Constitution:

1. "This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof;...shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or laws of any State to the Contrary not one word
withstanding."

In the same Article, it says just who within our government that is bound by this Supreme Law:

"The Senators and Representatives before mentioned, and the Members of the several State
Legislatures, and all executive and judicial Officers, both of the United States and of the several
States, shall be bound by Oath or Affirmation, to support this Constitution..."

Here's an interesting question. Is ignorance of these laws an excuse for such acts by officials? If
we are to follow the letter of the law, (as they are sworn to do), this places officials who involve
themselves in such unlawful acts in an unfavorable legal situation. For it is a felony and federal
crime to violate or deprive citizens of their constitutionally protected rights. Our system of law
dictates that there are only two ways to legally remove a right belonging to the people. These
are:
1. by lawfully amending the constitution, or

2. by a person knowingly waiving a particular right.