Supreme Court of NJ Affirms Search Warrant in Toms River, Ocean County and Sets Procedures for Search Warrants from Local Judges
The Supreme Court of New Jersey decided the matter of State v. Broom-Smith on March 9, 2010. The Court's decision will likely change the way search warrants are obtained by the police and allow for defense attorneys to further challenge searches. The Supreme Court has attempted in this opinion to establish procedures to limit what has become known as “judge shopping”, where a law enforcement officer may obtain a search warrant from a more pro-prosecution judge.
Probable Cause to Obtain a Warrant in NJ
After establishing probable cause through two controlled buys by a confidential informant, the Ocean County Prosecutor's Office investigator sough a search warrant for the defendant's home located in Dover Township (Toms River). The Dover Township Municipal Court was not in session so the warrant application was made to the municipal court judge in neighboring Berkeley Township. The defendant moved to suppress the evidence of the search and requested discovery to determine where the two regularly-assigned Dover Township judges were at the time of the warrant application.The defendant challenged N.J.S.A. 2B:12-6 and Rule 1:12-3 as being overbroad and illegal. The Supreme Court affirmed that both the statute and rule were broad enough to authorize the Berkeley Township municipal court judge to issue the search warrant for defendant's house in Dover Township under the circumstances of the case.
Warrants and Municipal Court Judges
In its opinion, the Court provides a list of factors to be considered to allow for the cross assignment of municipal court judges. First, the law enforcement officer seeking the warrant must attempt to contact the territorially-appropriate judge to determine if the judge is disqualified or unable to hear a case. If the particular court in not being held, this does not necessarily mean the judge is unable to hear the warrant application. Reasons the judge may be unavailable could included being away on vacation, hospitalized or away from his vicinage in furtherance of his private practice. Facts that the judge is too busy with other matters, that his particular municipal court is not in session, that he is home for lunch, or that he is at his local private practice office may not be acceptable to trigger a cross-assignment. The law enforcement officer should also wait a reasonable period of time for the judge to be available, unless the matter is emergent and time is of the essence.
Second, the cross-assignment order should prescribe the sequence to which substitute judges are to be resorted to eliminate any question of judge shopping. Third, when a substitute judge is used, the police should provide a record for the reason the application was not made to the territorially-appropriate court. The Court directed the Municipal Court Practice Committee make recommendations regarding the changes to the rules.
This decision will greatly impact search warrant procedures. Law enforcement officers will now have to provide a step by step timeline in their reports/affidavits stating that the territorial-appropriate judge was not available. Criminal defense attorneys will now request further discovery to determine if judge shopping still occurred. Could a defense attorney call a municipal court judge as a witness in a motion to suppress hearing to determine that he was actually unavailable on the date the warrant was issued? Should municipal court judges be required to keep a daily journal of their whereabouts that would be discoverable by a criminal defense attorney? Should municipal court judges be issued emergency cellular phones to allow law enforcement to contact them 24/7 for a telephonic search warrant? In this age of technology there should be little reason for a judge's unavailability.
Call Villani & DeLuca for Warrant Questions
If you feel you have been a victim of an illegal search and/or seizure, call the experienced criminal defense attorneys of Villani & DeLuca, P.C. today for a free initial consultation. Call (732) 709-7757 today!
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