COUNSEL'S COLUMN

By Frank Gennaro
Deputy Attorney General
New Jersey Division of Criminal Justice

ONE MORE THING TO CONSIDER WHEN APPLYING FOR A SEARCH WARRANT -
MAKE SURE THE JUDGE DOESN'T KNOW YOUR TARGET

           In late March, the Appellate Division gave law enforcement one extra element to consider while you’re rushing to prepare your search warrant application. The good news is, it’s pretty rare and it’s not your fault anyway. The bad news is, it will still invalidate your search warrant.
           In State v. McCann, the Appellate Division was confronted with a case in which the police had received information from a confidential informant regarding CDS sales at defendant’s residence. The police then made two controlled buys of CDS from the residence. The search warrant application was presented to and granted by the local Municipal Court Judge. CDS was recovered and the defendant was prosecuted.
           In the trial court, the defendant moved for suppression of the evidence on the basis that the judge who issued the search warrant was acquainted with defendant and had provided legal representation to defendant and his family for many years. This is an issue which had not previously been considered by a New Jersey court. The trial judge determined that, under the circumstances, the issuing judge was not a “neutral and detached magistrate” and the evidence was suppressed. The State appealed the suppression to the Appellate Division which ruled that suppression of the evidence was not the proper remedy in this case.
           The appellate court noted that the Fourth Amendment requires that search warrant applications be presented to a neutral and detached magistrate. The Fourth Amendment mandates that warrants be issued only upon the impartial judgment of a judicial officer. However, the Court pointed out that the Exclusionary Rule was developed to deter police misconduct.
           In the McCann case, it was conceded that the search warrant application contained probable cause for the search, and that the police had engaged in no misconduct of any kind. There was no claim that the issuing judge was prejudiced against the defendant. Neither was there any indication that the issuing judge had access to confidential information or of the facts alleged in the warrant application.
           Judges should avoid even the appearance of impropriety. A judge must recuse himself from a case if his failure to do so could give rise to a reasonable belief that the proceeding was unfair. The Appellate Division ruled that, under the circumstances of this case, the Municipal Court Judge should have recused himself. Since there was no evidence of bias against the defendant, the Appellate Division declined to apply the Exclusionary Rule in the McCann case. However, the Court ruled that, in the future, if a defendant makes a credible assertion of partiality on the part of the judge issuing a search warrant, the Court will invalidate the warrant.
           For practical purposes, this is a problem which is beyond the control of the law enforcement officer seeking a search warrant. It is a situation which rarely will arise. One way to make it even less likely to become a problem for you is, whenever possible, to take the warrant application to a Superior Court Judge. Especially in small communities, part-time Municipal Court Judges are more likely to have been acquainted with a particular search warrant target than are Superior Court Judges.