New Jersey Criminal Lawyers Blog

In a recent unpublished New Jersey Appellate Division case, the court discarded a jury verdict on New Jersey Constitutional grounds. (State v. Brown) The 4th Amendment of the United States Constitution protects citizens from illegal search and seizure. The New Jersey Constitution provides even more protections for the citizens of New Jersey.

Whether a police officer violated the constitutionally granted right was a question decided by the trial judge at a pretrial hearing. The defendant was a passenger in a vehicle driven by his uncle. The vehicle was traveling at a high rate of speed and cut across three lanes of traffic with no signal. This prompted a West Deptford Police Officer to pull the vehicle over. The Police Officer testified that once he approached the vehicle, he smelled "raw marijuana" which gave him probable cause as to illegal behavior. He asked all present to exit the car. Upon further observation, the officer noticed a bulge in the waistband of the defendant. When asked about it, the defendant told the officer that it was "weed". In fact it was a bag of marijuana and vials of PCP, which the defendant claimed was for personal use, not distribution. After discovering the illegal drugs, the officer then decided to search the vehicle. He found additional viles of PCP located in a food container. The trial judge erred in not suprressing certain evidence found in the backseat of the car in which defendant was a passenger, which led to the improper admission of defendant's statement. The consequences of these errors result in the entire jury verdict being irretrievably tainted. The case was remanded for a new trial on all charges. (State v. Brown.)

There are exceptions, which would allow an officer to search a vehicle without a warrant. The New Jersey Supreme Court has interpreted the New Jersey Constitution to mean that a warrantless search of a vehicle is permissible when, "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." In this case, the first two requirements were indeed met. The stop was unexpected as it was due to a vehicle traveling at a higher rate of speed than allowed by law. Also, the officer did have probable cause as he smelled marijuana and found contraband in the waist of the defendant's pants.

The third requirement, however, was not met. The Appellate Division was not convinced that the prosecutor presented enough evidence to show "exigent circumstances." Exigent circumstances is a heavily fact based standard which is always analyzed on a case-by-case basis. Here, the prosecution argued that the car was in a dangerous area on the side of the road and that they were worried that the remaining passengers would destroy evidence if they were allowed to return to the vehicle (they were not under arrest.) The court did not believe that the car was in a dangerous location or that the evidence was in jeopardy of destruction as the remaining passengers were cooperative. Furthermore, the Appellate Division believed that the officers could have and should have called in for a warrant.

Continue reading "New Jersey Appellate Court Remands For New Trial On Drug Charges Due To Unconstitutional Search! " »

In a recent New Jersey Appellate Division case, the three Judge panel concluded that cellular telephone location searches are valid according to the Constitution of New Jersey. State of New Jersey v. Thomas W. Earls, SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, DOCKET NO. A-2084-07T4, decided July 11, 2011. According to police officers, a cell phone signal was used to track a suspect from a string of burglaries. The signal could not lead them directly to the suspect; it could only point them in a general area. Once the general area was determined, police then had to move in and physically search for the suspect.

The suspect in this case, as mentioned, was involved in a number of burglaries and police officers were eager to track him down. One of the reported victims told police that the suspect had stolen his cellular phone. The police then obtained a cell phone data warrant and located the phone. The new "owner" of the stolen phone was arrested but was not the suspect the police were seeking. The new owner knew the suspect and told police that he had a storage unit with his quasi-girlfriend where he kept stolen property. Armed with the identity of the sometimes girlfriend, Middletown Police located her for questioning. The girlfriend led police to the storage unit and signed a release for the storage company to break the lock of the storage unit. When inside, Middletown Police found a number of stolen items leading police to obtain a warrant for the suspect's arrest.

Armed with a warrant for the suspects arrest and concern for the suspect's girlfriend's safety, the police began to aggressively search for him. Middletown Police Officers contacted T-Mobile, the suspect's cell phone carrier, and asked them to locate the suspect. T-Mobile stated that they could not provide police with an exact location, but could give them a general area to search. Although there were a series of misses, police eventually located the suspect at a hotel in Howell on Route 9.

Once inside, police officers presented the warrant and made the arrest. Officers later testified that they had taken a flat screen TV from the room as well as other merchandise because it was "in plain view", not requiring a separate warrant. During the "plain view" search, the officers took a suitcase and later asked the suspect if they could go through it. He consented and officers found more stolen goods and an undisclosed amount of marijuana. The suspect was indicted for: burglary (N.J.S.A. 2C: 18-2), theft of moveable property (N.J.S.A. 2C: 20-3(a)), receiving stolen property (N.J.S.A. 2C: 20-3(a)), and possession of marijuana (N.J.S.A. 2C: 35-10(a)(3)).

On appeal, the defendant alleged a constitutional violation of his right to privacy. His main argument was that police officers obtained information from his cell phone carrier, without a warrant, to locate him. The defendant claimed he was the victim of an illegal search and seizure. The Court had to decide if the search was violative of Article I, paragraph 7, of the New Jersey Constitution, which protects citizens of New Jersey from illegal search and seizure. The Court determined that the defendant's rights had not ultimately been violated because (1) the cell phone trace did not lead the police directly to him (only a general area), and (2) the use of a tracking device (in this case a phone) tracked the defendant through public roads and highways where there is no reasonable expectation of privacy. There are a string of cases the court used to affirm their decision that essentially state the same principle. In this case, the Appellate Division upheld the lower courts ruling and the defendant's convictions did in fact stand.

Continue reading "Cell Phone Triangulation NOT Violative of New Jersey Constitution! Call an Experienced NJ Criminal Defense Attorney to Discuss your Case! " »

Recently, Monmouth County Sheriff's Officers went to a home in Middletown to serve an arrest warrant to Raymond Schmidt for failure to appear in court. When the officers arrived at the household where they thought he'd be, Justin Strohmenger answered the door. Mr. Strohmenger denied knowing Mr. Schmidt so the police left. While at the door, however, the police noticed drugs and/or drug paraphernalia in plain sight. The officers quickly sought out and received a search warrant and returned to search the house. During the search, the police officers found a treasure trove of marijuana growing (50 plants) in the basement of the home as well as containers filled with marijuana and other drug paraphernalia. Monmouth County Sheriff's Officers quickly scoured the house with a K-9 unit, placed Mr. Strohmenger under arrest, and confiscated all illegal drugs that they found.

Mr. Strohenger of Middletown in Monmouth County was most likely charged with Possession of Marijuana (N.J.S. 2C: 35-10), Maintaining or Operating a Controlled Dangerous Substance Production Facility (N.J.S. 2C: 35-4), and Manufacturing, Distributing, or Dispensing a Controlled Dangerous Substance(N.J.S. 2C: 35-5). All of these New Jersey drug offenses are very serious and can carry severe prison sentences and heavy fines. Possession of Marijuana over 50 grams (well over that limit in this case) is a crime in the fourth degree. A conviction for a fourth degree crime can carry a fine of up to $25,000.00 and is punishable by up to 18 months in prison. The other two charges, however, are much more severe and are considered first-degree crimes. Maintaining a CDS Production Facility can lead to between 10 and 20 years in prison and a fine of up to $750,000.00 or 5 times the street value of the drugs that were confiscated. The Manufacturing, Distributing, or Dispensing charge also carries a prison sentence of between 10 and 20 years and imposes a fine of up to $300,000.00.

The recent bust is a big one for Monmouth County law enforcement as it shut down a large operation. It is important to remember, however, that Middletown and all Monmouth County law enforcement are also interested in the smaller busts. An Individual can be charged all the way down to the disorderly persons offense of marijuana possession (N.J.S. 2C: 35-10). This disorderly persons offense is reserved for those found with under 50 grams of marijuana. If found with over 50 grams of marijuana or hashish, and individual will face penalties of a fourth degree crime.

There are also New Jersey drug statutes that "step up" drug charges and penalties including: Distribution to Persons Under Age 18 (N.J.S. 2C: 35-8), Controlled Dangerous Substances Near or On School Property (N.J.S. 2C: 35-7), and Distributing, Dispensing, or Possessing Within 500 Feet of Certain Public Property (N.J.S. 2C: 35-7.1). Conviction for any of these crimes can lead to increased jail and prison time and heavier fines.

Continue reading "Middletown Resident Busted! Sheriff's Officers Find 50 Marijuana Plants Growing in Basement!" »

Now that summer is in full swing and the new school year is fast approaching, house parties with large crowds of young adults seem to be a common occurrence. If the party produces a lot of noise so as to distract and disrupt the neighbors from the quiet enjoyment of their own property, the police will inevitably be called to respond to a noise ordinance complaint. The officer's actions during the response call must be put under scrutiny as he/she could have violated 4th Amendment rights protecting against illegal search and seizure.

Recently, in the New Jersey Appellate Division case of State v. Kaltner, a group of Monmouth University students all living together in an off campus house in Long Branch (not affiliated with the University) decided to throw a party. The party became loud enough to disturb the neighbors who responded by calling the Long Branch Police. Once the police arrived and knocked at the door, a partygoer opened the door and invited them to step in. Once inside, Long Branch Police Officers began searching for the residents of the home so that they could instruct them to keep the noise level down. The officers split up and scattered throughout the house. One officer in particular ventured upstairs and began looking around. The lone officer testified that while upstairs he noticed a controlled dangerous substance that he recognized from his training as well as other drug paraphernalia. The officer confiscated the drugs and arrested the individual who owned them. At trial, the judge opined that the search performed by the Long Branch Police Officer was in fact violative of the 4th Amendment's protection against illegal search and seizure thus not allowing the evidence collected as a result of that search to be admitted at trial.

On appeal, the three-judge Appellate Panel agreed and affirmed the lower court ruling with clear deference to the 4th Amendment. Because the Long Branch Police Officers were invited inside the house, the question or issue that the Appellate Division needed to decide was whether or not the Police acted lawfully in fanning out to find the people within the house that were responsible for throwing the party which is how the illegal drugs were discovered.

A number of arguments were raised by the State. In particular, a general "community caretaking" argument posed an interesting debate in the case. The Appellate Division judges deduced that this case turned on whether "the objective reasonableness of the police action in executing their service function" was satisfied. The court ruled that fanning out to find the people responsible for the party was not objectively reasonable because there was no need to do so. There were numerous partygoers that could have sought the responsible party for the officers along with a number of other approaches. The goal of the police visit was to abate the nuisance, not to search the house for the homeowner. Given those circumstances, the judges ruled that the search was unlawful. In a clear manner calculated to avoid a brightline rule, the Court limited its opinion to the case at hand claiming that each search and seizure case must be decided on a case-by-case basis to determine if the police were in fact objectively reasonable.

Continue reading "Are You Facing Criminal Charges From A House Party: Discuss Your Case With An Experienced NJ Criminal Defense Attorney. Recent NJ Appellate Division Opinion May Provide a Defense To Your Charges. " »

In the case of State of New Jersey v. Daniel Twian Brown, the Supreme Court of New Jersey in a decision dated January 25, 2011 held that the police had probable cause to arrest Mr. Brown after he came down from a roof by fleeing from a window at his girlfriend's apartment. Mr. Brown immediately fled to a public area when the police arrived to arrest him at his girlfriend's apartment. The police had sufficient probable cause to believe he committed a series of armed robberies from statements made by his co-defendants. The police did not need an arrest warrant for Mr. Brown in public. The police also had probable cause to arrest Mr. Brown for his conduct in resisting arrest, which they observed. Although there were defective arrest warrants that lacked probable cause, Mr. Brown's post-arrest statements following his lawful arrest were admissible.

The facts of this case involved the arrest of Mr. Brown on January 1, 2005. At the time of the arrest no judicial officer had reviewed the complaints or authorized Mr. Brown's arrest. Ten police officers went to Mr. Brown's girlfriend's apartment. Mr. Brown jumped out a window on to the roof of an adjacent building when the police knocked.

The Court's analysis stated the existing law regarding a warrantless arrest. For an arrest there must be probable cause to believe that a crime has been committed and that the person sought to be arrested committed the offense. The statements of Brown's co-defendants implicating him in the armed robberies met that test.

Absent exigent circumstances or consent, the police must obtain a warrant to conduct an arrest inside a home. To search for the subject of an arrest warrant in the home of a third party, the police must also obtain a search warrant, absent exigent circumstances or consent. Brown transformed the situation from an arrest in a third-party's private apartment, where police would need an arrest and search warrant, to the public arena, where the police could arrest him without a warrant based on probable cause that he committed the armed robbery.

Felony arrests made in public places and supported by probable cause can be valid without a warrant. Brown's conduct in the presence of the police provided an alternative basis to arrest him. After jumping onto an adjacent roof, Brown created a twenty-minute standoff with the police in a public place, posing a risk to the officers and the public. Brown chose not to stand his ground in his girlfriend's apartment and submit to a warrantless arrest, and instead fled and engaged in a public standoff.

The lesson of this case for defendants is not to flee to a public place if you know the police don't have an arrest warrant or search warrant. You have much more protections under the Fourth Amendment search and seizure laws while in your home or a third-party's home than you do in a public place.

Continue reading "Supreme Court Of New Jersey Allows Warrantless Arrest For Man Who Jumps Out Window Onto Roof And Rules His Statements Are Admissible." »

On a cold December night State Police raided an apartment in the 300 block of Richmond Avenue, Point Pleasant Beach, Ocean County, New Jersey. The investigators seized 1.5 lbs. of marijuana; prescription drugs; weapons including brass knuckles, daggers, a machete, metal asp and a BB gun; drug paraphernalia; and $23,350 in cash.

Four individuals were arrested and charged with various drug possession and weapon possession crimes. Two individuals were charged with more serious offenses and released after posting $15,000 full cash bail. These criminal charges will be resolved in the future in New Jersey Superior Court.

The other two individuals were released on criminal summonses for possession of marijuana under 50 grams. These two individuals may be eligible for a conditional discharge in municipal court, if they qualify.

Continue reading "Drugs And Weapons Found At Point Pleasant Beach, Ocean County, New Jersey State Police Raid" »

In a Superior Court of New Jersey trial case, Ender Pompa was initially convicted by a jury of multiple drug charges after 30 pounds of marijuana were found in his possession.
On July 2, 2010, the Superior Court of New Jersey, Appellate Division, reversed the trial court's decision and entered an order suppressing the evidence and for the conducting of a new trial. State v. Pompa, New Jersey Superior Court, Appellate Division, Docket No. A-0139-08T4, approved for publication July 2, 2010.

The facts of the case involved a State Trooper's traffic stop of a tractor-trailer for an invalid registration. During the traffic stop, the Trooper's suspicion was aroused due to an overwhelming smell from roughly 20 air fresheners hanging within the truck's cabin. The Trooper then performed a safety inspection in compliance with federal regulations to make sure all proper safety mechanisms were functioning within the truck's cabin. Upon entering the cabin, the Trooper smelled a strong odor of unburned marijuana. Without first obtaining a warrant, the Trooper entered the cabin's private sleeping quarters and searched a closet where he found several duffel bags containing marijuana. The truck was then impounded and the driver was taken to the State Police barracks to be processed. The driver was cooperative with the Trooper during the traffic stop.

In conducting a safety inspection of a vehicle, a law enforcement officer's search may not exceed the "spatial scope" allowed by regulation; a search of a driver's private belongings is not authorized without a warrant. However, there is an exception where a lawful warrantless search may be justified. State v. Pineiro, 181 N.J. 13, 19 (2004) and State v. Pena-Flores, 198 N.J. 6, 28 (2009). As to the circumstances of this case, a warrantless search would have been valid if: the traffic stop was unexpected; the police had probable cause that the vehicle contained contraband; and exigent (or pressing) circumstances made it unsuitable to seek a warrant. State v. Pena-Flores, 198 N.J. 6, 28 (2009). Some exigent circumstances may include whether it is safe to leave the vehicle unguarded or whether the delay caused by obtaining a warrant would place the Trooper in undue risk. Pena-Flores requires more than probable cause; exigent cicircumstances are also required.

The Appellate Division found that no exigent circumstances existed in this case that would justify a warrantless search of the driver's private quarters. The court reasoned that the Trooper was in possession of the keys to the truck and could have obtained a warrant while he had the truck towed or impounded. The Court reinforced that mere proof of probable cause as to the odor of marijuana during an unexpected vehicle stop is not enough to justify an unauthorized search of a truck driver's sleeping quarters. The Court held that since the Trooper performed an unauthorized warrantless search when no exigent circumstances existed, the search was invalid and the discovery of the contraband could not be admissible evidence at trial; the lower court's decision was reversed and the case was remanded for a new trial with the suppression of evidence as to the finding of marijuana.

This case helped to identify the variety of factors that must be considered that would justify a warrantless search when probable cause exists: the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by a passerby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

If you are arrested for a serious drug offense you need to discuss with an experienced criminal defense attorney these factors and the totality of the circumstances leading to your arrest to determine if the evidence in your case should be suppressed. The case law on warrantless searches continues to evolve as new facts and circumstances are presented to the courts.

Sources:

State v. Pompa, New Jersey Superior Court, Appellate Division, Docket No. A-0139-08T4, approved for publication July 2, 2010.

State v. Pena-Flores, 198 N.J. 6, 28 (2009).

State v. Pineiro, 181 N.J. 13, 19 (2004).

On April 12, 2010, the Superior Court of New Jersey, Appellate Division, decided the case of State v. Germaine A. Handy, Docket No. A-1838-07T4. The Defendant, Germaine A. Handy, appealed after being sentenced by the Superior Court of New Jersey, Law Division, Cumberland County, based on the trial judge's decision denying his motion to suppress evidence found during the search incident to Handy's arrest because the dispatcher who incorrectly informed the arresting officer that there was an outstanding arrest warrant acted unreasonably under the circumstance even though the conduct of the arresting officer himself was reasonable. The Appellate Division ruled that the motion to suppress should have been granted.

The facts of the case involved the defendant being stopped for violating a no riding a bicycle on the sidewalk city ordinance in Millville, New Jersey. The police officers called the dispatcher to check for outstanding warrants. Handy told the police officer his name, which he spelled, and date of birth of March 18, 1974. The dispatcher reported back to the police that Handy had an outstanding warrant. During the search incident to arrest, the police officer discovered crack cocaine and marijuana. After the arrest, the dispatcher advised the police officer there was a discrepancy as to the date of birth on the warrant. Upon return to the police station to verify the warrant, the police officer also found out the first name on the warrant was spelled different than the defendants. The arrest warrant was for a "Jermaine O. Handy" date of birth March 14, 1972 address of Los Angeles, CA.

The basis of the defendant's appeal was that the dispatcher's unreasonable actions should have resulted in the suppression of the drugs found because the exclusionary rule applies when a police dispatcher's actions result in an unreasonable search or seizure in violation of the U.S. Constitution, Amendments IV and XIV, and New Jersey Constitution Article I, Section 10.

The exclusionary rule operates to preclude prosecutorial use of evidence obtained from unlawful searches and seizures. The exclusionary rule does not apply to all instances where mistakes are made in executing a warrant. If the police officer's actions in executing a warrant are reasonable, there is no constitutional violation and thus no need to consider the availability of a good faith exception to the exclusionary rule.

In this case, the police dispatchers conduct was unreasonable. The dispatcher inaccurately reported to the police offier in the field that there was an active warrant for the defendant. If the citizens' right to be free from unreasonable search and seizure is to be vindicated, then the exclusionary rule must be applied beyond the officer in the field and to the police employee who acts unreasonably in supplying critical, but inaccurate or incomplete, information under circumstances such as those in this case.

This case will have an impact on future criminal defense and law enforcement procedures. An experienced criminal defense attorney should always review any available dispatcher logs and report print outs for possible errors. Law enforcement agencies will require more training for police dispatchers to avoid errors. A dispatcher could also be called as a witness in a suppression hearing if the arrest and search in a case is based on information from the dispatcher. Advances in technology should avoid any dispatcher error if the dispatcher can electronicially send to the law enforcement officer in the field the documentation to be reviewed.

Sources:

State v. Handy, Superior Court of New Jersey-Appellate Division, Docket No. A-1838-07T4, published opinion, decided April 12, 2010.

On March 15, 2010, the Superior Court of New Jersey, Appellate Division, decided the case of State v. Brian McGacken, Docket No. A-4527-08T4. The Defendant, Brian McGacken, appealed from the Superior Court of New Jersey, Law Division, Monmouth County, the trial judge's decision denying his motion to suppress evidence that permitted a warrantless entry and search of his home based on the emergency aid exception to the warrant requirement.

The facts of the case involved the State Police knocking on the defendant's door in Farmingdale, Monmouth County to investigate the report of loud screaming from an anonymous 911 call. The defendant opened the door in his bathrobe and his girlfriend later appeared in only a towel to explain that the screaming occurred during loud sex. The State Trooper followed the defendant upstairs, smelled the odor of raw marijuana, and saw in plain view in the defendant's bedroom a number of growing marijuana plants. The defendant later consented to a search of his house where more marijuana, drug equipment, and paraphernalia was found. The defendant's motion to suppress was denied by the trial court, he pleaded guilty to a first-degree charge of maintaining a facility for the production of a controlled dangerous substance in violation of N.J.S.A. 2C:35-4, and was sentenced to ten years in prison with 39 months to be served without parole.

The defendant's argument on appeal is the proofs necessary to satisfy the emergency aid exception to the warrant requirement. In State v. Frankel, 179 N.J. 586 (2004), the New Jersey Supreme Court formulated a three-prong test in order to permit the police entry into a home without a warrant under the emergency aid exception: (1) the law enforcement officer must have an objectively reasonable basis to believe that an emergency requires that he provide immediate assistance to protect or preserve life, or prevent serious injury; (2) his primary motivation for entry into the home must be to render assistance, not to find and seize evidence; and (3) there must be a reasonable nexus between the emergency and the area or places to be searched.

In this case, the defendant argued that the State Troopers lacked an objectively reasonable basis to believe anyone was in need of aid after the defendant and his girlfriend explained the screaming. The Appellate Division concluded that the screaming gave the State Troopers an objectively reasonable basis to believe that a limited investigation was necessary to determine whether anyone else was in the home and in need of aid. Loud sex may have been a plausible source of the screaming, but that explanation was not so reliable that the police acted unreasonably in investigating further. The State Troopers intrusion was reasonable for the purpose of confirming that no other person was in the home and in need of aid.

The emergency aid exception is just one of many exceptions to the warrant requirement under the New Jersey law. Each criminal case involving a search of an individual or home must be carefully evaluated by the criminal defense attorney to determine if law enforcement acted under one of the exceptions to the warrant requirement or conducted an unreasonable search in violation of the constitutional rights of the individual. If a search was unreasonable, a motion to suppress should be filed to defend the charges the client is facing.

The lesson in this case for future defendants is to not mix loud sex and drugs because the emergency aid exception may give law enforcement the right to search your house for illegal drugs. Each case is evaluated under the totality of the circumstances. If this defendant did not have his marijuana plants out in plain view he may have avoided prison because the police are only entitled to a limited search of the home to confirm that no other person was in need of aid.

Sources: State v. McGacken, Superior Court of New Jersey-Appellate Division, Docket No. A-4527-08T4, unpublished opinion, decided March 15, 2010.

State v. Frankel, 179 N.J. 586 (2004).

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.

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.

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.

Source: State v. Jason V. Broom-Smith (A-3-09), decided March 9, 2010, Supreme Court of New Jersey.