Our criminal defense law firm handles a large number of cases in the state of New Jersey involving the issue of illegal search and seizure. The majority of these cases involve the possession of illegal drugs, narcotics, and/or illegal guns and firearms (Graves Act defenses). Similar to Pennsylvania, a search done without a warrant is presumed to be unreasonable or illegal unless the State (or Commonwealth) can establish exigent circumstances which are an exception to the warrant requirement. When a warrant is issued however, the search is presumed valid and in these situations an accused person challenging the warrant has the burden to prove that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable (See New Jersey Constitution, Article 1, Paragraph 7 and Pennsylvania Constitution, Article 1, Section A).
AFFIDAVIT OF PROBABLE CAUSE FACTORS
In New Jersey, a magistrate (judge) should only issue a search warrant, if, based on his or her review of the affidavit, probable cause does exist within the “4 corners” of the supporting affidavit of probable cause. To determine probable cause, the court must make a practical, common sense determination whether, given all the circumstances, there is a fair probability that the contraband or evidence of the crime, will be found in a particular place. The judge should not approve the warrant unless he or she is satisfied that there is probable cause to believe that a crime has been committed or is being committed at a specific location or that the evidence of the crime is at that place to be searched. The validity of a search warrant must be assessed on the basis of the information that the officer disclosed or has a duty to discover and disclose to the issuing magistrate.
CONFIDENTIAL INFORMANTS AND SEARCH WARRANTS
It’s important to keep in mind that the majority of search warrants are issued based on police investigation, which is supported by an informant statement. Informant’s statements are hearsay evidence, but the hearsay evidence is admissible for the purposes of reviewing the probable cause for the warrant. If an informant is used during a “totality of circumstances” analysis by a magistrate, police’s basis for showing that the informant is reliable or believable must be included in the application or affidavit for the warrant. In addition to the informant’s veracity, police corroboration is an essential part of the probable cause determination to issue a search warrant. For example, an informant’s statement that drugs are being sold at a particular home which is corroborated by 2 controlled buys out of that home along with a matching phone number traced back to the residence would all support the issuance of a search warrant. If, however, the informant failed to properly describe the place where the drugs were being sold and there was no other corroboration (controlled buy or matching phone numbers) this would be an insufficient basis to find probable cause for the warrant. Check out my article on confidential informants for more information on this issue.
WITNESS STATEMENTS AND PROBABLE CAUSE
If a confidential informant isn’t used, police will need to rely on other corroborating evidence to support a totality of the circumstances analysis. If, for instance, a random person on the street reported to police that a person had a firearm but could provide no other information about the person other than a general description, this may be insufficient evidence for a search warrant. If, however, this random person made a statement to police providing a better description along with details that corroborated the statement, this may be sufficient for probable cause to issue the warrant. Obviously an informant’s statement would probably give a stronger basis for probable cause if police could demonstrate that the informant had been used by police in the past with success. A random person’s statement does not necessarily mean that a court will not find probable cause for the warrant, just that the police will need to provide further support within the supporting affidavit to overcome the issue of illegal search and seizure.
Like Pennsylvania, the tool that a criminal defense lawyer uses to assert the legal search and seizure issue during a pre-trial motion is a Motion to Suppress Evidence based on the New Jersey Constitution and the US Constitution (4th Amendment). For more information on criminal defense strategies in New Jersey I encourage you to keep reading my blog.