State v. Desir, 020921 NJSC, A-43-19

Docket NºA-43-19
Opinion JudgeSOLOMON, JUSTICE.
Party NameState of New Jersey, Plaintiff-Appellant, v. Herby V. Desir, a/k/a Johnathan Desir, Defendant-Respondent.
AttorneySteven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Steven A. Yomtov, of counsel and on the briefs). Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attor...
Judge PanelSOLOMON, J. CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-VINA join in JUSTICE SOLOMON's opinion. JUSTICE ALBIN filed a dissent, in which JUSTICES LaVECCHIA and PIERRE-LOUIS join. CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-VINA join in JUSTICE SOLOMON's opinion. JUSTICE...
Case DateFebruary 09, 2021
CourtSupreme Court of New Jersey

State of New Jersey, Plaintiff-Appellant,

v.

Herby V. Desir, a/k/a Johnathan Desir, Defendant-Respondent.

No. A-43-19

Supreme Court of New Jersey

February 9, 2021

Argued October 13, 2020

On certification to the Superior Court, Appellate Division, whose opinion is reported at 461 N.J.Super. 185 (App. Div. 2019).

Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Steven A. Yomtov, of counsel and on the briefs).

Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Alicia J. Hubbard, of counsel and on the briefs).

Patrick F. Galdieri, II, Assistant Middlesex County Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Angelo J. Onofri, Mercer County Prosecutor, President, attorney; Patrick F. Galdieri, II, of counsel and on the brief).

Elyla Huertas argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Elyla Huertas, Alexander Shalom, and Jeanne LoCicero, on the brief).

SOLOMON, J., writing for the Court.

In this appeal, the Court considers whether defendant Herby Desir is entitled to discovery regarding the controlled purchase of narcotics by a confidential informant (CI). Defendant was not charged in connection with that controlled purchase; however, the purchase formed the probable cause for issuance of a search warrant for defendant's home, and execution of the search warrant led to charges against defendant for multiple drug and weapons offenses.

The affidavit submitted by a detective from the Union County Prosecutor's Office (UCPO) in support of the search warrant application stated that a CI, who had previously provided reliable information that led to arrests, had contacted the detective and claimed defendant stored and sold Methylenedioxy-N-ethylcathinone (sometimes referred to as Molly) at his home. According to the affidavit, the detective intercepted two phone calls between the CI and defendant and overheard them discuss the sale of Molly and firearms. The affidavit stated that, during the second call, defendant told the CI to come to his house. The detective followed the CI to defendant's residence and monitored the home until after the CI exited. Afterward, the detective and the CI met at a pre-arranged location, where the CI gave the detective a substance obtained from defendant.

The affidavit stated that the "suspected 'Molly' obtained from [defendant] was submitted to the [UCPO] Laboratory where it . . . tested positive for [Molly, ] a Schedule I controlled dangerous substance." The affidavit did not state that the detective provided the CI with "buy money" with which to purchase the drugs. Based solely on that affidavit, a judge granted a no-knock search warrant for defendant's home.

Defendant moved to suppress the contraband seized during the execution of the warrant and for a Franks hearing, which is a hearing to challenge the veracity of an affidavit upon which a facially valid search warrant is based. Counsel asserted that defendant did not sell Molly from his home. Five months after filing his motion to suppress and for a hearing, defendant moved to compel discovery, seeking the initial investigation report, any proof of money provided to the CI for the controlled buy, laboratory reports, and a transcript or audio recording of the intercepted calls.

The trial court denied defendant's motion to suppress and for a Franks hearing. Six months later, a different judge considered and denied defendant's motion to compel discovery. Defendant pled guilty to possession of Molly with intent to distribute, reserving the right to appeal the denial of his motions.

The Appellate Division reversed the denial of defendant's motion to compel discovery and remanded for further proceedings. 461 N.J.Super. 185, 187 (App. Div. 2019). The court permitted defendant, after receiving discovery, "either to withdraw his plea and proceed to trial . . . or to accept his earlier conviction and sentence." Id. at 194. Even though the indictment did not charge defendant with the sale of narcotics to the CI, the Appellate Division found that, under provisions of Rule 3:13-3(b)(1), the State should have automatically given defendant the laboratory report -- along with any police reports and video and sound recordings -- once the indictment was filed. Id. at 193.

The Court granted certification. 240 N.J. 553 (2020).

HELD: A defendant seeking discovery in connection with a Franks hearing may -- in the trial court's discretion and on showing a plausible justification that casts reasonable doubt on the veracity of the affidavit -- be entitled to limited discovery described with particularity that is material to the determination of probable cause. The Court affirms and modifies the Appellate Division's judgment and remands to the trial court for consideration under the standard adopted in this decision.

1. Rule 3:13-3(b)(1) codifies the criminal defendant's right to automatic post-indictment discovery of the evidence the State has gathered in support of its charges, including "exculpatory information or material" and a list of other "relevant material[s]." To qualify as "relevant material," the evidence must have a tendency in reason to prove or disprove a fact of consequence to the determination of the action. Courts have the inherent power to order discovery beyond the automatic discovery provisions of Rule 3:13-3(b) when justice so requires. But the discovery process is not a fishing expedition or an unfocused, haphazard search for evidence. One significant limit on defendants' discovery rights is the chilling and inhibiting effect that discovery can have on material witnesses. Recognizing that CIs play an indispensable role in police work, New Jersey has a privilege against disclosing the identity of the informant. (pp. 12-14)

2. Defendants seeking to challenge the basis of a search warrant must make an evidentiary showing before a hearing will be granted: they must first establish by a preponderance of the evidence that the allegedly false statement in the affidavit was made either deliberately or in reckless disregard of the truth. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In State v. Howery, the Court adopted and repeated the principles of Franks. 80 N.J. 563, 567 (1979). Under the Franks/Howery standard, a defendant's "attack must be more than conclusory," "supported by more than a mere desire to cross-examine," and "accompanied by an offer of proof." Franks, 438 U.S. at 171. (pp. 15-20)

3. In People v. Luttenberger, the California Supreme Court "adopt[ed] a preliminary showing requirement . . . that is somewhat less demanding than the" showing Franks requires "for purposes of discovery motions" challenging warrant affidavits "based on statements of an unidentified informant." 784 P.2d 633, 646 (Cal. 1990). Specifically, the Luttenberger court held that, "[t]o justify in camera review and discovery, preliminary to a subfacial challenge to a search warrant, a defendant must offer evidence casting some reasonable doubt on the veracity of material statements made by the affiant." Ibid. The court noted that, like requests for a Franks hearing, such discovery requests "should include affidavits supporting defendant's assertions of misstatements or omissions in the warrant affidavit. Further, a defendant should, if possible, specify the information he seeks, the basis for his belief the information exists, and the purpose for which he seeks it." Ibid. The Luttenberger court applied those requirements separately to discovery requests and motions for hearings, id. at 647, and then described what steps a trial court should take after a preliminary showing has been made, id. at 648. The Luttenberger court provided guidance about when, and, after redactions, what materials should be disclosed to defendants, to "assure the defendant of a judicial check on possible police misrepresentations, while preventing both unfounded fishing expeditions and inadvertent revelations of the identity of confidential police informants." See ibid. (pp. 20-25)

4. The Court adopts the Luttenberger standard and will require a defendant to describe with reasonable particularity the information sought in discovery, sustained by a plausible justification "casting a reasonable doubt on the truthfulness of statements made in the affidavit." Id. at 647. The discovery request should be buttressed by support for assertions of misstatements or omissions in the search warrant affidavit that are material to the determination of probable cause, the basis for believing that the information exists, and the purpose for which the information is sought. Application of this standard and the determination of whether it has been met in an individual case rest in the sound discretion of the trial judge, who will review the appropriately redacted discovery in camera. Only after such in camera review will the judge determine whether the discovery sought contradicts material facts set forth in the affidavit, should therefore be disclosed, and to what limitations or redactions the discovery might be subject. (pp. 26-28)

5. Applying that standard here, the Court first notes that the requested materials do not pertain to the "determination" of the charges against defendant, but rather to uncharged conduct; they are therefore not "relevant" within the meaning of Rule 3:13-3(b)(1), nor are they exculpatory. As a result, the materials were not subject to automatic disclosure under Rule 3:13-3(b)(1). (pp. 28-30)

6. The Court thus considers whether, to ensure...

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