State v. M.B.
| Decision Date | 06 April 2022 |
| Docket Number | DOCKET NO. A-1363-19 |
| Citation | 471 N.J.Super. 376,273 A.3d 467 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. M.B., Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Joseph E. Krakora, Public Defender, attorney for appellant (Molly O'Donnell Meng, Assistant Deputy Public Defender, of counsel and on the briefs).
Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Dina R. Khajezadeh, Assistant Prosecutor, on the brief).
Before Judges Hoffman, Whipple, and Geiger.
The opinion of the court was delivered by
WHIPPLE, J.A.D.
Defendant M.B. appeals from his conviction for fourth-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7(a). He argues the trial court erred when it denied his motion to suppress evidence seized as a result of a search warrant issued in connection with an ex parte domestic violence restraining order. We reverse and vacate defendant's conviction.
According to Officer Patrick Watkins, on March 8, 2018, shortly before 1:00 a.m., four Lacey Township police officers were called to defendant M.B.’s Forked River home. S.B.,1 a nineteen-year-old daughter of defendant's former girlfriend who lived with defendant, told Officer Watkins that the two had been in an argument and that defendant kicked her in the throat. S.B. told police she had deflected the kick with her hand, and she had complained of pain and a cut on her hand. Police arrested defendant for simple assault and for providing alcohol to a minor, because S.B. appeared intoxicated. Police thereafter asked S.B. if she wanted to seek a temporary restraining order (TRO) against defendant. She said she did, and police took her to the police department to obtain information. S.B. alleged prior verbal abuse by defendant, but she did not report prior physical abuse. S.B. told police that knives and a pistol were in the home, but she did not indicate how she knew about the weapons.
At about 3:00 a.m., Officer Watkins called the Municipal Court judge from police headquarters and gave him a brief synopsis of the incident. During the call with the judge, Officer Watkins was not under oath, nor did the judge take any notes. Officer Watkins gave the phone to S.B. and overheard part of her conversation with the judge. Because Officer Watkins heard S.B. state her name and say, "I do," he assumed the judge had placed S.B. under oath. The judge issued a TRO based on that call and authorized police to search defendant's home for weapons. Police searched defendant's home and recovered numerous knives, but no pistol.
According to Officer Watkins, the police department records all telephone systems. The department recorded this call between S.B. and the Municipal Court judge but subsequently destroyed the recording, pursuant to the Lacey Township Police Department's thirty-one-day record retention policy.
On July 31, 2019, an Ocean County grand jury returned Indictment 19-07-1182-I, charging defendant with one count of second-degree certain person not to possess a weapon ( N.J.S.A. 2C:39-7(b)(1) ) and fifteen counts of fourth-degree certain person not to possess a weapon ( N.J.S.A. 2C:39-7(a) ). Indictment 19-07-1182-I superseded Indictment 18-05-0954-I, returned on May 29, 2018, which charged defendant with one count of second-degree certain person not to possess weapons ( N.J.S.A. 2C:39-7(b)(1) ) and two counts of fourth-degree certain person not to possess weapons ( N.J.S.A. 2C:39-7(a) ).
Defendant moved to suppress evidence seized as a result of the search warrant. Officer Watkins was the only witness who testified at the hearing. After hearing his testimony, the motion judge denied suppression.
On August 19, 2019, defendant pleaded guilty to one fourth-degree count of certain persons not to possess a weapon, N.J.S.A. 2C:39-7(a). On October 11, 2019, the same judge who denied defendant's suppression motion sentenced defendant to time served, which was 530 days in Ocean County Jail.
This appeal followed. Defendant raises the following issues on appeal:
"Appellate courts reviewing a grant or denial of a motion to suppress must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262, 118 A.3d 314 (2015) (citations omitted). We do not, however, defer to the trial court's legal conclusions, which we review de novo. Id. at 263, 118 A.3d 314 (citing State v. Gandhi, 201 N.J. 161, 176, 989 A.2d 256 (2010) ).
When a search warrant is issued under N.J.S.A. 2C:25-28(j), the police are authorized to search for and seize weapons. In State v. Hemenway, our Supreme Court stated that:
In State v. Cassidy, the Court determined that a warrant included in a TRO was invalid because the issuing judge who spoke to the domestic violence complainant by telephone did not swear her in, nor did he record his conversations with her or the officer who took the complaint. 179 N.J. 150, 155, 159, 843 A.2d 1132 (2004), abrogated on other grounds by State v. Edmonds, 179 N.J. 117 (2012). The Court noted "the procedural requirements for a telephonic search warrant are fundamental to the substantive validity of the warrant," and a telephonic authorization will only be deemed the "functional equivalent of a written warrant" when "all of the procedural safeguards ... to assure the underlying reliability of the judge's decision to authorize the search have been met." Id. at 158, 843 A.2d 1132. Given the Court adheres to the principle that "searches and seizures inside a home without a warrant [are] presumptively unreasonable," it is imperative that "[t]he record of the ex parte proceeding ... disclose a proper basis" for the TRO and accompanying warrant. Id. at 164, 843 A.2d 1132 (citation omitted). Cognizant of the principles enunciated in Hemenway and Cassidy, we turn to the motion judge's analysis herein and find that the search warrant was invalid because the repeated procedural failures do not provide a reliable record to assure the Municipal Court judge properly authorized the warrant.
Here, the motion judge was concerned with the destruction of the recording in support of the search warrant but did not find the destruction was in bad faith. Generally, "[w]ithout bad faith on the part of the State, ‘failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ " George v. City of Newark, 384 N.J. Super. 232, 243, 894 A.2d 690 (App. Div. 2006) (quoting Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ); see also State v. Marshall, 123 N.J. 1, 109-10, 586 A.2d 85 (1991) (); State v. Mustaro, 411 N.J. Super. 91, 103, 984 A.2d 450 (App. Div. 2009). However, the motion judge did not address the State's obligation to preserve evidence consistent with the strictures of the Fourth Amendment in cases it prosecutes criminally, nor did he consider the prejudice to defendant by the destruction of evidence. We address both.
When evidence has been destroyed, the court must focus on "(1) whether there was bad faith or connivance on the part of the government ..., (2) whether the evidence ... was sufficiently material to the defense ..., [and] (3) whether [the] defendant was prejudiced by the loss or destruction of the evidence." State v. Hollander, 201 N.J. Super. 453, 479, 493 A.2d 563 (App. Div. 1985) (citations omitted). "In the absence of bad faith, relief should be granted to a defendant only where there is a ‘showing of manifest prejudice or harm’ arising from the failure to preserve evidence." State v Dreher, 302 N.J. Super. 408, 489, 695 A.2d 672 (App. Div. 1997) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 495 A.2d 457 (App. Div. 1985) ), abrogated on other grounds by State v. Brown, 170 N.J. 138, 784 A.2d 1244 (2001).
Although we decline to label a thirty-one-day retention policy as per se bad faith or to find bad faith equating to a per se denial of due process on this record, we have sufficient evidence to consider this policy and application as less than a good faith effort by the State to maintain its constitutional obligations.
Twelve years ago and six years after Cassidy, the New Jersey Attorney General issued guidelines for retaining evidence in criminal cases that required each county prosecutor's office to develop and follow its own evidence destruction authorization policy and procedures, which include procedures regarding both evidence held by the county prosecutor's office as well as evidence held by local law enforcement agencies within its jurisdiction. N.J. ATT'Y GEN. DEP'T OF LAW & PUB. SAFETY & THE N.J. PROSECUTOR'S ASS'N, ATT'Y GEN. GUIDELINES FOR THE RETENTION OF EVIDENCE (Mar. 2010), https://www.nj.gov/oag/dcj/agguide/directives/2010-1evidence-retention.pdf. The record does not reflect whether Ocean County set forth any...
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