Can I get the Affidavit used to get a search warrant of my house?

State vs. Dickenson:  Appellate Division July 5, 2017

Issue:  Can I get the Affidavit used to get a search warrant of my house?  How much discovery is the defendant entitled to at or before the pretrial detention hearing stage?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hary.

In this case the defendant requested a copy of an Affidavit used in Support of a search warrant request at the time of the pre-trial detention hearing.  The state did not produce same so the court denied the State’s request for detention without a hearing. The appellate division stated, “Accordingly, if the State has a good faith position for not producing certain discovery, there should be a disclosure to defendant, defense counsel, and the court. The court should then make a ruling and, if appropriate, direct the production of the relevant discovery. If at that point, the State refuses to provide the discovery, the court can fashion an appropriate sanction and should explain the reasons for the sanctions imposed. Moreover, to the extent that there are legitimate discovery disputes, they need to be addressed within the tight timeframes involved in a pretrial detention application. See N.J.S.A. 2A:162-19(d)(1) (allowing the detention hearing to be continued for up to three days upon the prosecutor’s request or up to five days at the defendant’s request). Consequently, candor and good faith by the State is necessary and an intentional failure to comply with discovery obligations is an appropriate consideration when determining the sanction.”  The court looked to a revised Court Rule which reads:

To balance those interests and aims, the Court identified twelve principles that “should govern the disclosure of evidence at a detention hearing[.]” Id. at 29. Those principles are: “1. . . . [B]ecause the [CJRA] calls for a determination of probable cause and an assessment of the risk of danger, flight, and obstruction, which may include consideration of the nature and circumstances of the offense and the weight of the evidence, discovery should likewise be keyed to both areas. See N.J.S.A. 2A:162-18(a)(1); -19(e)(2); -20(a), (b).

  1. The complaint must be disclosed.
  2. The Public Safety Assessment must be disclosed
  3. The affidavit of probable cause must be disclosed. . . .
  4. Any available PLEIR should be disclosed.
  5. All statements and reports relating to the affidavit of probable cause should be disclosed. . . .
  6. All statements or reports that relate to any additional evidence the State relies on to establish probable cause at the detention hearing should be disclosed. . . .
  7. Statements and reports related to items that appear only in the PLEIR need not be disclosed. . . .
  8. Statements and reports relating to the risk of flight, danger, and obstruction, N.J.S.A. 2A:162-18(a)(1), which the State advances at the hearing, should be disclosed. …
  9. The phrase “statements and reports” refers to items that exist at the time of the hearing. The terms plainly include relevant police reports. . . .
  10. . . . [S]tatements and reports encompass reports that are in the possession of the prosecutor, law enforcement officials, and other agents of the State. . . .
  11. All exculpatory evidence must be disclosed.”

In other words, unless the county prosecutors who are conducting the detention hearing can show a good reason for withholding the Affidavit used to obtain a search warrant, the Affidavit must be produced!

Make sure you have an attorney who knows this, or contact my office to hire my law firm to help you through this difficult time in your life!

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