Probable Cause and the Issuance of Search Warrants | New Jersey vs Malkin

Review of State of New Jersey vs Malkin submitted by drug crime attorney, Jeffrey Hark.



1. McCaffrey told Carew that a confidential informant,

2. who previously had been involved in numerous seizures of narcotics,

3. had informed Sulkin that the package contained marijuana,

4. and was going to be delivered to a self-storage facility,

5. The informant had provided the FedEx tracking number for the package and McCaffrey conveyed that information to Carew.

6.  The following morning, Carew conducted surveillance of the storage facility until the FedEx delivery truck arrived.

7.  He followed the driver into the building, and spoke with two of the facility’s employees.

8. Carew viewed the package and confirmed that its tracking number was the same as the number that McCaffrey had provided to him.

9. Carew also saw defendant’s name on the package. One of the employees confirmed that defendant rented a unit at the facility and had been at the site the previous evening.

10.  Defendant was called and told that the package had been delivered.

11.  Defendant said he was on his way to retrieve it. Defendant arrived later.

12.  He identified himself and one of the employees gave him the package.

13.  As defendant was leaving, Carew approached and asked defendant if he was Adam Malkin.

14.  Defendant acknowledged that was his name.

15.  Carew asked defendant if the package belonged to him, and he replied, “Yes.”

16.  Carew informed defendant that the package likely contained contraband.

17.  Defendant told Carew that he wanted his attorney.

18.  He said he did not know what was in the package, and then stated that the package was not his.

19.  Carew pointed to defendant’s name on the package, and defendant told Carew to arrest him if he wished to do so.

20.  Another detective in the ACPO contacted Sergeant Mark D’Esposito (“D’Esposito”) of the Galloway Township Police Department.

21.  D’Esposito had been assigned to that department’s K- 9 unit and worked with a dog named Zito, which had been trained for a number of duties, including the detection of the odor of narcotics.

23.  D’Esposito was told that detectives from the ACPO wanted a narcotics “sniff” of a suspicious package.

24.  He proceeded to the self-storage facility and met the detectives there.

25.  The package with defendant’s name was brought outside, and D’Esposito told the detectives to take it back into the building.

26.  Inside, Zito sniffed the package and gave a positive indication that it was the source of the odor of narcotics.

27.  Carew returned to his office and prepared an affidavit in support of an application for a search warrant.

28.  McCaffrey joined Carew and provided him with additional information he had obtained about defendant. In paragraph four of the affidavit, Carew stated:

On January 31, 2013, a reliable confidential source who has provided information in the past leading to over thirty seizures of narcotics called Special Agent Marc Sulkin of the Drug Enforcement Agency (DEA) Newark Airport Division. The source said a package of marijuana was being delivered by FedEx to 2141 Absecon Boulevard in Atlantic City. The source identified the FedEx tracking number on the package as 801815544028 and the weight of the package to be approximately 26 lbs. Special Agent Sulkin passed this information to Special Agent Joe [McCaffrey] of the DEA located in Atlantic County. Special Agent [McCaffrey] advised this affiant of this information.

29.  Furthermore, in paragraph six of the affidavit, Carew stated that:

Special Agent [McCaffrey] advised [that defendant] was arrested in May of 2012 in Iowa. During that arrest [defendant] was in possession of marijuana and approximately $84,000 in U.S. currency. Special Agent [McCaffrey] was also able to obtain a picture of [defendant] who is the same individual who later arrived to 2141 Absecon Boulevard and identified himself as Adam Malkin.

30.  In addition, in paragraph eight of the affidavit, Carew asserted that:

Sergeant Boruch notified Galloway Township K9 officer Mark [D’Esposito]. Officer [D’Esposito] arrived with his K9 Zito and asked to have the package brought inside. Officer [D’Esposito] said his dog gave a positive indication for the presence of a controlled dangerous substance inside the package. Attached here to is the resume of K9 Officer Mark [D’Esposito] detailing his and his partner’s experience in narcotics detection.

On February 1, 2013, two warrants were issued: one for the search of the package that was delivered to the storage facility, and the other for the search of defendant’s storage unit. A third warrant was issued on February 5, 2013, authorizing a search of defendant’s vehicle. The search of the package revealed approximately fourteen pounds of marijuana.

Defendant was charged with possession of more than fifty grams of marijuana, contrary to N.J.S.A. 2C:35-10a(3), and possession of between five and twenty-five pounds of marijuana, with the intent to distribute the same, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10). Thereafter, defendant filed a motion to suppress the evidence obtained in the search. The judge conducted an evidentiary hearing on the motion.


The basic argument defendant made was the police officer provided false or misleading statements to the Judge in his affidavit which the court relied upon when it found probable cause and executed the Search Warrants which resulted in the drugs found in the car. After the hearing and the facts were fleshed out as outlined above, the court itself opined that had the information in the warrant not included the prior record and the prior conduct that it would not had believed enough information existed to establish probable cause in support of the search warrants. As a result the court suppressed all the evidence obtained as a result of the purposefully misleading affidavits.  The state appealed the court’s decision.


The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. In addition, the New Jersey Constitution provides that a warrant authorizing law enforcement officers to conduct a search may not issue “except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.” N.J. Const. art. I, para. 7.

“When determining whether probable cause exists, courts must consider the totality of the circumstances, and they must deal with probabilities.” State v. Jones, 179 N.J. 377, 389 (2004) (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000)), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001)). See also State v. Novembrino, 105 N.J. 95, 122 (1987) (adopting totality of the circumstances standard). Probable cause “is said to be a reasonable basis for the ‘belief’ that a crime has been or is being committed.” State v. Burnett, 42 N.J. 377, 386 (1964).

An affidavit supporting a search warrant enjoys a presumption of validity. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 682 (1978). To overcome this presumption and challenge the veracity of statements made in an affidavit, a defendant must make a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant. . . .” Id. at 155-56, 98 S. Ct. at 2674, 57 L. Ed. 2d at 672.  “[I]f the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” Ibid. If the defendant successfully establishes at the hearing intentional falsehood or reckless disregard for the truth by a preponderance of the evidence, the false statements should be excised from the affidavit. Id. at 156, 98 S. Ct. at 2674, 57 L. Ed. 2d at 672.  Furthermore, if “the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Ibid. New Jersey courts have adopted the Franks analysis. State v. Howery, 80 N.J. 563, 568 (holding that “New Jersey courts, in entertaining veracity challenges, need go no further than is required as a matter of Federal Constitutional law by Franks v. Delaware[.]”), cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979)). To demonstrate that a statement was made with reckless disregard for the truth, the defendant must show that the statements or omissions went beyond “unintentional falsification in a warrant affidavit.” State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987) (citing Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682). See also State v. Martinez, 387 N.J. Super. 129, 141 (App. Div. 2006) (explaining that, within the context of a Franks analysis, “a good faith mistake is insufficient to strike down [a] warrant.”) (citing Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682).

Reckless Disregard of the Truth

The standard for what constitutes reckless disregard for the truth “means different things when dealing with omissions and assertions[.]” Wilson v. Russo, 212 F.3d 781, 787 (3d Cir. 2000). Omissions are made with reckless disregard for the truth where the affiant omits a fact that “any reasonable person would have known [to be] the kind of thing the judge would wish to know.” Id. at 787-88 (quoting United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir. 1993)). On the other hand, assertions are made with reckless disregard for the truth when “viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Id. at 788 (quoting United States v. Clapp, 46 F.3d 795, 801 n.6 (8th Cir. 1995)).

As stated previously, here, the motion judge found that Carew did not knowingly or intentionally include erroneous or incomplete statements in the affidavit, but concluded that the detective made those statements with reckless disregard for the truth.  The Appellate Division addressed the trial court’s finding regarding the officer’s reckless disregard of the truth as opposed to ‘intentionally misleading/erroneous/ or incomplete statements’ ‘finding’ by the trial judge to suppress the evidence obtained from the officer and ruled: (a) there was no reckless disregard on behalf of the officer, and the ‘totality of the circumstances’ test should have been used by the court for the balance of the evidence generated from the hearing.  Had the court employed the totality of the circumstance test there would have been more than enough facts to support the search warrant application. “We agree with the State that the totality of these circumstances established a well-grounded suspicion that the package in question contained contraband, which was probable cause for the issuance of the search warrant. See State v. Marshall, 199 N.J. 602, 610-11 (2009); State v. O’Neal, 190 N.J. 601, 612 (2007). Although the motion judge stated that, standing alone, the dog’s sniff was not sufficiently reliable to establish probable cause, here Carew’s affidavit provided sufficient facts, in addition to the information regarding the sniff, to support a finding of probable cause. Finally, “The judge erred by concluding otherwise.”



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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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