Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark
State v. Malkin, decided November 24, 2014 by the Appellate Davison does not concern an ordinary narcotics transaction. But it does examine classic 4th Amendment search and seizure issues of law that are important for the readers of this blog to understand.
The 4th Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What is important for the laymen to understand is that in order to search or seize property there must be probable cause. What counts as probable cause is where things can get complex.
In the case at hand a reliable informant told one DEA agent (Agent 1) that a twenty-six pound package of “possible” narcotics was going to be transported via FedEx to Atlantic City. This was related to another DEA agent (Agent 2) who told a detective in Atlantic City (Carew) that the package did in fact contain narcotics and that the person it was addressed to (the defendant in this case) had a prior arrest record for possessing marijuana. Agent 2 also told Detective Carew that during that prior arrest $84,000 of cash was on his person. Carew went to the FedEx warehouse and tracked the package with a matching tracking number to the tip and the name of the defendant. He then called in a K-9 team which confirmed the presence of narcotics in the package. From this information Carew wrote an affidavit in application for a search warrant and it was granted.
During the defendant’s trial he moved to suppress the evidence. The trial judge granted the motion to suppress because two inaccuracies existed in the affidavit for the search warrant. Firstly, the defendant was not previously arrested for marijuana related charges but had simply been issued a summons for possession. Secondly the tip from the informant did not say with certainty that there were drugs in the FedEx package but used the word “possibly.” The judge found that the inaccurate relation of the tip and the fact that the detective never obtained the incipient report for the alleged previous arrest amounted to reckless disregard of the truth by Carew.
Probable cause is determined within the totality of the circumstances so the specific facts of each case must be examined carefully in order to determine whether probable cause exists. In order for a defendant to successfully challenge an affidavit for a search warrant they 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…” Any statements that are found to meet this standard will be removed from the affidavit and the affidavit must be examined based only on what circumstances and facts remain.
States cannot provide less protection than the U.S. Constitution demands but they can extend more. In the case of veracity challenges against affidavits New Jersey does not extend any more protection than the U.S. Constitution demands and has thus adopted the Franks analysis (Franks v. Delaware). According to Franks a good faith mistake cannot strike an affidavit. In this case Carew had no duty to investigate the incident report from the alleged previous arrest, nor did he have any reason not to trust the information provided by Agent 2 who was a federal agent with the DEA. Furthermore even if the affidavit were updated to exclude the past arrest which never happened, and reflect that the tip used the language “possibly” with respect to the presence of narcotics, it would still establish probable cause.
This case reveals the difficulty in striking the probable cause established in an affidavit for a search warrant and the necessity for experienced legal assistance on your side.