State v. Smith New Jersey Appellate Division case July 5, 2016

Can a defendant who’s home or property is searched subject to a search warrant challenge the validity of the search warrant issued by a Superior Court Judge?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

The US Supreme Court addressed this issue in the matter of Franks v. Delaware, 438 US 154 (1977).  This case ONLY allows defendants challenge the honesty, accuracy and validity of a affidavit used in support of Affidavit by the police to obtain a search warrant from a Superior Court Judge.

In New Jersey our appellate division revisited this issue this week in the case of State v. Smith.  Here the court, relying on the Franks case, ruled, in order to even be entitled to a hearing a defendant must make a substantial preliminary showing that “the police provided the court with false statements knowingly, intentionally, or with reckless disregard for the truth.”

Entitlement to the hearing is not a matter of right and is not allowed solely based on defendant’s “conclusory” statements that the officers’ conclusions, facts, observations are not accurate. Here the defendant’s allegations that the office was essentially lying be accompanied by an offer of proof. Affidavits or sworn and otherwise reliable statements of other witnesses should be furnished to the court, or their absence explain, to justify entitlement to a hearing.  In this case the defendant’s mere assertions in a pleading that the officer misrepresented facts and lied about his “view” of an alleged drug deal was not enough to entitle him to a full ‘Franks’ hearing. The prosecutor’s office filed an interlocutory appeal because the court granted defendants request for the hearing.

The court granted the prosecutors Motion to Bar the hearing because the defendant failed to meet this high evidentiary burden. In addition the court relied upon a) the police officers factual recitation of his observations, b) his extensive prior experience outlined in the affidavit and c) the corroborating facts between the confidential informant and the officer’s observations.  In addition the court identified the very low evidentiary standard the state is required to overcome in order to have search warrant upheld.

This court recognize the US Supreme Court’s refusal to extend the rule of exclusion, barring police officer conduct that ‘may’ misleading the court, beyond instances of deliberate misstatements and those are reckless disregard. The Franks court made clear that it’s ruining does not encompass facts and circumstances where the police mere we have been negligent in checking the facts or recording the facts relevant to a probable cause determination. The Franks hearing is not allowed to be used to pick apart minor technical problems with the warrant application. It is aimed at those warrants obtained through intentional wrongdoing by law-enforcement agents and requires a substantial preliminary showing of intentionally misleading conduct.

This court goes on to recognize the Franks standard that “the clear fact that, if probable cause exists despite bad information in the warrant, the search warrant remains valid and no hearing need be conducted.”  In addition,  in order to be entitled to the Franks hearing, the false and misleading statements must be “material” to the judges determination of probable cause. In other words, if the intentionally misleading statements are deleted from the affidavit, that affidavit must no longer contains facts sufficient to establish probable cause. In addition the reviewing court employees a “totality of the circumstances test” to determine whether the facts presented in the affidavit establish probable cause.

Remember, the New Jersey Supreme Court has explain “probable cause requires nothing more than a practical and commonsense decision whether, given all the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Hence, based on the police officers observations, discussions with the confidential informant, and the experience and the officers training outline in the affidavit, the court found ample probable cause.  As a result, the court found the defendant was not entitled to any Franks hearing.


Jeffrey S. Hark, Esq.

609-471-1959. Cell

856-354-0050 Office

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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