TRO Leading to Search Warrant And Weapons Charges Vacated For Destruction Of Evidence.
Appellate Docket No.: A-2859-18T4
Decided June 5, 2020
Submitted by New Jersey Domestic Violence Law Firm, Hark and Hark
In an unpublished opinion, the Appellate Division of New Jersey reversed a judgment of conviction where a telephonic Temporary Restraining Order (TRO) hearing led to a search warrant for firearms under the Prevention of Domestic Violence Act (PDVA) and the recording of the TRO hearing was destroyed.
In State v. J.L., defendant’s wife sought and telephonically obtained a TRO from a municipal court judge because of an incident that occurred in the home. The telephonic application was recorded. However, the recording was destroyed after ninety days by the police department, consistent with its records retention policy.
The municipal judge issued the TRO along with a warrant to search for a seize weapons under the PDVA, more specifically a Smith & Wesson .357 Magnum, hollow-point bullets, and three shotguns. The next day, defendant was served with a complaint warrant charging one count of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). A Grand Jury indicted defendant eighty-one days later, on June 7, 2017, charging fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39- 3(f), and four counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1).
Defendant moved to suppress the evidenced retrieved from the search, arguing the unavailability of the telephonic record did not comply with procedures of discovery. The trial judge denied the motion to suppress, claiming that the State did not act in bad faith by following the retention policy.
The Appellate Division reversed, ruling that when the State decided to prosecute the defendant criminally, this began their obligation to preserve evidence, and hence they should not have destroyed the telephonic record. The judgement of conviction was reversed and vacated.
This case presents a huge issue faced with defendants of restraining orders. Part of the PDVA, defendants cannot possess firearms. The granting of a TRO, which is ex parte—outside the presence of the defendant – is grounds to temporarily seize weapons, especially where the parties live together, as was the case in J.L. If you find yourself served with a TRO, or you have been charged with a weapons offense, do not hesitate to contact an experienced criminal defense attorney immediately. Your rights are at stake, and you may have little time to act.
At Hark & Hark, we represent clients in Superior Court and municipal court for criminal matters and restraining orders like the present case. We vigorously defend our clients by fighting to ensure prosecutors, police, and even judges follow the law.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Barnegat Township, Barnegat Light Borough, Bay Head Borough, Beach Haven Borough, Beachwood Borough, Berkeley Township, Brick Township, Eagleswood Township, Harvey Cedars Borough, Island Heights Borough, Jackson Township, Lacey Township, Lakehurst Borough, Lakewood Township, Lavallette Borough, Little Egg Harbor Township, Long Beach Township, Manchester Township, Mantoloking Borough, Ocean Gate Borough, Ocean Township, Pine Beach Borough, Plumsted Township, Point Pleasant Beach Borough, Point Pleasant Borough, Seaside Heights Borough, Seaside Park Borough, Ship Bottom Borough, South Toms River Borough, Surf City Borough, Stafford Township, Toms River Township, and Tuckerton Borough.