Understand What a Defendant Must Demonstrate to Suppress Evidence Recovered by a Search Warrant

State v. Graham

Appellate Docket No.: A-674-19

Decided March 15, 2022

Submitted by New Jersey New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Division of New Jersey affirmed a denial of a motion to suppress and a Franks hearing after the trial court found defendant’s claim of mistruths of a CDS transaction was not enough under the totality of the circumstances to defeat the search warrant.

In State v. Graham, In September 2016, Detective Michael A. Carullo of the Edison Police Department applied for search warrants for 136 Hillcrest Avenue in Edison, 5205 Buttonwood Court in South Brunswick, a black 2008 Mercedes Benz C300, a white 2007 BMW 6 Series, defendant, and his eventual codefendant Jamie Monroe. After these warrants were executed, Detective Carullo applied for additional warrants in September 2016 to conduct a further search of the Mercedes and the BMW, and for a gray Dodge Ram. Finally, Detective Carullo applied for search warrants in October 2016 for six identified cell phones recovered during previous searches.

The warrants were based on several witnesses. First, a concerned citizen reported the vehicles were distributing heroin out of the rear entrance of a home in Edison. Second, a confidential informant (CI) participated in three heroin transactions with defendant and Monroe. A second CI participated in two more transactions and reported that heroin is stored in the vehicles in hidden compartments.

The warrants were executed and police recovered two ounces of heroin, a bullet-proof vest, and five handguns. After a sniff of the BMW, the canine also alerted to the presence of narcotics in what later were confirmed to be hidden compartments of the car. On the same day, police also executed court-authorized search warrants for defendant, the Mercedes, and the Hillcrest Avenue residence. A canine sniff of the Mercedes indicated the presence of narcotics in the back seat area. Detective Carullo later discovered and forced open a hidden compartment in the front passenger seat back containing a loaded handgun, a loaded magazine, and suspected heroin and fentanyl. At the Hillcrest Avenue residence, police recovered empty, unused glassines used to package heroin and a stamp used to label the bags.

The charges against defendant included: second-degree conspiracy, N.J.S.A. 2C:5-2 (counts two and four); first-degree maintaining a CDS production facility, N.J.S.A. 2C:35-4 (count three); third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count six); second-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2) (count seven); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3), (b)(13) (counts seventeen and eighteen); third-degree possession with intent to distribute on or near school property, (counts nineteen and twenty); seconddegree possession of a firearm while possessing CDS with intent to distribute, N.J.S.A. 2C:39-4.1 (count twenty-one); first-degree unlawful possession of a weapon, (count twenty-two); fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (counts twenty-three and twentyfour); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count twenty-five); and fourth-degree possession with intent to distribute paraphernalia, N.J.S.A. 2C:36-3 (count twenty-six).

Defendant made a motion to suppress the evidence claiming the search warrant contained falsehoods. Specifically, defendant claimed that the search warrant referenced two separate transactions that occurred in one week, when there was only one transaction. The trial court denied the motion to suppress and the Franks hearing, claiming that defendant failed to show sufficient falsehood to have a hearing. There was more than enough evidence independent from the falsehoods – even if defendant were correct – to support probable cause of the search warrants.

Defendant appealed and the Appellate Division affirmed for substantially the same reasons.

This case is important to understand what a defendant must demonstrate to suppress evidence recovered by a search warrant.

A search that is executed pursuant to a warrant is ‘presumptively valid,’ and a defendant challenging the issuance of that warrant has the burden of proof to establish a lack of probable cause ‘or that the search was otherwise unreasonable.'” State v. Boone, 232 N.J. 417, 427 (2017) (quoting State v. Watts, 223 N.J. 503, 513-14 (2015)).

“Courts consider the ‘totality of the circumstances’ and should sustain the validity of a search only if the finding of probable cause relies on adequate facts.” Boone, 232 N.J. at 427 (quoting State v. Jones, 179 N.J. 377, 388-89 (2004)). “[T]he probable cause determination must be . . . based on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously.” Ibid. (alteration in original) (quoting State v. Marshall, 199 N.J. 602, 611 (2009)).

A “search warrant enables law enforcement to search property where there is reason to believe, to a reasonable probability, that the fruits, instrumentalities, or other evidence of a crime may be found.” Chippero, 201 N.J. at 29 n.6. A judge’s “inquiry in respect of a search warrant must assess the connection of the item sought to be seized 1) to the crime being investigated, and 2) to the location to be searched as its likely present location.” Id. at 29.

To obtain a Franks hearing, a defendant “must make a ‘substantial preliminary showing’ of falsity in the” affidavit supporting the issuance of the warrant. State v. Howery, 80 N.J. 563, 567 (1979) (quoting Franks, 438 U.S. at 170). The “defendant cannot rely on allegations of unintentional falsification” but instead “must allege ‘deliberate falsehood or reckless disregard for the truth.'” Ibid. (quoting Franks, 438 U.S. at 171). In addition, “the misstatements claimed to be false must be material to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause.” Id. at 568; see also State v. Goldberg, 214 N.J. Super. 401, 406 (App. Div. 1986) (“[B]efore a defendant is entitled to an evidentiary hearing to challenge the veracity of the contents of a police officer’s affidavit or . . . testimony given in support of a search warrant, it must be demonstrated, among other things, that the allegedly false statements were essential to support a probable cause determination.”).

If you or someone you know have been charged with any indictable offense or disorderly persons involving a search and/or questioning of police, or you have questions regarding probable cause and warrantless searches or searches with a warrant, contact the experienced attorney at Hark & Hark to ensure you are adequately defended, otherwise you could have negative impacts on your case like the defendant above.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.


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 county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Bass River, Beverly, Bordentown City, Bordentown Township, Burlington City, Burlington Township, Chesterfield, Cinnaminson, Delanco, Delran, Eastampton, Edgewater Park, Evesham, Fieldsboro, Florence, Hainesport, Lumberton, Mansfield, Maple Shade, Medford Lakes, Medford Township, Moorestown, Mount Holly, Mount Laurel, New Hanover, North Hanover, Palmyra, Pemberton Borough, Pemberton Township, Riverside, Riverton, Shamong, Southampton, Springfield, Tabernacle, Washington Township, Westampton, Willingboro, Woodland Township, and Wrightstown.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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