No Supression Where Cops Did Not Appear Before Judge to Get Warrant

The Rules of Court generally require that a law enforcement officer who seeks the issuance of a search warrant personally appear before an authorized judge and swear to the contents of his affidavit in support of the warrant. (Rule 3:5-3(a)). In today’s Appellate Division decision in State v. Gioe, the Court ruled that when there is a procedural violation of this Rule, suppression of the evidence is not necessarily required. In Gioe, the police faxed an affidavit to the reviewing municipal court judge. (The application for the search warrant was not being made under exigent circumstances such as would normally justify a telephonic warrant.) The judge reviewed the paperwork and faxed a signed copy of the search warrant to the police. The execution of the warrant resulted in the recovery of criminal evidence.

The defendant’s challenge to the search warrant was based upon a violation of the Rule requiring a personal appearance by the officer seeking the warrant before the reviewing judge. In sustaining the trial court’s order denying suppression of the evidence, the Appellate Division adopted a new, two-part test, holding that before allowing suppression in a case like this, courts should consider:

1.) Whether there was prejudice in the sense that the search might not have occurred had the proper procedure in the Rule been followed and

2.) Whether there is evidence of bad faith by the police as shown by a deliberate disregard for the Rule.

Download a copy of State v. Gioe.

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