NJ: Trial court misapplied Franks without def even pleading Franks on an arrest warrant

The trial court erred in excising part of the affidavit for arrest on its description of the video of a shooting. Defendant chose not to file a Franks motion, and the video description shows that a person fired a gun but who it was couldn’t be said. It didn’t exonerate or inculpate defendant. Skipping the steps under Franks, “the judge performed judicial surgery without any authority for doing so.” State v. Pinson, 2019 N.J. Super. LEXIS 172 (Dec. 2, 2019):

On the record before us, we conclude the motion judge mistakenly excised the statement that Pinson was captured shooting at a car on video surveillance from the affidavit, without first requiring defendants to demonstrate the statement was “knowingly and intentionally” false or made with “reckless disregard for the truth.” Franks, 438 U.S. at 155-56. The motion judge skipped the steps required under Franks, as adopted by Howery, and improvidently excised the statement. In effect, the judge performed judicial surgery without any authority for doing so.

We also disagree that the video conclusively established Pinson is not the shooter. Apparently, no one is identifiable on the video. But, Pinson’s cell phone was “in the area at the time of the shooting[.]” And, the affiant did not affirmatively state that he positively identified Pinson on the video. Although the probable cause statement is undeniably thin, the affiant set forth sufficient probable cause that Pinson had committed the offenses charged. Considering “the reasonable probabilities that flow[ed] from the evidence submitted in support of [the] warrant application[,]” Chippero, 201 N.J. at 27, defendants did not demonstrate the arrest warrant was invalid.