NJ: Destruction of recording of telephonic SW application requires suppression

State’s destruction of recording of a telephonic warrant application for weapons in a domestic violence case leads to suppression of the search in New Jersey. The prejudice to defendant is because he can’t now challenge the search without it. State v. M.B., 2022 N.J. Super. LEXIS 42 (Apr. 6, 2022):

In considering bad faith applied to defendant’s case, Lacey Township Police Department’s retention policy provided no valid measure of the State’s good faith obligation to preserve evidence it controlled in a criminal prosecution. While the matter began as a domestic violence case, the moment the State chose to bring criminal charges against defendant as a result of a search warrant generated under the PDVA, its obligation to preserve evidence arose. The record does not reflect whether the State took any steps to even acknowledge this obligation. Rather than remand on that issue to affirmatively find bad faith, we vacate because, regardless of bad faith, the destruction of evidence manifestly prejudiced the defendant.

The manifest prejudice or harm from the destruction of evidence is clear—there was no record of the basis for a search warrant, which instructed police to seize weapons from defendant’s home and prompted criminal charges. In New Jersey, an accused has a right to broad discovery after the return of an indictment in a criminal case. R. 3:13-3(b); State v. Scoles, 214 N.J. 236, 252, 69 A.3d 559 (2013); State v. Hernandez, 225 N.J. 451, 461-62, 139 A.3d 46 (2016). Defendant cannot be faulted for not requesting the recording before its destruction—he was not even charged with the weapons offenses until nearly five months after the warrant was issued and about four months after the record was destroyed. Without any record of the telephonic TRO application to review, we do not have a sufficient factual basis by which to determine whether the municipal court judge properly issued the search warrant. This increases the manifest prejudice by denying defendant a fair review of the proceedings. Without a sufficient basis, we conclude the warrant is invalid, as the motion judge should have found.

The manifest prejudice is especially harmful because of the failure to properly reconstruct the record. As such, we reject the State’s suggestion that the record was adequately addressed through reconstruction during the suppression hearing. The absence of a verbatim record “raises a question concerning fairness that must be addressed.” State v. Casimono, 298 N.J. Super. 22, 26, 688 A.2d 1093 (App. Div. 1997) (quoting State v. Izaguirre, 272 N.J. Super. 51, 56, 639 A.2d 343 (App. Div. 1994)).

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