NJ: Alleged mistaken year in SW affidavit not a mere typo that can be overlooked

The mistaken year here was no mere typo that can be overlooked. It was repeated three times, and it made the probable cause showing stale. State v. Harris, 2026 N.J. Super. LEXIS 35 (Mar. 5, 2026):

In contrast, the purported typographical errors in this case were neither evident nor superfluous. The dates of the controlled buys were critical to the probable cause determination. See State v. Novembrino, 105 N.J. 95, 124 (1987) (invalidating warrant that used only the present tense to refer to drug sales, with no reference to specific dates). If the certification is read literally, the two controlled buys occurred in February 2022, and there was no probable cause to issue the search warrants in March 2023. The State concedes the warrants lacked probable cause if the 2022 dates were correct. However, it argues the issuing judge could permissibly have inferred that “2023” should be read in place of “2022.”

There is no basis for such an inference. The certification used the wrong dates consistently—three times over three pages. Guzman did not once use the correct year as he described the narrative of events, consisting of the initial meeting with the CI and the two subsequent controlled buys. A cursory review of the certification shows it was facially deficient with respect to probable cause because it was based on stale information. Nothing in the four corners of the certification suggests (1) “2022” is a typographical error, and (2) “2023” should be substituted in its place. Nevertheless, the State contends several “contradictions” in the certification make it clear to the reader that the dates were typographical errors.

First, the State contends Guzman could not have participated in the investigation if it had occurred in 2022 because, at that time, he was assigned to the Ocean County Narcotics Strike Force. According to the certification, Guzman began employment with the Lakewood Police Department in 2019, was assigned to the Narcotics Strike Force in January 2022, and was re-assigned to the Lakewood Police Department in January 2023. However, as the trial court noted, there is no reason Guzman could not have participated in this investigation while a member of the Strike Force in 2022. The State also argues that since Guzman acted in an “undercover capacity” while with the Strike Force, he could not have participated in the investigation. But the certification mentions he worked as “a case agent, as well as in an undercover capacity.” Guzman could plausibly have worked on the controlled buys as a case agent rather than undercover. Moreover, it was not the issuing judge’s responsibility to ascertain where Guzman worked at what time and in what capacity.

Second, the State argues the use of the present tense when describing the alleged drug activity—for example, the phrase “currently engaged in the distribution of crack/cocaine”—means the drug activity must have occurred close in time to March 2, 2023, when Guzman signed the certification. This contention is meritless and contrary to the rule announced nearly forty years ago in Novembrino regarding the insufficiency of the present tense in a warrant affidavit. See 105 N.J. at 124.