{"id":2232,"date":"2008-08-31T17:10:26","date_gmt":"2008-07-07T08:02:30","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-07-07T08:02:30","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2232","title":{"rendered":"NJ: Violation of state rule on officer’s personal appearance before magistrate does not require suppression"},"content":{"rendered":"

Personal appearance of affiant rule in N.J. is not a constitutional requirement. While violations of the rule are not to be condoned, a violation of the rule only leads to suppression if there is prejudice to the accused. State v. Gioe<\/a>, 950 A.2d 930 (N.J. Super. 2008):<\/p>\n

Secondly, as conceded by the defendant, there is no evidence of bad faith or deliberate disregard of Rule 3:5-3(a) by Moeller. To the contrary, Moeller sought a warrant when, at least arguably, a warrant was not necessary to search defendant’s impounded automobile. See State v. Dickey<\/em>, 152 N.J. 468, 483-84 (1998) (“An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage.”); State v. Sugar<\/em>, 100 N.J. 214, 238 (1985) (describing the inevitable discovery exception to the exclusionary rule). Thus, applying the two-pronged Johnson<\/em> [United States v. Johnson<\/em>, 641 F.2d 652, 656 (9th Cir. 1980)] test, suppression of the marijuana is not appropriate.<\/p>\n

In sum, while we do not condone the procedures utilized by the issuing judge and express no opinion as to whether, in different circumstances, the failure of an affiant to personally appear will require suppression of evidence, we are persuaded that neither the Fourth Amendment of the United States Constitution nor the provisions of Article I, Paragraph 7 of the New Jersey Constitution mandate suppression of the evidence seized from defendant’s automobile. Obviously, there were procedural irregularities in the proceedings to obtain the search warrant that issued, but the record clearly supports the Law Division’s determination that Investigator Moeller’s affidavit established sufficient probable cause to justify the issuance of the search warrant. It is equally clear the requirements of Rule 3:5-3(a) were not intentionally or deliberately disregarded. In fact, Investigator Moeller merely carried out the instructions he received from the issuing judge. Consequently, “[w]e see no threat to Fourth Amendment values,” and we find no legitimate reason to invalidate the warrant. Bisaccia<\/em>, supra, 58 N.J. at 593.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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