A judge issued a search warrant for an apartment in a multiple unit structure but required that the police further investigate which of two apartments was allegedly involved in criminality; he did not require that the police return with this additional, necessary information, but instead issued the warrant on the condition that it not be executed until that additional information was obtained. The appellate court concluded that this process violated the constitutional requirement of the Fourth Amendment and N.J. Const. art. I, ¶ 7, that a search warrant be issued by a “neutral and detached magistrate” because the judge ceded his authority to the discretion of the police. State v. Marshall, 398 N.J. Super. 92, 939 A.2d 813 (2008):
Based upon what was presented at that time, and based upon the issuing judge’s implicit determination that the police had failed to identify the particular apartment within 105 Wayne Avenue that was being used by Daniels, the warrant should not have issued. Therefore, the information obtained from the interrogation of Daniels, gathered after the search warrant issued, was constitutionally irrelevant, and so too are the fact findings made by the trial judge at the suppression hearing about the credibility of Daniels and the State’s witness.
In this same vein, the process established by the judge in the warrant itself–that the police thereafter obtain additional information and evaluate it for probable cause before executing the warrant–starkly violated the “detached and neutral magistrate” requirement of the Fourth Amendment and Article I, paragraph 7 of our state constitution. Only a neutral judge is permitted to issue a warrant, Coolidge v. New Hampshire, 403 U.S. 443, 450, 91 S. Ct. 2022, 2030-31, 29 L. Ed. 2d 564, 573 (1971) (holding that “the whole point of the basic rule … is that prosecutors and policemen cannot be asked to maintain the requisite neutrality with regard to their own investigations”), and only after assessing the information contained within the four corners of the affidavit or other sworn information provided at the time of the application, Schneider, supra, 163 N.J. at 363, 749 A.2d 336. Justice Jackson’s eloquent summary is worth repeating:
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement officers the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.
[Johnson, supra, 333 U.S. at 13-14, 68 S. Ct. at 369, 92 L. Ed. at 440 (footnotes omitted).]
These fundamental concepts were breached here when the issuing judge turned his obligation to find the existence of probable cause over to the discretion of the police.
What should have occurred here–to conform the issuance of the warrant to constitutional principles–was for the judge to decline to issue the warrant when the affiant concededly failed to provide sufficient certainty about the identity of the apartment to be searched. Probable cause would have appeared to have been established to search Daniels and the other premises utilized by Daniels and, if what occurred after Daniels was apprehended was accurately stated at the suppression hearing, the police would have then learned of the particular apartment at 105 Wayne Avenue that held their interest. A return to the judge with a new affidavit–or, assuming time was an issue, through the presentation to the judge of sworn information through the more expeditious modes permitted by court rule–describing in sufficient detail what was learned from their continuing investigation could then have been reviewed by the judge, and the judge could then have determined whether probable cause to search the first floor apartment at 105 Wayne Avenue had been established. If satisfied, the warrant would then have issued, been executed, and the evidence obtained would not have been rendered vulnerable to the exclusionary rule. As is readily apparent, this additional process would have placed no undue burden on law enforcement or on the issuing judge.
Officer’s “use of take down lights to illuminate the area before approaching the vehicle did not constitute a seizure. To hold otherwise would discourage officers from using such lights when necessary for their safety or the safety of others. See Commonwealth v. Cavanaugh, 366 Mass. 277, 282 (1974) (flashlight).” Commonwealth v. Briand, 71 Mass. App. Ct. 160, 879 N.E.2d 1270 (2008). The court then, however, miscites LaFave for the proposition that use of a flashlight is not a seizure when LaFave says it is not a search:
Cases elsewhere indicate that the use of artificial light, without more, does not effect a seizure. For a collection of cases, involving mostly spotlights, permitting such use and finding no seizure, see Campbell v. State, 841 N.E.2d 624, 628 (Ind. Ct. App. 2006). See generally 1 LaFave, Search and Seizure § 2.2(b), at 461 (4th ed. 2004).
Comment: Use of blue lights is a seizure so why isn’t the use of “take down lights”? This is just wrong, and a perfect example of result oriented jurisprudence: If the law doesn’t fit, well, then, just bend it and say it fits.
