NJ adopts standard for additional discovery of a potential Franks violation

New Jersey adopts a specific preliminary showing requirement for additional discovery of a Franks violation. State v. Desir, 2021 N.J. LEXIS 127 (Feb. 9, 2021). From the syllabus:

3. In People v. Luttenberger, the California Supreme Court “adopt[ed] a preliminary showing requirement … that is somewhat less demanding than the” showing Franks requires “for purposes of discovery motions” challenging warrant affidavits “based on statements of an unidentified informant.” 784 P.2d 633, 646 (Cal. 1990). Specifically, the Luttenberger court held that, “[t]o justify in camera review and discovery, preliminary to a subfacial challenge to a search warrant, a defendant must offer evidence casting some reasonable doubt on the veracity of material statements made by the affiant.” Ibid. The court noted that, like requests for a Franks hearing, such discovery requests “should include affidavits supporting defendant’s assertions of misstatements or omissions in the warrant affidavit. Further, a defendant should, if possible, specify the information he seeks, the basis for his belief the information exists, and the purpose for which he seeks it.” Ibid. The Luttenberger court applied those requirements separately to discovery requests and motions for hearings, id. at 647, and then described what steps a trial court should take after a preliminary showing has been made, id. at 648. The Luttenberger court provided guidance about when, and, after redactions, what materials should be disclosed to defendants, to “assure the defendant of a judicial check on possible police misrepresentations, while preventing both unfounded fishing expeditions and inadvertent revelations of the identity of confidential police informants.” See ibid. (pp. 20-25)
4. The Court adopts the Luttenberger standard and will require a defendant to describe with reasonable particularity the information sought in discovery, sustained by a plausible justification “casting a reasonable doubt on the truthfulness of statements made in the affidavit.” Id. at 647. The discovery request should be buttressed by support for assertions of misstatements or omissions in the search warrant affidavit that are material to the determination of probable cause, the basis for believing that the information exists, and the purpose for which the information is sought. Application of this standard and the determination of whether it has been met in an individual case rest in the sound discretion of the trial judge, who will review the appropriately redacted discovery in camera. Only after such in camera review will the judge determine whether the discovery sought contradicts material facts set forth in the affidavit, should therefore be disclosed, and to what limitations or redactions the discovery might be subject. (pp. 26-28)
5. Applying that standard here, the Court first notes that the requested materials do not pertain to the “determination” of the charges against defendant, but rather to uncharged conduct; they are therefore not “relevant” within the meaning of Rule 3:13-3(b)(1), nor are they exculpatory. As a result, the materials were not subject to automatic disclosure under Rule 3:13-3(b)(1). (pp. 28-30)
6. The Court thus considers whether, to ensure the fairness of judicial proceedings, materials identified with reasonable particularity that fall beyond the scope of Rule 3:13-3(b)(1), but may call into question the validity of a search warrant affidavit, are discoverable to defendants who have shown a plausible justification for requesting the materials. Defendant clearly met the standard of reasonable specificity as to the lab report, which was described in the affidavit. Defendant barely met the standard of plausible justification, given the importance of the lab report to the warrant affidavit, the dependence of the charges on the execution of that warrant, and the affiant’s omission of any mention of “buy money” in the affidavit. In contrast, the other requested materials were broadly categorized, would not be amenable to necessary redactions, and were not identified with reasonable specificity. And the only justification offered in support of those materials was defendant’s blanket denial, which is not sufficient. The Court stresses, moreover, that defendant’s preliminary showing as to the lab report does not mean he is guaranteed access to that information. Rather, the court will have to review the report in camera. The ultimate discovery decision resides in the discretion of the trial court. The Court underscores its adherence to the Franks/Howery framework and reemphasizes the importance of preserving the confidentiality of informants. (pp. 30-35)