NJ: Appearance of impropriety voided search warrant where judge was family attorney of defendant

In a long and well considered opinion, surveying authorities from many jurisdictions, a New Jersey appellate court held that the fact the issuing magistrate of a search warrant was considered the family attorney of the defendant’s family was sufficient to show that the magistrate was not “neutral and detached.” Because this issue is one of first impression, the ruling is prospective only, affording this defendant no relief, but the court made clear this is not harmless error analysis. State v. McCann, 391 N.J. Super. 542, 919 A.2d 136 (2007):

Based on these precepts, we agree with the motion judge that the Municipal Court judge should have recused himself from this warrant application proceeding. We assume, as we must, that he carefully reviewed the Grisso affidavit that revealed defendant’s involvement and that he knew or should have known that this was his former client. Under these circumstances, there was an appearance of impropriety under R. 1:12-1(f). Nevertheless, in State v. Marshall, 148 N.J. 89, 279, 690 A.2d 1, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), the Court made clear that while “the mere appearance of bias may require disqualification” pursuant to R. 1:12-1(f), “the belief that the proceedings were unfair must be objectively reasonable.” Tested by that standard, we conclude that the appearance of partiality was objectively reasonable in this situation.

Having concluded that the Municipal Court judge should not have participated in the application proceeding, we come to the question of remedy. While we generally agree with the thoughtful opinion of the motion judge, we conclude that suppression is not appropriate in this case. Here, defendant makes no assertion of bias on the part of the judge who signed the warrant and the facts concerning the prior relationship suggest none. n4 More importantly, as we have noted, no case until today has expressly condemned the practice in question, which likely occurs only infrequently. As a result, our ruling shall be purely prospective. See State v. Knight, 145 N.J. 233, 249, 678 A.2d 642 (1996) (citing State v. Burstein, 85 N.J. 394, 402-03, 427 A.2d 525 (1981)).

Plaintiff was arrested on an arrest warrant that had been determined proper by two Commonwealth courts, but it declined to grant a motion to dismiss or treat the motion as one for summary judgment until more information was available. Torres-Lopez v. Olivo-Miranda, 478 F. Supp. 2d 182 (D. P.R. 2007).*

A prisoner has no expectation of privacy to be free from a urine test. Davies v. Valdes, 462 F. Supp. 2d 1086 (C.D. Cal. 2006).*

It could not be determined as a matter of law that plaintiff demonstrators were in a private or non-public area when they were arrested for trespassing, so summary judgment was denied. Genia v. Parker, 2007 U.S. Dist. LEXIS 19700 (E.D. N.Y. March 20, 2007).*

Plaintiff’s arrests on various offenses were with probable cause, and the officer’s investigation into other alleged offenses were also with arguable probable cause. Cvicker v. Meyer, 2007 U.S. Dist. LEXIS 19816 (E.D. Wisc. March 20, 2007).*