STATE OF NEW JERSEY v. M.B.

 

(NOTE: The status of this decision is Published.)

                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-1363-19

STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION
        Plaintiff-Respondent,
                                                    April 6, 2022

v.                                              APPELLATE DIVISION


M.B.,

     Defendant-Appellant.
__________________________

              Submitted March 2, 2022 – Decided April 6, 2022

              Before Judges Hoffman, Whipple, and Geiger.

              On appeal from the Superior Court of New Jersey,
              Law Division, Ocean County, Indictment No. 19-07-
              1182.

              Joseph E. Krakora, Public Defender, attorney for
              appellant (Molly O'Donnell Meng, Assistant Deputy
              Public Defender, of counsel and on the briefs).

              Bradley D. Billhimer, Ocean County Prosecutor,
              attorney for respondent (Samuel Marzarella, Chief
              Appellate Attorney, of counsel; Dina R. Khajezadeh,
              Assistant Prosecutor, on the brief).

        The opinion of the court was delivered by

WHIPPLE, J.A.D.
      Defendant M.B. appeals from his conviction for fourth-degree certain

persons not to possess a weapon,  N.J.S.A. 2C:39-7(a). He argues the trial

court erred when it denied his motion to suppress evidence seized as a result of

a search warrant issued in connection with an ex parte domestic violence

restraining order. We reverse and vacate defendant's conviction.

      According to Officer Patrick Watkins, on March 8, 2018, shortly before

1:00 a.m., four Lacey Township police officers were called to defendant

M.B.'s Forked River home. S.B., 1 a nineteen-year-old daughter of defendant's

former girlfriend who lived with defendant, told Officer Watkins that the two

had been in an argument and that defendant kicked her in the throat. S.B. told

police she had deflected the kick with her hand, and she had complained of

pain and a cut on her hand. Police arrested defendant for simple assault and

for providing alcohol to a minor, because S.B. appeared intoxicated. Police

thereafter asked S.B. if she wanted to seek a temporary restraining order

(TRO) against defendant. She said she did, and police took her to the police

department to obtain information.       S.B. alleged prior verbal abuse by

defendant, but she did not report prior physical abuse. S.B. told police that




1
   We use initials to protect the identity of an alleged victim of domestic
violence. R. 1:38-3(c)(12).


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knives and a pistol were in the home, but she did not indicate how she knew

about the weapons.

      At about 3:00 a.m., Officer Watkins called the Municipal Court judge

from police headquarters and gave him a brief synopsis of the incident.

During the call with the judge, Officer Watkins was not under oath, nor did the

judge take any notes. Officer Watkins gave the phone to S.B. and overheard

part of her conversation with the judge. Because Officer Watkins heard S.B.

state her name and say, "I do," he assumed the judge had placed S.B. under

oath. The judge issued a TRO based on that call and authorized police to

search defendant's home for weapons. Police searched defendant's home and

recovered numerous knives, but no pistol.

      According to Officer Watkins, the police department records all

telephone systems. The department recorded this call between S.B. and the

Municipal Court judge but subsequently destroyed the recording, pursuant to

the Lacey Township Police Department's thirty-one-day record retention

policy.

      On July 31, 2019, an Ocean County grand jury returned Indictment 19 -

07-1182-I, charging defendant with one count of second-degree certain person

not to possess a weapon ( N.J.S.A. 2C:39-7(b)(1)) and fifteen counts of fourth-

degree certain person not to possess a weapon ( N.J.S.A. 2C:39-7(a)).



                                                                        A-1363-19
                                       3 Indictment 19-07-1182-I superseded Indictment 18-05-0954-I, returned on

May 29, 2018, which charged defendant with one count of second-degree

certain person not to possess weapons ( N.J.S.A. 2C:39-7(b)(1)) and two counts

of fourth-degree certain person not to possess weapons ( N.J.S.A. 2C:39-7(a)).

      Defendant moved to suppress evidence seized as a result of the search

warrant. Officer Watkins was the only witness who testified at the hearing.

After hearing his testimony, the motion judge denied suppression.

      On August 19, 2019, defendant pleaded guilty to one fourth-degree

count of certain persons not to possess a weapon,  N.J.S.A. 2C:39-7(a). On

October 11, 2019, the same judge who denied defendant's suppression motion

sentenced defendant to time served, which was 530 days in Ocean County Jail.

      This appeal followed. Defendant raises the following issues on appeal:

            POINT I:   THE WARRANT WAS INVALID
            BECAUSE A) IT DID NOT COMPLY WITH THE
            PROCEDURAL SAFEGUARDS OF RULE 5:7A
            AND B) WAS NOT SUPPORTED BY PROBABLE
            CAUSE. THEREFORE, THE EVIDENCE MUST BE
            SUPPRESSED   AS   THE   RESULT  OF   A
            WARRANTLESS SEARCH.

            The Warrant Was Invalid Because It Did Not Comply
            With The Procedural Safeguards of Rule 5:7A.

            The Warrant Was Invalid Because It Was Issued
            Without Probable Cause.




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      "Appellate courts reviewing a grant or denial of a motion to suppress

must defer to the factual findings of the trial court so long as those findings are

supported by sufficient evidence in the record." State v. Hubbard,  222 N.J.
 249, 262 (2015) (citations omitted). We do not, however, defer to the trial

court's legal conclusions, which we review de novo. Id. at 263 (citing State v.

Gandhi,  201 N.J. 161, 176 (2010)).

      When a search warrant is issued under  N.J.S.A. 2C:25-28(j), the police

are authorized to search for and seize weapons. In State v. Hemenway, our

Supreme Court stated that:

            before issuing a warrant to search for weapons under
            the [Prevention of Domestic Violence Act (PDVA),
             N.J.S.A. 2C:25-17 to -35], a court must find that there
            is (1) probable cause to believe that an act of domestic
            violence has been committed by the defendant; (2)
            probable cause to believe that a search for and seizure
            of weapons is "necessary to protect the life, health or
            well-being of a victim on whose behalf the relief is
            sought[]"; and (3) probable cause to believe that the
            weapons are located in the place to be searched.

            [ 239 N.J. 111, 117 (2019) (quoting  N.J.S.A. 2C:25-
            28(f)).]

      In State v. Cassidy, the Court determined that a warrant included in a

TRO was invalid because the issuing judge who spoke to the domestic

violence complainant by telephone did not swear her in, nor did he record his

conversations with her or the officer who took the complaint.  179 N.J. 150,



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155, 159 (2004), abrogated on other grounds by State v. Edmonds,  179 N.J.
 117 (2012). The Court noted "the procedural requirements for a telephonic

search warrant are fundamental to the substantive validity of the warrant," and

a telephonic authorization will only be deemed the "functional equivalent of a

written warrant" when "all of the procedural safeguards . . . to assure the

underlying reliability of the judge's decision to authorize the search have been

met." Id. at 158. Given the Court adheres to the principle that "searches and

seizures inside a home without a warrant [are] presumptively unreasonable," it

is imperative that "[t]he record of the ex parte proceeding . . . disclose a proper

basis" for the TRO and accompanying warrant. Id. at 164 (citation omitted).

Cognizant of the principles enunciated in Hemenway and Cassidy, we turn to

the motion judge's analysis herein and find that the search warrant was invalid

because the repeated procedural failures do not provide a reliable record to

assure the Municipal Court judge properly authorized the warrant.

      Here, the motion judge was concerned with the destruction of the

recording in support of the search warrant but did not find the destruction was

in bad faith. Generally, "[w]ithout bad faith on the part of the State, 'failure to

preserve potentially useful evidence does not constitute a denial of due process

of law.'" George v. City of Newark,  384 N.J. Super. 232, 243 (App. Div.

2006) (quoting Arizona v. Youngblood,  488 U.S. 51, 57 (1988)); see also State



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v. Marshall,  123 N.J. 1, 109-10 (1991) (applying Youngblood's bad faith

standard); State v. Mustaro,  411 N.J. Super. 91, 103 (App. Div. 2009).

However, the motion judge did not address the State's obligation to preserve

evidence consistent with the strictures of the Fourth Amendment in cases it

prosecutes criminally, nor did he consider the prejudice to defendant by the

destruction of evidence. We address both.

      When evidence has been destroyed, the court must focus on "(1) whether

there was bad faith or connivance on the part of the government . . . , (2)

whether the evidence . . . was sufficiently material to the defense . . . , [and]

(3) whether [the] defendant was prejudiced by the loss or destruction of the

evidence." State v. Hollander,  201 N.J. Super. 453, 479 (App. Div. 1985)

(citations omitted). "In the absence of bad faith, relief should be granted to a

defendant only where there is a 'showing of manifest prejudice or harm' arising

from the failure to preserve evidence." State v Dreher,  302 N.J. Super. 408,

489 (App. Div. 1994) (quoting De Vitis v. N.J. Racing Comm'n,  202 N.J.

Super. 484 (App. Div. 1985)), abrogated on other grounds by State v. Brown,

 170 N.J. 138 (2001).

      Although we decline to label a thirty-one-day retention policy as per se

bad faith or to find bad faith equating to a per se denial of due process on this

record, we have sufficient evidence to consider this policy and application as



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less than a good faith effort by the State to maintain its constitutio nal

obligations.

      Twelve years ago and six years after Cassidy, the New Jersey Attorney

General issued guidelines for retaining evidence in criminal cases that required

each county prosecutor's office to develop and follow its own evidence

destruction authorization policy and procedures, which include procedures

regarding both evidence held by the county prosecutor's office as well as

evidence held by local law enforcement agencies within its jurisdiction. N.J.

ATT'Y GEN. DEP'T   OF   LAW & PUB. SAFETY &     THE   N.J. PROSECUTOR'S ASS'N,

ATT'Y GEN. GUIDELINES      FOR THE    RETENTION   OF   EVIDENCE (Mar. 2010),

https://www.nj.gov/oag/dcj/agguide/directives/2010-1evidence-retention.pdf.

The record does not reflect whether Ocean County set forth any procedures

and whether thirty-one days would follow such procedures, so we decline to

say that thirty-one days to automatically destroy potential evidence is per se

bad faith.

      In considering bad faith applied to defendant's case, Lacey Township

Police Department's retention policy provided no valid measure of the State's

good faith obligation to preserve evidence it controlled in a criminal

prosecution. While the matter began as a domestic violence case, the moment

the State chose to bring criminal charges against defendant as a result of a



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search warrant generated under the PDVA, its obligation to preserve evidence

arose. The record does not reflect whether the State took any steps to even

acknowledge this obligation. Rather than remand on that issue to affirmatively

find bad faith, we vacate because, regardless of bad faith, the destruction of

evidence manifestly prejudiced the defendant.

      The manifest prejudice or harm from the destruction of evidence is

clear—there was no record of the basis for a search warrant, which instructed

police to seize weapons from defendant's home and prompted criminal

charges. In New Jersey, an accused has a right to broad discovery after the

return of an indictment in a criminal case. R. 3:13-3(b); State v. Scoles,  214 N.J. 236, 252 (2013); State v. Hernandez,  225 N.J. 451, 461-62 (2016).

Defendant cannot be faulted for not requesting the recording before its

destruction—he was not even charged with the weapons offenses until nearly

five months after the warrant was issued and about four months after the

record was destroyed. Without any record of the telephonic TRO application

to review, we do not have a sufficient factual basis by which to determine

whether the municipal court judge properly issued the search warrant. This

increases the manifest prejudice by denying defendant a fair review of the

proceedings. Without a sufficient basis, we conclude the warrant is invalid, as

the motion judge should have found.



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                                      9
      The manifest prejudice is especially harmful because of the failure to

properly reconstruct the record. As such, we reject the State's suggestion that

the record was adequately addressed through reconstruction during the

suppression hearing.    The absence of a verbatim record "raises a question

concerning fairness that must be addressed."     State v. Casimono,  298 N.J.

Super. 22, 26 (App. Div. 1997) (quoting State v. Izaguirre,  272 N.J. Super. 51,

56 (App. Div. 1994)).

      In State v. Harris, the trial court held an evidentiary hearing to

reconstruct the record because a warrant and affidavit were improperly filed.

 98 N.J. Super. 502, 503-04 (App. Div. 1968). We affirmed the denial of a

motion to suppress because "[the] [d]efendant ha[d] sustained no prejudice by

the failure to file the affidavit." Id. at 504. The defendant was charged in the

municipal court with possession of a hypodermic needle and a narcotic drug.

Id. at 503. Defendant moved to compel the production of the affidavits upon

which the warrant had been issued. Ibid. The State was unable to produce a

warrant or the affidavit because they had been lost while in police custody

during transmittal between departments. Id. at 503-04.

      At the motion hearing to suppress Harris's evidence, the trial judge heard

the testimony of the magistrate who issued the warrant and that of the police

officer who prepared and signed the affidavit in the presence of the magistrate



                                                                         A-1363-19
                                      10
at the latter's home on the evening of the raid. Id. at 504. Testimony was also

taken of another police officer who had been present at the magistrate's home

when the warrant was issued.          Ibid.   The testimony of these witnesses

established the fact that a warrant was issued and the contents of the warrant

and the supporting affidavit. Ibid.

      Defendant's case differs at the threshold level because the department's

cavalier policy destroyed rather than lost the evidence. Moreover, defendant's

case continues to differ because the motion judge did not reconstruct a reliable

record, which clearly prejudiced defendant's ability to argue against the

validity of the warrant. The motion judge did not instruct the Municipal Court

judge to reconstruct the record. The motion judge adduced testimony from

only Officer Watkins who was not put under oath when he relayed information

to the Municipal Court judge. Officer Watkins only heard S.B.'s side of the

conversation with the judge; the phone call was not on speaker, so Officer

Watkins did not overhear the judge. The Municipal Court judge did not testify

as to why he issued the warrant, nor did he explain why he found S.B. to be

credible.

      Further, under Rule 2:5-3(f), "[i]f a verbatim record made of the

proceedings has been lost, destroyed or is otherwise unavailable, the court or

agency from which the appeal was taken shall supervise the reconstruction of



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the record." When such a record is lost, the trial judge, as a matter of due

process, must reconstruct the record in a manner that "provides a reasonable

assurance of accuracy and completeness." Casimono,  298 N.J. Super. at 26.

Here, that means the Municipal Court judge, the judge who presided over the

missing proceeding, was obligated to reconstruct the record via testimony at

the suppression hearing. Thus, this reconstruction was inconsistent with Rule

2:5-3(f), further prejudiced defendant, and was insufficient to support a finding

of a valid warrant.

      To the extent we have not addressed defendant's remaining arguments,

we are satisfied they are without sufficient merit to warrant further discussion

in a written opinion. R. 2:11-3(e)(2).

      Reversed and conviction vacated.




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