Kilkenny, Halpern and Lane. The opinion of the court was delivered by Lane, J.A.D.
The State upon leave granted appeals from an order granting motions of the defendants to suppress evidence seized as a result of a search under a search warrant. Before the motions were heard, defendants obtained an order directing the State to make available to them in accordance with the provisions of R. 3:5-6 "the search warrant issued by the Municipal Court of Teaneck, New Jersey and dated May 14, 1970, for premises known as Linden Court, 8A 2, Teaneck, New Jersey, together with the supporting affidavits and testimony." In response to that order, defendants received copies of what was on file: the search warrant, the return with inventory and the affidavit of Detective Anthony V. Scolpino.
The warrant stated that it was based on "Complaint on oath and in writing having been made before me, one of the Judges of the Municipal Court of Township of Teaneck on
this day by Det. Anthony V. Scolpino." There was no indication on the face of the warrant or in the papers on file that the warrant was based on anything other than the affidavit of Detective Scolpino.
At the hearing on the motions to suppress and at the argument before us, the State conceded that the affidavit was insufficient to justify the issuance of the warrant. The trial judge made specific findings as to the insufficiency of the affidavit with which we agree.
The State sought to sustain the issuance of the warrant by offering testimony from Detective Scolpino as to what he related to the judge at the time he presented the affidavit for the search warrant. The trial judge held that this testimony was inadmissible because of the manner in which the oath was administered.
We agree that the testimony was inadmissible but on a different ground.
Since the search was based upon a warrant, at the hearing to suppress the defendants had the burden of proof. State v. Mark , 46 N.J. 262, 273 (1966); State v. Gaudiosi , 97 N.J. Super. 565, 571 (App. Div. 1967). However, the State conceded the insufficiency of the affidavit and, therefore, had the burden of going forward with the evidence to show the validity of the warrant.
R. 3:5-3 provides in part:
An applicant for a search warrant shall appear personally before the judge who must take his affidavit or testimony before issuing the warrant. The judge may also examine, under oath, any witness the applicant produces, and may in his discretion require that any person upon whose information the applicant relies appear personally and be examined under oath concerning such information.
Where a warrant is based not only upon the affidavit of the applicant but also upon testimony, a transcript or summary of the testimony must be made. R. 3:5-6 states:
The judge who issued the warrant shall attach thereto the return, inventory and all other papers in connection ...