On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock and O'Hern. For reversal -- None. The opinion of the Court was delivered by Handler, J.
This case requires the Court to determine the validity of a search that was judicially authorized over the telephone.
On May 15, 1980 Detective James Scales of the Jersey City Police Department, while conducting surveillance at 401 Summit Avenue, Jersey City, observed defendant Guillermo Valencia enter the apartment building and proceed up the stairs and out of sight. About 10 minutes later, Valencia emerged from the building, looked up and down the street, pulled a plastic bag containing a white powder out of his pocket and placed the bag in an envelope. Detective Scales, suspecting that the bag contained a controlled dangerous substance, followed Valencia for a few blocks and then arrested him. Scales seized the plastic bag. He then relayed this information to the surveillance coordinator, Detective Richard Vogel. Detective Vogel proceeded to his office and drew up an affidavit in support of a search warrant. The affidavit stated that an informant had told police that large quantities of illegal narcotics were being stored in and sold from Apartment 34 at 401 Summit Avenue. Further, the affidavit
stated that the police had observed frequent visitors who stayed at the apartment building for brief periods of time. The affidavit also described Detective Scales' observations and actions, including Valencia's arrest.
By this time it was almost midnight on the night of May 15 and finding a judge at that hour proved difficult. With the assistance of the Hudson County Police Department, Detective Vogel was able to reach by telephone a Superior Court judge at his home at the New Jersey shore. In this telephone conversation the detective told the judge that he would like to make an application for a warrant; he then read the judge his affidavit. The affidavit had not been sworn to or notarized nor were its contents formally affirmed by the detective. Just past midnight, the judge orally authorized a search. Later that day, after the execution of the search, the officers appeared at the judge's home where a formal oath was administered, the contents of the affidavit were sworn to and the judge signed a written search warrant.
Based upon the telephone authorization, a search of Apartment 34 at 401 Summit Avenue was conducted, producing evidence leading to the indictment of defendant Valencia and several other individuals for possession of cocaine, possession with intent to distribute and illegal possession of a pen gun. Motions to suppress this evidence were brought before the trial judge who found the search authorized by telephone defective because the application of the detective was not supported by an oath or affirmation. The judge granted the motions to suppress, except with regard to the small amount of cocaine taken from the person of defendant Valencia by Detective Vogel. The Appellate Division affirmed. We granted the State's motion for leave to appeal. 93 N.J. 126 (1982).
This Court has not previously considered the validity of a search authorized by a judge over the telephone. The threshold
question is whether such a search can be regarded as a search pursuant to a warrant under our rules or, alternatively, whether it must be regarded as a form of warrantless search. Important substantive implications and procedural consequences flow from this determination.
A search based upon a warrant is presumed to be valid once the State establishes that the search warrant was issued in accordance with the procedures prescribed by the rules governing search warrants. The burden of demonstrating the invalidity of such a search is placed upon the defendant. The defendant must establish that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable. See State v. Kasabucki, 52 N.J. 110 (1968).
In contrast, a warrantless search is presumed to be invalid. Hence, the State must prove the overall reasonableness and validity of the search. The State must demonstrate that failure to secure a written warrant was justified, namely, that the search falls within a judicially cognizable exception to the warrant requirement. It must also show the existence of probable cause to search. State v. Young, 87 N.J. 132, 141-42 (1982); State v. Patino, 83 N.J. 1, 7 (1980); State v. Ercolano, 79 N.J. 25, 42 (1979); State v. Sims, 75 N.J. 337, 352 (1978).
Our court rules define what constitutes a search warrant and the procedures that must be followed to obtain one. R. 3:5-3 provides:
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. If the judge is satisfied that grounds for granting the application exist or that there is probable cause to believe they exist, he shall date and issue the warrant identifying the property to be seized, naming or describing the person or place to be searched and specifying the hours when it may be ...