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State v. Horton

Decided: June 13, 1985.

THE STATE OF NEW JERSEY, PLAINTIFF,
v.
SUSAN HORTON, DEFENDANT



Kuhlthau, J.s.c.

Kuhlthau

The present matter is a Motion to Suppress evidence brought by the defendant pursuant to Rule 3:5-7.

On December 2, 1984 at approximately 9:00 p.m., Officer Robert Schwarz of the Middlesex Borough Police Department appeared before the Middlesex Municipal Court Judge to apply for a warrant to search the defendant's premises. Based upon the officer's taped testimony, the judge issued an oral search warrant to search the defendant's premises at 408 Decatur Avenue, the defendant's person and the defendant's automobile.

The judge ordered Schwarz to prepare a confirmatory affidavit and a written search warrant. The officer's testimony and the judge's questions and conclusions were tape-recorded.

Schwarz, accompanied by two Middlesex Borough patrolmen executed the oral search warrant later that same night. The officers conducted a search at 313 Decatur Avenue. This address, 313 Decatur Avenue, is the address which was inserted in Schwarz's confirmatory affidavit and the written search warrant, both of which were drafted on December 3, 1984. Apparently, 313 Decatur Avenue is the residence of the defendant and the officer mistakenly gave the judge the wrong address in applying for the search warrant.

The defendant contends that the search of 313 Decatur Avenue was illegal.

The case is controlled by the fact that the premises described at the address given to the issuing Judge was not searched. The warrant authorized a search of 408 Decatur Avenue and the search was conducted at 313 Decatur Avenue. Such a search is illegal because the warrant did not particularly describe the place to be searched.

The Fourth Amendment to both the United States and the New Jersey Constitutions require a search warrant to "particularly describe the place to be searched." The standard

established in Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L. Ed. 757, 760 (1925), for the particularity of the description is whether the "description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended." In applying this test, it has been held that "while a search warrant must describe the premises to be searched with reasonable accuracy, pin-point precision is not demanded." State v. Wright, 61 N.J. 146, 149 (1972). Although the description need not be accurate in every detail, it must "furnish a sufficient basis for identification of the property so that it is recognizable from other adjoining and neighboring properties." State v. Daniels, 46 N.J. 428, 437 (1966). However, it must be remembered that there is a particularity requirement and therefore it is established that "a warrant faulty by reason of its failure to specify the place to be searched should not be approved because only the premises of the defendant were actually searched in pursuance thereof." State v. Ratushny, 82 N.J. Super. 499, 505-506 (App.Div.1964).

In the present case, the State contends that the incorrect street address should not invalidate the warrant because the searched premises "were unmistakably described" by Schwarz in his testimony before the issuing judge and therefore State v. Bisaccia, 58 N.J. 586 (1971), is controlling. Furthermore, the State contends that State v. Daniels, 46 N.J. 428 (1966), is applicable to the present matter because Schwarz was familiar with the premises to be searched and less description was necessary in the warrant. The State's contentions are erroneous.

The facts in Bisaccia and Daniels are plainly distinguishable from those in the present case. It should be noted that the Court may consider only the information actually presented to the issuing Judge and therefore may not consider the affidavit and search warrant, composed subsequent to ...


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