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State v. Brown

December 03, 2001

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VIOLET BROWN, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Coleman, J.

Argued April 30, 2001

Chief Justice Poritz PRESIDING

DISSENTING OPINION BY Justice Stein

On certification to the Superior Court, Appellate Division.

Defendant appeals her conviction, under N.J.S.A. 2C:35-7, of third-degree possession of marijuana with intent to distribute in a school zone. This appeal raises two issues: whether a confidential informant's statements to the police should have been admitted as declarations against interest, and whether defendant was entitled to a severed trial based on Rule 3:15-2. The trial court ruled against defendant on both issues and the Appellate Division affirmed. We agree and affirm.

I.

On July 27, 1994, a confidential police informant told Officer Maurice Crosby, of the Trenton Police Department's Vice Enforcement Unit, that "Sharon Spence and Violet Tomlinson are selling large quantities of Marijuana from their Second Floor Apartment at 154 Hamilton Avenue." During the week of July 24, 1994 the informant cooperated with the Trenton police to carry out the first of two controlled buys of marijuana from Spence. On August 1, 1994 the informant advised Officer Crosby that "Sharon Spence and Violet Tomlinson are continuing to sell Marijuana from their Second Floor Apartment at 154 Hamilton Avenue." In addition, the informant reported that "the two (2) women have started selling Crack Cocaine and powder Cocaine from the residence." The informant made a second controlled buy of marijuana from Spence during the week of July 31, 1994.

On August 4, 1994 Officer Crosby obtained a search warrant for Spence and Tomlinson's apartment. In his affidavit for the search warrant, Crosby stated that the confidential informant was reliable, noting that the informant had provided information in the past that led to fifteen arrests. When the search warrant was executed on August 5, 1994 at about 5:48 a.m., defendant and co-defendant Spence were present in their respective second-and third-floor bedrooms. The kitchen was located on the second floor. The following quantities of CDS were recovered: 18.97 grams of cocaine in the freezer section of the refrigerator; 3.41 grams of marijuana in the kitchen pantry; 100.48 grams of marijuana in defendant's second-floor bedroom; 1.55 grams of marijuana on top of a chest of drawers in Spence's third-floor bedroom; and 1.89 grams of marijuana from the chest of drawers in Spence's third-floor bedroom. In addition, a film canister with several partially smoked marijuana cigarettes was found on the headboard of the bed in defendant's bedroom, as well as a pack of rolling papers, a cigarette lighter, a plastic sandwich bag, and some loose vegetation located in the lid of a box elsewhere in defendant's bedroom. In addition to the CDS, the police also found a passport issued to Violet Melrose Tomlinson and a Social Security card in the name of Violet Melrose Brown in a purse found in the second-floor bedroom. Several other personal items belonging to Brown were also found in her bedroom. A digital scale, without batteries or a back, was found on the floor outside of Spence's third-floor bedroom. A box of razor blades and numerous plastic ziplock bags were seized from under the sink in the bathroom on the second floor.

Defendant and Spence were indicted on seven counts of drug offenses related to all of the CDS, under an accomplice liability theory. Pre-trial motions to disclose the identity of the confidential informant and to sever the trial were denied.

Defendant testified at trial and denied involvement with, or knowledge of, any of the drugs found in the apartment. She testified that although her bedroom was located on the second floor, she worked as a housekeeper and babysitter in Princeton and was rarely at the apartment other than to sleep two or three nights per week. Defendant claimed that she kept nothing in the chest of drawers located in her second-floor bedroom and that, in fact, she had never touched that chest of drawers. She also explained that she did not use the kitchen, including the refrigerator, because she ate her meals at her job and returned home late at night. Defendant testified that she never ventured up to the third floor. She stated that there was no lock on her bedroom door and that she did not know whether others had access to her room because she was rarely at the apartment.*fn1

Spence testified that at least some of the 3.44 grams of marijuana recovered from her third-floor bedroom was possessed by her for her personal use. She denied, however, knowledge of the marijuana or cocaine found in other locations in the apartment. She explained that the digital scale found on the third floor was inoperable, but that she kept it because her young children liked to play with it. In an attempt to justify the presence of other CDS found in the apartment, she suggested that unknown third persons placed it there. She testified that the apartment had a fire escape that was connected to several other row houses and that she had observed drug activity in the neighborhood around her apartment.

During the trial, defendant sought to impeach Spence's credibility by introducing the informant's statements that he or she had made two controlled marijuana purchases from Spence. The trial court determined that the informant's statements were inadmissible hearsay because they did not satisfy any of the exceptions to the hearsay rule.

The jury convicted defendant of the four marijuana charges: fourth-degree possession of marijuana; third-degree possession of marijuana with intent to distribute; third-degree possession of marijuana with intent to distribute in a school zone; and fourth- degree maintaining a premises for persons using controlled dangerous substances. Defendant was acquitted of all three charges related to the cocaine found in the refrigerator. The jury convicted Spence on all seven counts. After proper merger of offenses, defendant was sentenced to a custodial term of three years to be served without parole eligibility. The Appellate Division affirmed defendant's judgment of conviction in an unpublished opinion. We granted defendant's petition for certification, 165 N.J. 604 (2000), limited to the issues of the admissibility of testimony regarding the informant's statements to the police and the denial of the severance motion.

II.

A.

Defendant argues that she should have been allowed to cross- examine the testifying police officer about his conversations with the confidential informant because some of the informant's statements fall under the "statement against interest" exception to hearsay. Defendant sought to place before the jury the fact that, although the informant's statements to Officer Crosby regarding the drug activity at the apartment implicated both defendant and Spence, the two statements regarding the controlled drug buys indicated that only Spence had sold drugs to the informant. Defendant contended that those two statements exculpated her from any involvement in the drug sales. As noted previously, the trial court disallowed the statements, concluding that they were inadmissible hearsay.

In her appeal to the Appellate Division and before us, defendant contends that the informant's statements were contrary to the informant's penal and social interests because they were admissions that the informant had purchased marijuana. The Appellate Division rejected defendant's argument, explaining:

The informant was not subjecting himself to criminal liability at the time of the statement because he was an informant working for the government. The "test is whether the statement so far exposes the declarant to criminal liability that ?but for [its] truth [it] would not have been made.'" State v. Gomez, 246 N.J. Super. 209, 215 (App. Div. 1991) (citations omitted). The informant knew at the time he made the statement that it was not against his interest to do so. Furthermore, as the rule requires, the statement is admissible against an accused only if the accused was the declarant. Thus, this exception is inapplicable because the declarant is not the accused.

As a preliminary matter, a trial court's evidentiary rulings are "entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment." State v. Marrero, 148 N.J. 469, 484 (1997). Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless "the trial court's ruling ?was so wide of the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).

We first address the State's assertion that the informant's statements are not relevant. The fact that defendant and Spence were not charged based on the drugs sold by Spence to the informant is not dispositive of the relevancy question. Relevant evidence is defined as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. That Spence was the person who twice sold marijuana to the informant is relevant to show that the CDS recovered during the execution of the search warrant probably belonged to Spence and that she probably was a drug dealer. But that evidence does not prove that Brown was not in sole or joint possession of the marijuana recovered from her bedroom; nor does it prove that she was not involved in selling drugs. That evidence can, however, support her claim that she was unaware of the presence of CDS in her bedroom. Nevertheless, relevance is not an exception to the hearsay rule.

The trial court properly ruled that the confidential police informant's identity should not be revealed. See N.J.R.E. 516; State v. Florez, 134 N.J. 570, 578-79 (1994). Thus, any statements made by the informant, if admitted at all, would be introduced through Officer Crosby's testimony as reflected in his affidavit submitted in support of his application for the search warrant. Those two statements are hearsay because each "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c); see State v. Smith, 155 N.J. 83, 95 (1998) (stating that "the information contained in an informant's tip is hearsay."). Thus, the statements are not admissible except as provided by the New Jersey Rules of Evidence. Defendant asserts that the two statements by the confidential informant were declarations against the informant's penal and social interests. Under our rules of evidence, a declaration against interest is a

statement which was at the time of its making so far contrary to the declarant's pecuniary, proprietary, or social interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid declarant's claim against another, that a reasonable person in declarant's position would not have made the statement unless the person believed it to be true. Such a statement is admissible against an accused in a criminal action only if the accused was the declarant. [N.J.R.E. 803(c)(25).]

That exception "is based on the theory that, by human nature, individuals will neither assert, concede, nor admit to facts that would affect them unfavorably." State v. White, 158 N.J. 230, 238 (1999). Thus, "statements that so disserve the declarant are deemed inherently trustworthy and reliable." Ibid. Consequently, "[t]he law of evidence recognizes that a statement in which a party confesses to having committed a crime subjects the declarant to criminal liability, and therefore constitutes a statement that is against interest." Ibid. "Whether a statement is in fact against [the defendant's] interest must be determined from the circumstances of each case." Williamson v. United States, 512 U.S. 594, 601, 114 S. Ct. 2431, 2436, 129 L. Ed. 2d 476, (1994). Further, the statement must have been against the declarant's interest at the time it was made. State v. Norman, 151 N.J. 5, 31 (1997).

We are persuaded that the informant's statements do not meet the requirements of N.J.R.E. 803(c)(25). The informant involved here was a police informant rather than a citizen informant. As such, he or she was an investigating agent of the police. It has long been recognized "that the government may employ undercover tactics to infiltrate criminal ranks and may rely on paid informants in order to locate and arrest criminals." United States v. McQuin, 612 F.2d 1193, 1195-96 (9th Cir.), cert. denied, 445 U.S. 955, 100 S. Ct. 1608, 63 L. Ed. 2d 791 (1980); accord State v. Oliver, 50 N.J. 39, 42 (1967). Protecting the identity of informants is a privilege afforded the State in recognition of its compelling need to protect its sources of information concerning criminal activity. Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627, 1 L. Ed. 2d 639, 644 (1957). The two controlled drug buys made by the informant in this case were negotiated and supervised by law enforcement authorities, with the informant participating as an agent of the State. See State v. Florez, supra, 134 N.J. at 582. Because he or she was working on behalf of the Trenton police at the time he or she made the buys, the informant's statements concerning what occurred during those buys were not against his or her penal interest. The informant's statements about the identity of Spence as the seller were the expected result of his or her role as a controlled buyer, thereby essentially conferring immunity upon the informant.

Defendant maintains that the informant did not know at the time he or she made the statements that it was not against his or her interest to do so. She states that one cannot trust law enforcement not to file charges against an individual who aids a police investigation. Those contentions, even assuming they might be true for the general public, do not apply to the informant in this case as a matter of fact. In his affidavit, Officer Crosby informed the judge who issued the search warrant that the informant was reliable as he or she had "provided information in the past which has resulted in the arrests of fifteen (15) persons for Dangerous Drug Offenses, one (1) of whom has been convicted and the remainder are pending court action."

Thus, the informant's past working relationship with Officer Crosby negates defendant's implication that the informant's participation in the controlled buys could have led to his or her arrest. Notwithstanding the informant's investigatory role, he or she probably would not have assisted the State in its drug investigation by making two controlled buys unless the informant knew that he or she was immune from prosecution and that his or her anonymity would be preserved. Moreover, Officer Crosby and the Trenton police would not want to run the risk of losing the informant's cooperation by needlessly charging drug offenses against an informant who acted as their agent when the informant engaged in a controlled buy. Therefore, the informant's statements are not admissible under the declaration-against- interest exception to the hearsay rule.

Defendant's reliance on State v. White, supra, 158 N.J. at 230, to support her assertion that the informant's statements are admissible under N.J.R.E. 803(c)(25) because they inculpate the declarant while also exculpating her is misplaced. In White, the declarant had given a statement to the police that implicated himself and exculpated the defendant in a robbery. Only a portion of that statement was admitted, including the declarant's bragging to the defendant about his involvement in the robbery. Id. at 245. Such an admission directly inculpates the declarant. It also indirectly exculpates the defendant; if the declarant bragged to the defendant about the robbery, "one may infer that [the defendant] did not participate in the crime." Ibid.

Here, unlike in White, the informant's statements are not admissible as a declaration against interest. Within the context of his or her investigatory role, the informant's statements in the present case are not self-inculpatory. Unlike those exculpatory statements in White that strengthened the incriminatory nature of the declarant's statements, the informant's statements here neither inculpated the informant nor exculpated defendant. In other words, the informant's interest was not at risk.

B.

We also reject defendant's assertion that even if the informant's statement are not declarations against the informant's penal interest, that they are nonetheless declarations against his or her social interest and admissible under N.J.R.E. 803(c)(25). The current rule does not define "social interest." The previous version had provided, however, that "[a] statement is admissible if at the time it was made it . . . created such a risk of making [the declarant] an object of hatred, ridicule or social disapproval in the community that a reasonable man in his position would not have made the statement unless he believed it to be true." Evid. R. 63(10).

To support her argument, defendant relies on State v. West, 145 N.J. Super. 226 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977), in which the Appellate Division found that an informant's alleged statements, that he had falsely accused the defendant of a drug offense to harm him, were admissible as a statement against interest. If truly made by the informant, those statements "can be expected to make of him an ?object of hatred, ridicule or social disapproval.'" Id. at 233. Further, those statements exposed him to being indicted for "the giving of false information to a law enforcement officer or agency." Ibid.

Here, however, the informant's statements that he or she purchased marijuana from co-defendant Spence in the context of a police investigation does not place his or her social interest at risk. Viewed in the context of society's war against drug crimes, the informant's admission that he or she participated in two controlled drug buys does not make him or her "the enemy" as asserted by defendant. Because the police had used the informant on a number of occasions, "no reason [existed] why [he or she] should be treated any differently [from] a police officer who works undercover in drug trafficking as an agent of the government." State v. Florez, 261 N.J. Super. 12, 26 (App. Div. 1992), aff'd, 134 N.J. 570, 582 (1994). Simply because the informant was acting as an agent of the State when he or she participated in the two marijuana buys, there is no risk of making him or her an object of hatred, ridicule, or social disapproval.

Having concluded that the informant's statements are not admissible under either of the foregoing exceptions to the hearsay rule, we emphasize that New Jersey has expressly declined to adopt the federal residual hearsay exception, Fed. R. Evid. 803(24), which allows "a general hearsay exception for statements not covered by a specific hearsay rule." Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 803(c)(24) [Not Adopted] (2000); State v. Bunyan, 154 N.J. 261, 268 (1998). The federal rule covers statements that possess "equivalent circumstantial guarantees of trustworthiness," provided that those statements meet various criteria enunciated in the rule. Ibid. (internal quotation marks omitted). The 1991 Supreme Court Committee stated that "[t]he adoption of Fed. R. Evid. 803(24), construable as a general relaxation rule, would represent a radical departure from New Jersey practice." Ibid. It is therefore clear that the confidential informant's statements must fit within one of our hearsay exceptions if it is to be considered as evidence at trial.

C.

To satisfy the relevancy requirement for admitting the hearsay statements of the informant, N.J.R.E. 402, defendant argues that the informant's statements that he or she made two marijuana purchases from Spence exculpate her. However, the Court must consider both the exculpatory and inculpatory evidence from the informant when deciding whether the hearsay rule has mechanistically defeated defendant's ability to present a defense. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed. 2d 297, (1973). Also, under the doctrines of "opening the door," "curative admissibility" and "completeness," defendant would have been precluded "from successfully excluding from the prosecution's case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant's own advantage, without allowing the prosecution to place the evidence in its proper context." State v. James, 144 N.J. 538, 554 (1996).

D.

The dissent posits that, by including the informant's statements in an affidavit submitted to a court in connection with a request for a search warrant, the State manifested its belief in the truth of those statements. Based on that reasoning, the dissent concludes that it was plain error for the trial court to have excluded the informant's statements that he or she purchased drugs only from Spence because those statements were admissible under N.J.R.E. 803(b)(2), as adoptive admissions by the State. Ante at ___, (slip op. at 2-3, 13-35). To support its position, the dissent relies on federal court of appeals decisions and one Appellate Division decision. United States v. Warren, 42 F.3d 647 (D.C. Cir. 1994); United States v. Kattar, 840 F.2d 118 (1st Cir. 1988); United States v. Morgan, 581 F.2d 933 (D.C. Cir. 1978); State v. Dreher, 302 N.J. Super. 408 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998). We hold that the informant's statements to the police that he or she purchased drugs only from Spence were not admissible under N.J.R.E. 803(b)(2) as adoptive admissions by the State. Moreover, even if the Court agreed that in some limited instances statements used by the police to obtain search warrants could be construed as adoptive admissions, the failure of the trial court to permit defendant to introduce the informant's statements in this case was harmless error. R. 2:10-2.

Under the adoptive admissions exception, a statement offered against a party[-opponent] which is . . . a statement whose content the party has adopted by word or conduct or in whose truth the party has manifested belief" is admissible as an exception to the hearsay rule. N.J.R.E. 803(b)(2). This Court has never decided whether the State's use of an informant's statement in an affidavit to support probable cause for a search warrant constitutes an adoptive admission under N.J.R.E. 803(b)(2). Our research has not uncovered any other state court decision resolving this precise issue. Our research further reveals that of the federal circuit courts, only the Court of Appeals for District of Columbia has applied the adoptive admissions exception to hearsay statements contained in search warrant affidavits. Morgan, supra, 581 F.2d at 936-38. The Second Circuit, meanwhile, has expressly declined to address whether the adoptive admission exception applies to statements made in affidavits for warrants. United States v. Ramirez, 894 F.2d 565, 570-71 (2d Cir. 1990) (noting that "[t]he information contained in the affidavits was gathered at a preliminary stage in the investigation, and hence subject to change as the investigation progressed").

Other than the Second Circuit and the District of Columbia Circuit, no other circuit court has even mentioned the issue of whether statements made in affidavits for warrants are admissible as adoptive admissions of the government. The dissent cites Warren, supra, 42 F.3d 647, and Kattar, supra, 840 F.2d 118, in support of its position. However, neither of those cases discusses adoptive admissions in the context of warrant applications. Warren deals with hearsay statements that were included in a sworn statement of facts attached to a criminal complaint. Warren, supra, 42 F.3d at 655. Unlike an application for a search warrant, which is part of the investigatory stage, a criminal complaint is one of the first steps in a criminal prosecution. Infra at , (slip op. at 6-8). Kattar deals with a sentencing memorandum submitted to a court during a criminal prosecution and a brief prepared by the government as part of a civil suit. Kattar, supra, 840 F.2d at 126, 130-31. Neither of those documents is analogous to an application for a search warrant, which is made during a pre-charge investigation. It is also noteworthy that Warren, Kattar, and Morgan were decided after the federal residual hearsay exception, Fed. R. Evid. 807, was adopted, and those decisions incorporate the federal rules' flexible approach to trustworthy evidence.

In the broader context of applying the party-opponent admissions exception to the State generally, the Second Circuit has determined that "the inconsistent out-of-court statements of a government agent made in the course of the exercise of his authority and within the scope of that authority, which statements would be admissions binding upon an agent's principal in civil cases, are not so admissible [in criminal cases] as ?evidence of the fact.'" United States v. Santos, 372 F.2d 177, 180 (2d Cir. 1967) (discussing historical inability of government agents to bind the sovereign). The Fifth Circuit has declined to decide whether "informants who assist law enforcement officers in detecting crime . . . should be deemed agents of the United States for purposes of the rule." United States v. Pena, 527 F.2d 1356, 1361 (5th Cir.), cert. denied, 426 U.S. 949, 96 S. Ct. 3168, 49 L. Ed. 2d 1185 (1976). In the context of a statement made by an Internal Revenue Agent, the Sixth Circuit has specifically held that "[w]hile evidence of contradictory statements may be used to impeach a government agent, they may not be introduced to prove the truth of the statements offered." United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975), cert. denied, 424 U.S. 933, 96 S. Ct. 1146, 47 L. Ed. 2d 340 (1976).

On the issue of whether statements made by government employees or agents, such as informants, during the investigative stage of a potential criminal proceeding should be considered binding on the State for purposes of the "party-opponent" requirement of the adoptive admissions rule, the Seventh Circuit has observed:

Prior to adoption of the Federal Rules of Evidence, admissions by government employees in criminal cases were viewed as outside the admissions exception to the hearsay rule. United States v. Powers, 467 F.2d 1089, 1095 (7th Cir. 1972). Because the agents of the Government are supposedly disinterested in the outcome of a trial and are traditionally unable to bind the sovereign (United States v. Santos, 372 F.2d 177, 180 (2d Cir. 1967)), their statements seem less the product of the adversary process and hence less appropriately described as admissions of a party. Nothing in the Federal Rules of Evidence suggests an intention to alter the traditional rule and defendant has cited no truly contrary case indicating such a trend. [United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir. 1979), cert. denied, 446 U.S. 954, 100 S. Ct. 2923, 64 L. Ed. 2d 812 (1980) (finding that a government employee's statement did not meet any of the hearsay exceptions).]

At least one major treatise has expressed the same concern. 2 McCormick on Evidence § 259 (Strong ed., 5th ed. 1999) (noting that "statements by agents of the government are often held inadmissible against the government" when the statements are made "by agents at the investigative level"). That view is consistent with this Court's admonition nearly half a century ago that extra caution must be exercised when deciding whether a hearsay statement should be admissible as evidence under the adoptive admissions exception. Greenberg v. Stanley, 30 N.J. 485, 498 (1959); see also State v. Briggs, 279 N.J. Super. 555, 562 (App. Div.), certif. denied, 141 N.J. 99 (1995).

Affidavits containing the statements of informants are submitted to a court in an attempt to satisfy the probable cause requirements of the Fourth Amendment and of Article I, paragraph 7 of the New Jersey Constitution. Because both of those constitutional provisions speak in terms of reasonableness, consideration of whether hearsay statements contained in the affidavit should be admissible in the subsequent jury trial of guilt or innocence "calls for a continuing reconciliation of competing values." State v. Davis, 50 N.J. 16, 22 (1967), cert. denied, 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968). In this case, the affidavit containing the informant's hearsay statements was made to secure a search warrant. Defendant's indictment is based on the evidence obtained during the execution of that search warrant. The validity of that affidavit and whether probable cause was established are traditionally contested within preliminary proceedings in advance of trial. See R. 3:5-7.

Although an informant's hearsay statements can be used to determine whether probable cause exists in the Fourth Amendment context, such statements are hearsay and generally inadmissible in a trial to determine guilt or innocence. United States v. Matlock, 415 U.S. 164, 173-75, 94 S. Ct. 988, 994-95, 39 L. Ed. 2d 242, 252 (1974); Jones v. United States, 362 U.S. 257, 270-71, 80 S. Ct. 725, 735-36, 4 L. Ed. 2d 697, 707 (1960), overruled on other grounds by United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); Draper v. United States, 358 U.S. 307, 311-12, 79 S. Ct. 329, 332, 3 L. Ed. 2d 327, 331 (1959); Brinegar v. United States, 338 U.S. 160, 172-73, 69 S. Ct. 1302, 1309, 93 L. Ed. 1879, (1949); State v. Ebron, 61 N.J. 207, 212 (1972); State v. Kasabucki, 52 N.J. 110, 116-17 (1968). One of the problems with Dreher is its failure to focus properly on the point in time in a criminal proceeding at which the affidavit for a search warrant is submitted to a judicial officer. Although the affidavit there was submitted while the murder investigation was ongoing and one-and-a-half years before the defendant was indicted, Dreher, supra, 302 N.J. Super. at 503-04, the court concluded that "when the government, by submitting the statements to a judicial officer for the issuance of a search warrant, manifests its belief in the truth of such statements, . . . the State should not be allowed to hide behind their arguable inaccuracy and unreliability at another stage of the prosecution." Id. at 508. In deciding whether the State has adopted the statements contained in an affidavit submitted to a court in connection with an application for a search warrant, one important factor to consider is timing, i.e. was the affidavit submitted during the investigatory stage or the prosecutorial stage. The Dreher court seemingly concluded that this distinction was immaterial.

A criminal prosecution is generally commenced with the filing of formal charges, which initiate adversarial judicial criminal proceedings. United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 2297, 81 L. Ed. 2d 146, 153 (1984); Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411, 417-18 (1972). Arguably, the investigative period does not end until an indictment has been filed. When that occurs, "the State represents that it has sufficient evidence to establish a prima facie case. Once [an] indictment is returned, the State is committed to prosecute the defendant." State v. Sanchez, 129 N.J. 261, 276 (1992). Prior to the commencement of formal prosecution, "?the State's investigative effort . . . is at a preliminary stage, . . . the police may still be attempting . . . to solve the crime[,] . . . [and] the State's decision to prosecute has not solidified.'" State v. P.Z., 152 N.J. 86, 110 (1997) (quoting State v. Tucker, 137 N.J. 259, 290 (1994), cert. denied, 513 U.S. 1090, 115 S. Ct. 751, 130 L. Ed. 2d 651 (1995)).

Here, the affidavit for the warrant was submitted to a judge during the investigatory stage, before any formal charges were filed. "The fact that the investigation had focused on [defendant and Spence] did not convert this into a post-charging proceeding." State v. Reyes, 237 N.J. Super. 250, 264 (App. Div. 1989). Defendant was not charged with any offense until the drugs were seized pursuant to the warrant. Consequently, the point in time at which the affidavit was submitted could justifiably preclude application of the adoptive admissions exception.

The dissent's approach would have a deleterious effect on our system of obtaining search warrants. As it stands, when a police officer applies to a court for a warrant, he or she does not vouch for the truth of an informant's statements; rather, he or she attests to the reliability of the informant in the past and asks the judge, as a neutral magistrate, to determine whether he or she has established probable cause and may further pursue the investigation. Police officers would be placed in a nearly impossible position were we to require that ...


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