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State v. McCann

March 23, 2007

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ALVIN MCCANN, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Ind. No. 3509-09-05.

The opinion of the court was delivered by: Weissbard, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 6, 2007

Before Judges Kestin, Weissbard and Graves.

Pursuant to leave granted, plaintiff, State of New Jersey, appeals from an order suppressing narcotics and related paraphernalia from use as evidence in a prosecution of defendant, Alvin McCann. The motion judge ruled that the Municipal Court judge who issued the search warrant that resulted in seizure of the evidence was not a "neutral and detached magistrate" because he had previously represented defendant as his attorney. This issue has never been addressed in any New Jersey decision. For the reasons which follow, we agree with the motion judge that the Municipal Court judge should not have acted on this warrant application but, contrary to his ruling, conclude that suppression is not the appropriate remedy in the circumstances presented.

The facts are as follows. On April 20, 2005, Officer John Grisso of the Winslow Township Police Department sought a search warrant for the residence of defendant at 201 Fifteenth Street, Florence, Winslow Township. In support of his application, Grisso submitted an affidavit which detailed an investigation beginning with information from a confidential informant in January 2005, concerning sales of narcotics by a man identified as "Ron" from 201 Fifteenth Street. Thereafter, Grisso conducted surveillance of the premises and arranged for the informant to make a controlled buy of cocaine from "Ron" at that address. In March, and again in mid-April 2005, Grisso arranged for another informant to buy cocaine from "Ron." These buys were observed by Grisso and the purchases were confirmed to be cocaine. We have only briefly sketched the contents of Grisso's affidavit because it clearly established probable cause to search the designated premises and defendant does not contend otherwise.

Grisso's affidavit was presented to the judge of the Municipal Court of Winslow Township. The search warrant was issued by the judge on the date of application, April 20, 2005, and was executed on the following day.

Following his indictment on various drug offenses, defendant moved to suppress the evidence seized pursuant to the warrant, arguing that the municipal judge was not the constitutionally required "neutral and detached magistrate," Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948), due to a long-standing attorney-client relationship between the judge and defendant. In support of that argument, defendant testified at the suppression hearing*fn1 that he had known the Municipal Court judge for twenty or thirty years, had consulted with him on various legal matters, and had been represented by him in one litigated case about ten years earlier. Defendant considered the judge his "family attorney."

In his decision, the judge summarized defendant's proofs as follows:

The unrebutted testimony, and for purposes of this motion, I accept Mr. McCann's testimony as being credible. The unrebutted testimony is that Mr. McCann enjoyed a long term relationship with [the judge] beginning before [the judge] was appointed to the Municipal Court bench.

He had been represented by him. His two sisters had been represented by him.

His mother had been represented by him. He had been to his house on at least 12 occasions. He has sought his counsel on at least ten occasions. He had worked with him as part of his function with Winslow Township as an inspector. And he was so comfortable with him that he was able to approach him three weeks before the issuance of this search warrant and request an OR bail for a friend.

As a result, the judge found that "there was a relationship between the defendant and [the Municipal Court judge] as to make [the judge] not a neutral and detached magistrate." Turning to the appropriate remedy, the judge ruled:

Now we get to the question as to what would be the appropriate remedy, which was really the focal point of the arguments today. Defendant argues that the search warrant is invalid and that the exclusionary rule demands the suppression of the evidence that was seized. The state argues that an appropriate remedy is for this Court to review the search warrant to determine whether or not probable cause exists and that the evidence would have been discovered in any event.

I believe that probable cause does exist in this case. There is an extraordinary amount of cause that is set forth in the affidavit. The starting point, I guess, as set forth is the Constitution which requires that -- our Constitution and the United States Constitution and the New Jersey Constitution require that probable cause be shown to a neutral and detached magistrate upon affiant's swearing an oath in front of that magistrate or judge.

The purpose of that, according to . . . Mapp v. Ohio, 367 U.S. 643, [(1961)] the purpose of the exclusionary rule is to deter police misconduct. In the Eleuteri case, [Eleuteri v. Richman, 26 N.J. 506 [(1958)], Chief Justice Weintraub talks about adopting the exclusionary rule in New Jersey and purposes, the pros and the cons in doing that, and he sets . . . forth that the two reasons New Jersey should adopt it, one, . . . that the state should not stoop to the dirty business that criminals participate in in order to catch a criminal, and secondly that there is no civil or criminal remedy when the process is violated that would restore or protect the individual.

Here there was no wrongdoing by the police officer. He did exactly what he should have done. He gathered the evidence. He brought it before the Municipal Court Judge. He attested to it, and it was sufficient in that Judge's mind, and I think ...


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