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State v. Dickerson

Supreme Court of New Jersey

February 5, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
MELVIN T. DICKERSON, Defendant-Respondent.

          Argued November 8, 2017

         On appeal from the Superior Court, Appellate Division.

          Sarah Lichter, Deputy Attorney General, argued the cause for appellant (Christopher S. Porrino, Attorney General, attorney; Sarah Lichter, of counsel and on the briefs) .

          Cody T. Mason, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Cody T. Mason, of counsel and on the briefs).

          Jeffrey L. Weinstein, Assistant Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Richard T. Burke, President, attorney; Jeffrey L. Weinstein, of counsel and on the brief).

          Alexander R. Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Alexander R. Shalom, Edward L. Barocas and Jeanne M. LoCicero, on the brief).

         SOLOMON, J., writing for the Court.

         This appeal raises the question whether, in cases involving a search warrant, Rule 3:4-2(c)(1)(B) obliges the State to produce the affidavit underlying the warrant prior to a pretrial detention hearing pursuant to the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A;162-15 to -26.

         Police officers with the Asbury Park Police Department (APPD) applied for a warrant to search Welcome Back Unisex Hair Cuts, a barbershop/hair salon in Asbury Park (the salon). A Superior Court judge issued the warrant, which did not name any individuals as targets of the search but simply stated that the requesting officer had "probable cause to believe" that within the salon "[t]here has been and now is located certain" contraband.

         Upon execution of the search warrant, the APPD officers found four men inside the salon, including defendant Melvin Dickerson and co-defendant Julius Franklin (Franklin). Defendant was observed to be at the rear of the salon when the police entered, near where drugs and guns were later found. When questioned, Franklin told the officers he worked at the salon. Defendant, however, was "uncooperative." One of the two other men present told the officers that he was at the salon waiting for a haircut; the other stated he had just "stopped in. . . briefly and was not employed [at the salon]." The officers then conducted a search of the salon. The search revealed thirty-one pieces of evidence including suspected marijuana, weapons, and several documents addressed to defendant at the salon. After the search, officers arrested Franklin and defendant. That same day, a complaint warrant was issued charging defendant with ten crimes. The complaint warrant was based upon an affidavit of probable cause that stated "pursuant to the execution of a search warrant. . . [defendant] was arrested after being found to be in possession of suspected CDS, weapons, and contraband."

         At defendant's pretrial detention hearing, the State moved to detain defendant and disclosed the Preliminary Law Enforcement Incident Report (PLEIR), the complaint, the supporting affidavit of probable cause, the Public Safety Assessment (PSA), and the incident and arrest reports. Defendant's PSA rated both his risk of failure to appear and his risk of new criminal activity as a three out of six. No violence flag was indicated. The PSA recommended that defendant be released pretrial with conditions and monthly reporting. When asked whether the State had the affidavit to support the search warrant in its possession, the State responded that it did not have the affidavit and that it was "not relying upon the affidavit." The judge found that the affidavit must be produced and, as a sanction, released defendant with conditions. The State moved for reconsideration, which was denied.

         The Appellate Division granted the State's request for leave to file an interlocutory appeal and affirmed the trial court's ruling that the State was required to produce the search warrant affidavit. However, the Appellate Division reversed the trial court's decision to release defendant and remanded for a pretrial detention hearing-both to determine whether defendant should be detained and to determine the appropriate sanctions, if any, for the State's failure to provide the search warrant affidavit. The Court granted leave to appeal. 230 N.J. 544 (2017).

         HELD: The affidavit supporting a search warrant disclosed in discovery need not be disclosed as a matter of course, and no particular circumstances necessitated disclosure of that affidavit here. To the extent that the trial court's order of release served as a "sanction" for the State's failure to meet what the court viewed to be the State's discovery requirements, that release order was improper.

         1. In State v. Robinson, the Court underscored that the State must carry a twofold burden at pretrial detention hearings-to demonstrate probable cause and to overcome the presumption of pretrial release-and noted that "discovery should likewise be keyed to both areas." 229 N.J. 44, 69 (2017). The Court accordingly clarified and amplified the meaning of Rule 3:4-2(c)(1)(B). Rule 3:4-2(c)'s pretrial discovery requirements must "be read in conjunction with Rule 3:13-3, which obligates the State to provide full discovery when it makes a pre-indictment plea offer or when an indictment is returned or unsealed." Id. at 72. That does not mean that the requirements of the two rules are identical. Rather, the instruction mandates the adoption of "a workable standard." Id. at 68. (pp. 15-21)

         2. Together, Rules 3:5-4 and 3:5-6(c) establish strong confidentiality protections for warrants and their supporting materials. Rule 3:5-6(c) provides: "the warrant and accompanying papers shall be provided to the defendant in discovery pursuant to R. 3:13-3, " which provides for "open file" discovery upon indictment or in the event of a plea offer. It is thus not until further along in the process that the confidentiality concerns protected by Rule 3:5-6(c) bow to discovery requirements, whereas the discovery provided for in Rule 3:4-2 is to be turned over pretrial, (pp. 21-23)

         3. Discovery is limited by the nature of the pretrial detention hearing, at which the State is required only to establish probable cause and to refute the presumption of release. Whether a search warrant affidavit is discoverable at a detention hearing will turn on whether it relates to the affidavit of probable cause or the State's presentation on the risk factors in the specific case. When charged offenses include an element of possession, trial courts must determine whether the State has established a sufficient nexus between contraband and a defendant to support a finding of probable cause based on the discovery it provides pursuant to Rule 3:4-2(c). If the court concludes that additional related evidence is required to establish the nexus, the court may require production of additional discovery, including the search warrant affidavit. If the State is then unable or unwilling to produce the evidence needed, it will fail to carry its burden of proof, and the trial court must order release. The Court leaves it to the trial courts to apply Rule 3:4-2(c) as clarified to resolve such disclosure issues. That approach is a natural application of existing principles of law. Going far back in time, judges have made probable cause determinations without either the judge or the defendant having the benefit of a search warrant affidavit. Likewise, judges have made bail decisions that affected a defendant's liberty without a search warrant affidavit. There is no basis under the CJRA or the Rules to require disclosure of search warrant affidavits that do not relate to probable cause or detention-the only issues before the court, (pp. 23-29)

         4. In the present case, the affidavit of probable cause did not refer to the search warrant affidavit, nor did the State rely on the search warrant affidavit at the detention hearing. The search warrant affidavit did not "relate to" the affidavit of probable cause. It is true that, where a defendant is one of several persons found on premises where contraband is discovered, it may not be inferred that he knew of the presence or had control of the contraband unless there are other circumstances tending to permit such an inference to be drawn. Defendant was in the area of the salon where drugs and guns were found, and officers found mail addressed to defendant at the salon, a State of New Jersey Certificate of Authority addressed to defendant, and an expired City of Asbury Park Barbershop/Salon License addressed to a Barbara Dickerson. It is clear that defendant was not a customer. The State established a nexus sufficient to support probable cause here. The Court reverses the affirmance of the order that compelled production of that document, (pp. 29-31)

         5. The issue of discovery sanctions must be distinguished from a failure by the State to carry its burden as to probable cause or as to the need for detention. When the State fails to carry its burden in either of those areas, then the presumption of release under the CJRA carries the day. When the State withholds requisite discovery, there are sanctions available under our court rules to penalize gamesmanship. Such sanctions cannot include release of a defendant. As to whether any sanction was warranted, there is no allegation that the State was guilty of any misbehavior here. No sanction was warranted and the pretrial detention hearing should have been allowed to proceed as scheduled while interlocutory review of the legal dispute was pursued. The Court accordingly affirms the Appellate Division's determination to remand to the trial court for a detention hearing, (pp. 31-33)

         The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is remanded for further proceedings consistent with this opinion.

         JUSTICE ALBIN, DISSENTING, expresses the view the majority decision places Rule 3:4-2(c)(1)(B) at odds with the CJRA and permits the State to disclose the search warrant affidavit only when it is to the State's advantage. Justice Albin would hold that when contraband is seized pursuant to a search warrant, the search warrant affidavit should be disclosed in discovery pursuant to Rule 3:4-2(c) in the absence of extenuating circumstances.

          CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S opinion. JUSTICE ALBIN filed a separate, dissenting opinion, in which JUSTICE LaVECCHIA joins.

          OPINION

          SOLOMON, JUSTICE.

         This appeal raises the question whether, in cases involving a search warrant, Rule 3:4-2(c)(1)(B) obliges the State to produce the affidavit underlying the warrant prior to a pretrial detention hearing pursuant to the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26.

         During defendant Melvin Dickerson's pretrial detention hearing, the court denied the State's motion for pretrial detention. Relying on Rule 3:4-2 (c) (1) (B), the court ordered defendant released subject to conditions as a discovery sanction for the State's failure to produce the search warrant affidavit.

         On interlocutory appeal, the Appellate Division agreed that the State was obliged to produce the affidavit but held that the trial court erred by releasing defendant as a discovery sanction. Therefore, the Appellate Division directed the State to produce the affidavit and remanded for a full pretrial detention hearing.

         We now reverse the Appellate Division's judgment ordering production of the search warrant affidavit. We further find no evidence or allegation of misconduct on the part of the State justifying discovery sanctions for failure to produce the search warrant affidavit. Thus, we agree with the Appellate Division that the pretrial release of defendant was in error and that the case should be remanded for a full pretrial detention hearing.

         I.

         The following facts are elicited from record documents, including the search warrant, the incident report prepared by police, and the complaint-warrant.

         A.

         After multiple meetings with a confidential informant discussing the sales of controlled dangerous substances (CDS), police officers with the Asbury Park Police Department (APPD) applied for a warrant to search Welcome Back Unisex Hair Cuts, a barbershop/hair salon in Asbury Park (the salon). A Superior Court judge reviewed the application and issued the warrant. The warrant did not name any individuals as targets of the search but simply stated that the requesting officer had "probable cause to believe" that within the salon "[t]here has been and now is located certain" contraband.

         Upon execution of the search warrant, the APPD officers found four men inside the salon, including defendant and co-defendant Julius Franklin (Franklin). Defendant was observed to be at the rear of the salon when the police entered, near where drugs and guns were later found. When questioned, Franklin told the officers he worked at the salon. Defendant, however, was "uncooperative." One of the two other men present told the officers that he was at the salon waiting for a haircut; the other stated he had just "stopped in . . . briefly and was not employed [at the salon]."

         The officers then conducted a search of the salon. The search revealed thirty-one pieces of evidence including two plastic bags of suspected marijuana, a 9mm sub-machine gun, a .38 caliber semi-automatic handgun, a stun gun, ammunition, two digital scales, a heat-seal vacuum, a box of Ziploc vacuum sealer gallon bags, a suspected police scanner, a cell phone, a State of New Jersey Certificate of Authority addressed to defendant, an expired City of Asbury Park Barbershop/Salon License addressed to a Barbara Dickerson, and several more documents addressed to defendant at the salon. After the search, officers arrested Franklin and defendant.

         That same day, a complaint warrant was issued charging defendant with ten crimes: 1) fourth-degree possession of over one-half ounce of marijuana, N.J.S.A. 2C:35-10(a)(3); 2) third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(11); 3) third-degree possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-7(a); 4) fourth-degree unlawful interception or use of official communications, N.J.S.A. 2C:33-21; 5) two counts of second-degree possession of a firearm while in the course of committing a narcotics offense, N.J.S.A. 2C:39-4.1(a); 6) fourth-degree possession of a defaced handgun, N.J.S.A. 2C:39-3(d); 7) second- degree unlawful possession of a machine gun, N.J.S.A. 2C:39-5(a); 8) second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); and 9) fourth-degree unlawful possession of a stun gun, N.J.S.A. 2C:39-3(h). The complaint warrant was based upon an affidavit of probable cause that stated "pursuant to the execution of a search warrant . . . [defendant] was arrested after being found to be in possession of suspected CDS, weapons, and contraband."

         At defendant's pretrial detention hearing, the State moved to detain defendant. In connection with the hearing, the State disclosed the Preliminary Law Enforcement Incident Report (PLEIR), [1] the complaint, the supporting affidavit of probable cause, the Public Safety Assessment (PSA), and the incident and arrest reports. Defendant's PSA rated both his risk of failure to appear and his risk of new criminal activity as a three out of six. No violence flag was indicated. The PSA recommended that defendant be released pretrial with conditions and monthly reporting.

         During defendant's pretrial detention hearing, the judge explained to defendant that he had "the right to be provided with all statements or reports in the prosecutor's possession relating to the pretrial detention application." At that point, defense counsel claimed that he had received "limited discovery, " because "the affidavit to support the search warrant is absent." When asked whether the State had the affidavit in its possession, the State responded that it did not have the affidavit and that it was "not relying upon the affidavit." The judge found that the affidavit must be produced, stating:

It doesn't matter what you're relying on. If it relates to the motion, it must be produced. The Rule does not speak to what information the State intends to rely upon. That is not the litmus test for what must be produced. It is anything that relates to the application. The defendant is entitled to have all of that information.

         The State further argued that "[t]he affidavit is not referenced in the PLEIR" and "has nothing to do with the probable cause that is related to this offense." The court, however, found that the affidavit "should be produced .... whether the State is intending to rely on it or not" and, as a sanction, released defendant with conditions.

         A day after defendant was released, the Appellate Division decided State v. Robinson, 448 N.J.Super. 501, aff'd and modified, 229 N.J. 44 (2017), and the State moved for reconsideration based on the holding in that case. At the reconsideration hearing, the State argued that "the only basis for which the Defense would be able to use the affidavit in support of the search warrant would be to attack the probable cause" for the search itself -- a question not at issue at the pretrial detention stage. The State also argued that "the appropriate remedy here would not be simply to release the defendant, but for the Court to issue an order . . . specifying what documents that the State is to produce." The State's motion for reconsideration was denied, and the Appellate Division granted the State's request for leave to file an interlocutory appeal.

         B.

         The Appellate Division affirmed the trial court's ruling that the State was required to produce the search warrant affidavit. However, the Appellate Division reversed the trial court's decision to release defendant and remanded for a pretrial detention hearing -- both to determine whether defendant should be detained and to determine the appropriate sanctions, if any, for the State's failure to provide the search warrant affidavit.

         Specifically, the appellate panel held that, when the State's evidence in support of pretrial detention is largely dependent on items seized under a search warrant, the affidavits underlying that warrant are relevant evidence relating to probable cause. The appellate panel relied on the text of Rule 3:4-2(c)(1)(B), as well as the sixth, seventh, and tenth principles in State v. Robinson that this Court stated "should govern the disclosure of evidence at a detention hearing": (6) "All statements and reports relating to the affidavit of probable cause should be disclosed"; (7) "All statements or reports that relate to any additional evidence the State relies on to establish probable cause at the detention hearing should be disclosed"; and (10) "The phrase 'statements and reports' refers to items that exist at the time of the hearing. The terms plainly include relevant police reports." 229 N.J. 44, 70-71 (2017) .

         The appellate panel rejected the State's contention that warrant-related materials need only be produced post-indictment, holding that the first exception to Rule 3:5-6(c) applied --"the warrant and accompanying papers shall be provided to the defendant in discovery pursuant to R. 3:13-3" -- and that Rule 3:4-2(c) controls the timing of disclosure. The Appellate Division also held that any confidentiality concerns regarding production could be remedied by a protective order, which the State did not seek.

         The appellate panel affirmed the trial court's ruling compelling the State to produce the search warrant affidavit but vacated the portion of the trial court's order that denied pretrial detention without a hearing. The appellate panel found that the trial court never explained the reasons for imposing the "sanction" of releasing defendant or why the sanction was justified under the circumstances. Hence, the appellate panel remanded for a pretrial detention hearing to evaluate whether the State acted in good faith when it did not produce the underlying affidavit, as well as whether the trial court considered sanctions other than summary denial of the State's pretrial detention application.

         We granted the State's motion for leave to appeal. 230 N.J. 544 (2017). We also granted the motions of the American Civil Liberties Union of New Jersey (ACLU) and the County Prosecutors Association of New Jersey (CPANJ) to participate as amici curiae.

         II.

         A.

         The State asserts that, at the pretrial detention stage, its burden is only to establish probable cause and the defendant's risk of danger, flight, and obstruction. According to the State, an expansive discovery obligation at the pretrial detention stage would strain the judicial system. Further, the ...


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