by Douglas Ankney

The Supreme Court of New Jersey announced its adoption of the framework articulated by the California Supreme Court in People v. Luttenberger, 784 P.2d 633 (Cal. 1990), for situations where a defendant requests material not subject to discovery by rule in order to challenge the veracity of affidavits supporting probable cause for issuance of warrants.

A confidential informant (“CI”) contacted a detective and told him that Herby Desir stored and sold Methylenedioxy-N-ethylcathinone (aka “Molly”) in his home. In his affidavit supporting probable cause for the issuance of a search warrant, the detective swore to the following: that the CI had provided reliable information in the past, and acting on the CI’s tip, the detective conducted two consensual interceptions of phone calls between the CI and Desir. Over the course of those two calls, the detective heard the parties discuss the sale of Molly and firearms. During the second call, Desir requested the CI to come to his house. The detective followed the CI to Desir’s house and monitored the residence until the CI exited and met with the detective at a pre-arranged location. The CI gave the detective a substance which the detective turned over to the Union County Prosecutor’s Office Laboratory. Lab Reports confirmed the substance to be Molly. [It’s important to note at this point that nowhere in the affidavit did the detective mention he provided the money (“buy money”) with which the CI used to complete the alleged purchase.]

Based upon the detective’s affidavit, a judge issued a search warrant for Desir’s home. Police recovered, inter alia, 125 ounces of Molly and a handgun. He was indicted on several offenses related to the items recovered in his home. However, Desir was not charged with any offense related to the alleged controlled purchase of Molly by the CI.

Desir filed a motion to suppress the evidence seized from his home and for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). By counsel, he argued that the detective’s affidavit “was so defective and/or made with reckless disregard for the truth that the judge who signed the warrant could not possibly have fairly evaluated the existence of probable cause.” Desir further asserted that, contrary to the detective’s averments in his affidavit, he did not sell Molly from his home.

Five months later, Desir filed a motion to compel discovery pursuant to New Jersey’s Rules of Criminal Procedure, Rule 3:13-3(b), seeking, among other things, any proof of the buy money; the Lab Reports; and either a transcript or audio recording of the intercepted phone calls.

The trial court denied Desir’s suppression motion and the requested Franks hearing, reasoning that Desir had failed to produce any evidence that the detective’s averments in the affidavit were untrue. Six months later, a different judge denied the motion to compel discovery because the requested materials were not related to the offenses for which Desir was being prosecuted. Desir entered a guilty plea but reserved his right to appeal the denials of his motions.

The Appellate Division reversed the denial of Desir’s motion to compel discovery, concluding that: “because defendant was not able to investigate anything in the detective’s affidavit by obtaining routine discovery ... [Desir] did not have a fair opportunity to pursue his motion to suppress ... or to obtain a Franks hearing.” The Appellate Division allowed discovery of any police reports prepared in connection with Desir’s case, including the Lab Reports, and any video and audio recordings of the intercepted conversations. The State sought further review, and the New Jersey Supreme Court granted certification.

The Court observed that it had not previously considered the interplay of New Jersey’s discovery rules and the showing required to obtain discovery of materials that might enable a defendant to make the showing required to obtain a Franks hearing. In New Jersey, an accused has a right to broad discovery. State v. Hernandez, 225 N.J. 451 (2016). Rule 3:13-3(b)(1) obligates the State to provide full discovery when an indictment is returned or unsealed and requires disclosure of all exculpatory information or material. State v. Robinson, 229 N.J. 44 (2017). However, discovery is not unlimited. Hernandez. One of the “significant limitations on defendant’s discovery rights is the chilling and inhibiting effect that discovery can have on material witnesses....” State v. D.R.H., 127 N.J. 249 (1992). New Jersey recognizes that informants play an indispensable role in police work; thus, the privilege against disclosing the identity of the informant has long been considered essential to effective law enforcement. State v. Williams, 356 N.J. Super. 599 (App. Div. 2003).

Desir’s claim required consideration of his right to discovery balanced with the State’s right to protect the CI’s identity. Complicating matters was the fact that Rule 3:13-3(b)(1) did not apply because Desir sought materials related to an alleged offense for which he was not indicted; thus, those materials would not tend to prove or disprove a fact at issue in his trial. State v. Richardson, 452 N.J. Super. 138 (App. Div. 2017). But at the same time, the U.S. Supreme Court held that a defendant is entitled to a hearing when offering proof that the affidavit underlying the probable cause determination for issuance of the warrant contained false statements that were made deliberately or in “reckless disregard for the truth.” Franks.

The standard for obtaining a Franks hearing is exacting. A defendant must first establish by a preponderance of evidence that the alleged false statement in the affidavit was made either deliberately or in reckless disregard of the truth and that it was material to the finding of probable cause. If a defendant makes such a showing, then “with the affidavit’s false material set to one side, [if] the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Franks.

In the instant case, Desir had not met his burden under Franks. However, the materials he sought could produce evidence to meet the Franks standard. For example, if the Lab Reports did not exist or if they contradicted the affidavit in a material way (such as failing to show the substance was Molly), Desir would be entitled to a Franks hearing.

The Luttenberger case mirrored these very issues. In Luttenberger, the affidavit of probable cause supporting the search warrant contained the officer’s statement that he was provided information by a reliable informant – but he did not describe the basis for his assertion the informant was reliable. In challenging the warrant, the defendant did not allege the officer’s affidavit was insufficient in providing probable cause, but he sought information to support a challenge to the truthfulness of the statements within the affidavit.

Ultimately, the California Supreme Court resolved the issue by adopting a standard that is less demanding than that of Franks and that also protects the government’s interest in protecting the identity of informants. First, the defendant must offer evidence casting reasonable doubt on the veracity of material statements made by the affiant. He should include affidavits supporting his assertions of misstatements or omissions in the warrant affidavit; specify the information he seeks; the basis for his belief the information exists; and the purpose for which he seeks it. Luttenberger.

The trial judge then reviews the sought-after materials in camera. The judge may then order production of only those documents that are relevant to the material inaccuracies asserted by the defendant. The materials are to be redacted to prevent even seemingly innocuous details from revealing the informant’s identity. Luttenberger.

Adopting this Luttenberger standard, the New Jersey Supreme Court reversed the Appellate Division’s holding with respect to the audio recordings (they were not subject to redaction and would disclose the informant’s identity). However, Desir identified with sufficient particularity the Lab Reports. He provided a plausible reason for his request (i.e., the buy money wasn’t mentioned, and the CI could have simply pocketed the money after giving the detective a harmless substance). If the in camera examination showed the Lab Reports did not exist or contradicted the detective’s affidavit in a material way, it would support Desir’s argument that the remainder of the detective’s affidavit would not provide sufficient probable cause for the warrant to issue, the Court explained. The trial judge would then order production of those documents, appropriately redacted, to Desir for the purposes of a Franks hearing.

Accordingly, the Court affirmed and modified the judgment of the Appellate Division by limiting Desir’s discovery only to the redacted Lab Report and remanded to the trial court for further consideration under the standard adopted in the opinion. See: State v. Desir, 244 A.3d 737 (N.J. 2021).

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