On Feb. 5, 2018, the New Jersey Supreme Court issued a 5-2 decision in State v. Dickerson, limiting the discovery the state must make available to defendants facing a pretrial detention hearing. It is yet another in a series of decisions interpreting New Jersey’s new Criminal Justice Reform Act (CJRA) and the first to discuss discoverability of search warrant affidavits. In so doing, the opinion places what we think is an unnecessary and impractical limit on discovery during this important pretrial phase of a criminal case. For the reasons expressed below, we think that the dissent written by Justice Albin is the better reasoned and reaches a fairer, more practical result.
The defendant, Melvin Dickerson, was arrested at a unisex hair salon where drugs, guns and various documents addressed to Dickerson were seized when a search warrant was executed. A complaint charging Dickerson with various crimes was issued later that day based on an affidavit stating in part that the arrest was “pursuant to the execution of a search warrant.” The state moved for Dickerson’s pretrial detention, and the main issue on appeal was whether the trial court erred in requiring the state to disclose the search warrant affidavit to the defense for its use at the detention hearing—a holding affirmed by the Appellate Division.
Rule 3:4-2(c) governs discovery when the prosecution seeks pretrial detention. As pertinent here, it requires the prosecution to turn over to the defense at the time of the defendant’s first court appearance any available preliminary incident report and affidavit of probable cause; “all statements or reports relating to the affidavit of probable cause;” “all statements or reports relating to additional evidence the State relies on to establish probable cause at the [detention] hearing;” statements or reports relating to safety of the community and other factors to be considered in deciding whether to release the defendant; and all exculpatory evidence.
Although it would seem that a search warrant affidavit is a “statement or report” as described in Rule 3:4-2(c), the court, per Justice Solomon, reversed, holding that there was no requirement for automatic disclosure of a search warrant affidavit at this phase of the case, although such disclosure is mandated if the affidavit contains exculpatory material. The affidavit must be disclosed later under R. 3:13-3 when the defendant is indicted or a plea offer made. Moreover, the court agreed that a trial court can order disclosure before a detention hearing “when appropriate.”
In ruling out automatic disclosure, the court reasoned that the discovery rule should “not impose impractical demands on law enforcement,” noting the “strong confidentiality protections” for search warrant affidavits because they may describe ongoing investigations and identities of confidential informants—even though in this case, as pointed out by the dissent, the prosecution did not seek a protective order or argue that such risks existed. The court held that the affidavit supporting the warrant need not be disclosed because the state did not mention the search warrant affidavit in its affidavit of probable cause for the arrest and did not rely on it at the detention hearing, even though (a) the state mentioned the warrant itself; (b) the defendant was arrested at the time and place that the search warrant was executed; and (c) the defendant was charged with possessing the contraband found.
Calling the majority’s holding a “crabbed interpretation of Rule 3:4-2(c),” the dissent argued that the search warrant affidavit was “readily available information” needed not only by the defense but also by the trial court in determining whether a defendant should be detained. We agree with the dissent that by this ruling, the court has placed in the prosecution’s hands “a guidebook … on how to scrimp on its discovery obligations,” telling it that by not mentioning in its arrest documents the affidavit behind a search warrant, disclosure of that affidavit will likely not be required and certainly will not be automatic. We also agree with the dissent that Rule 3:4-2(c) requiring disclosure of “all statements and reports relating to” various items listed in the rule requires disclosure of a search warrant affidavit because the affidavit provides information about the connection, or no connection, between contraband found and the defendant. Finally, we agree that if, in a particular case, disclosure of the affidavit would jeopardize an ongoing investigation, a confidential informant or another witness, a protective order or authorization for redaction of that information could be sought by the state to avoid such jeopardy.
In short, we would favor automatic disclosure. We fear that this decision will lead to the unfair withholding of easily available relevant information at a critical stage of criminal cases and more litigation than would otherwise be necessary over this disclosure issue.