No Suppression Where Cops Did Not Appear before
Judge for Warrant - State v. Gioe

[7/2/08 - 10:27] The Rules of Court generally require that a law enforcement
officer who seeks the issuance of a search warrant personally appear before
an authorized judge and swear to the contents of his affidavit in support of
the warrant. (Rule 3:5-3(a)). In today's Appellate Division decision in
State v. Gioe, the Court ruled that when there is a procedural violation of
this Rule, suppression of the evidence is not necessarily required. In Gioe,
the police faxed an affidavit to the reviewing municipal court judge. (The
application for the search warrant was not being made under exigent
circumstances such as would normally justify a telephonic warrant.) The
judge reviewed the paperwork and faxed a signed copy of the search warrant
to the police. The execution of the warrant resulted in the recovery of
criminal evidence.

The defendant's challenge to the search warrant was based upon a violation
of the Rule requiring a personal appearance by the officer seeking the
warrant before the reviewing judge. In sustaining the trial court's order
denying suppression of the evidence, the Appellate Division adopted a new,
two-part test, holding that before allowing suppression in a case like this,
courts should consider:

 1.) Whether there was prejudice in the sense that the search might not have
occurred had the proper procedure in the Rule been followed and

2.) Whether there is evidence of bad faith by the police as shown by a
deliberate disregard for the Rule.

Link to State v. Gioe:
http://www.judiciary.state.nj.us/opinions/a1214-06.pdf