STATE OF NEW JERSEY VS. D.H. (17-01-0086, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5927-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.H.,
Defendant-Appellant.
______________________________
Submitted September 10, 2019 – Decided September 26, 209
Before Judges Messano and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 17-01-0086.
Jacobs & Barbone, PA, attorneys for appellant (Louis
Michael Barbone, on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John Joseph Santoliquido, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant D.H. appeals from the denial of his motion for a Franks v.
Delaware1 hearing to challenge the veracity of the testimony that provided the
basis for a search warrant for weapons issued pursuant to the Prevention of
Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant argues
that the fruits of that search should be suppressed. After reviewing the record,
we are satisfied that defendant's motion for a Franks hearing was properly denied
for the reasons set forth in the trial judge's thorough and well-reasoned letter
opinion. We agree with Judge Waldman that defendant failed to make a
substantial preliminary showing that the testimony the court relied upon to issue
the PDVA search warrant contained a deliberate falsehood or exhibited reckless
disregard of the truth.
I.
On November 23, 2016, a judge issued a domestic violence temporary
restraining order (TRO) against defendant based on the ex parte telephonic
testimony of Z.C. Z.C. alleged that defendant had harassed her. During the
telephonic hearing, the judge inquired whether defendant possessed any
1
438 U.S. 154 (1978); see also State v. Howery, 80 N.J. 563, 568 (1979)
(holding that under the New Jersey Constitution, "New Jersey courts, in
entertaining veracity challenges, need go no further than is required as a matter
of Federal Constitutional law by Franks v. Delaware").
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weapons. After determining that there was probable cause to believe that
defendant possessed firearms in either of two residential premises, the judge
issued a search warrant pursuant to N.J.S.A. 2C:25-28(j). The execution of that
search warrant by police revealed firearms, other weapons, hollow-point
ammunition, a high-capacity magazine, and controlled substances.
On December 15, 2016, a different judge held a plenary hearing to decide
whether to convert the domestic violence TRO into a final restraining order
(FRO). After hearing testimony from both defendant and Z.C., this judge
concluded that Z.C. failed to prove the predicate offense of harassment by a
preponderance of the evidence. The judge found that the heated encounters
between defendant and Z.C. were "domestic contretemps" not rising to the level
of domestic violence. On that basis, the judge denied Z.C.'s request for an FRO
and dismissed the TRO. So far as the plenary hearing record before us indicates,
the judge did not make explicit credibility findings with respect to the testimony
of either defendant or Z.C.
Defendant was subsequently charged with multiple weapon and drug
offenses, including three counts of possession of a firearm by a "certain person,"
that is, a person who has previously been convicted of a predicate indictable
crime. N.J.S.A. 2C:39-7(b)(1). Defendant moved to suppress the evidence that
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had been seized pursuant to the PDVA search warrant. A third judge, Judge
Jeffrey J. Waldman, denied defendant's motion for a Franks hearing in a ten-
page letter-opinion. This Court denied defendant's motion for leave to file an
interlocutory appeal. Defendant thereafter pled guilty to one of the certain
persons gun charges pursuant to a plea agreement under which all remaining
charges were dismissed. Defendant was sentenced in accordance with his plea
agreement to a State Prison sentence with a five-year period of parole
ineligibility.
Defendant in this appeal contends:
POINT I
WHERE A TRO AFFIANT LATER RECANTS
THOSE MATERIAL FACTS NECESSARY TO
ESTABLISH AN ACT OF DOMESTIC VIOLENCE
AT A SUBSEQUENT FRO TRIAL, A
SUBSTANTIAL PRELIMINARY SHOWING OF
FALSITY HAS BEEN ESTABLISHED AND A
FRANK'S [sic] HEARING MUST BE CONVENED.
POINT II
DEFENDANT MADE A SUBSTANTIAL
PRELIMINARY SHOWING OF MATERIAL
FACTUAL MISREPRESENTATIONS AND
FLASEHOODS BY THE DV APPLICANT BASED
UPON HER SUBSEQUENT TESTIMONY AT TRIAL
AND HER FRAUDULENT PROSECUTION OF A
PATERNTIY ACTION AGAINST THE
DEFENDANT.
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II.
As the New Jersey Supreme Court has recently reaffirmed, "[a] search that
is executed pursuant to a warrant is 'presumptively valid,' and a defendant
challenging the issuance of that warrant has the burden of proof to establish a
lack of probable cause 'or that the search was otherwise unreasonable.'" State
v. Boone, 232 N.J. 417, 427 (2017) (quoting State v. Watts, 223 N.J. 503, 513-
14 (2015) (citation omitted)). It is well-established that a defendant is not
automatically entitled to a hearing to challenge the veracity of a supporting
affidavit. Rather, as the New Jersey Supreme Court explained in Howery, "[t]he
limitations imposed by Franks are not insignificant." 80 N.J. at 567. "First, [a]
defendant must make a 'substantial preliminary showing' of falsity in the
warrant." Ibid. (quoting Franks, 438 U.S. at 170). The defendant "must allege
'deliberate falsehood or reckless disregard for the truth.'" Ibid. Furthermore,
"the misstatements claimed to be false must be material to the extent that when
they are excised from the affidavit, that document no longer contains facts
sufficient to establish probable cause." Id. at 568 (citing Franks, 438 U.S. at
171).
Typically, challenges to the veracity of a search warrant affidavit under
Franks and Howery occur in cases where law enforcement affiants are seeking
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a criminal-law search warrant. Defendant asks us to extend the Franks doctrine
to PDVA search warrants issued pursuant to N.J.S.A. 2C:25-28(j). Defendant
cites no authority for the proposition that a Franks challenge applies in these
circumstances. It is important to note, however, that the State does not appear
to contest that a PDVA search warrant can be challenged based on deliberate
and material misstatements made by a civilian who is applying for a domestic
violence TRO.
We need not decide whether under the United States and New Jersey
Constitutions, a PDVA search warrant may be invalidated if it would not have
been issued but for a deliberate falsehood or reckless disregard for the truth by
a civilian who is seeking a domestic violence TRO. The State does not contest
that a PDVA search warrant predicated on such false testimony is
constitutionally defective and that the exclusionary rule and "fruit of the
poisonous tree" doctrine is properly invoked if the search warrant is found
defective on those grounds.
In State v. Dispoto, the New Jersey Supreme Court made clear that
"'evidence seized pursuant to a defectively authorized search warrant' is
inadmissible in a subsequent criminal prosecution." 189 N.J. 108, 121 (2007)
(quoting State v. Cassidy, 179 N.J. 150, 159 (2004), abrogated on other grounds
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by State v. Edmonds, 211 N.J. 117 (2012)). In Dispoto, law enforcement
officers were directly involved in the process of obtaining the domestic violence
TRO—a circumstance that the municipal court judge hearing the TRO
application thought to be "odd." Id. at 115. The Court in Dispoto thus had no
occasion to consider whether the suppression remedy would apply as well with
respect to a defective TRO application in which there is no law enforcement
involvement.
Any question concerning the applicability of the suppression remedy to
civilian TRO applications appears to have been resolved in State v. Hemenway.
__ N.J. __ (2019) (slip op. at 3-4). The Court suppressed the fruits of a search
authorized by a defective PDVA search warrant in a case where law enforcement
played no role in the TRO application. Hemenway, __ N.J. __ (slip op. at 35).
The Court definitively held that a search warrant issued pursuant to N.J.S.A.
2C:25-8(j), while civil in nature, must meet the probable cause threshold that
applies to all warrants under the Fourth Amendment and its state constitutional
counterpart, Article 1, par. 7. Hemenway, __ N.J. __ (slip op. at 16, 33).
The facts in Hemenway did not present an opportunity for the Court to
consider whether the principles undergirding Franks apply to a search warrant
issued upon information contained within a civilian's application for a domestic
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violence TRO. We nonetheless read Hemenway to apply to any constitutional
defect in a PDVA search warrant. The probable cause requirement, of course,
is a cornerstone of Fourth Amendment protections and is explicitly set forth in
the text of the Fourth Amendment. 2 But so too is the requirement that all
warrants be "supported by Oath or affirmation." U.S. Const. amend. IV. We
therefore view a defect with respect to the truthfulness of a sworn TRO
application to be as fundamental, for purposes of constitutional analysis and
remedy, as a defect pertaining to the existence of probable cause. Indeed, a
finding of a material3 falsehood under the Franks standard would be tantamount
to a finding that probable cause did not exist to support the warrant.
The Court in Hemenway at the very outset of its opinion emphasized that
"[n]o principle is more firmly rooted in our Federal and State Constitutions than
the right of the people to be free from unreasonable searches of their homes."
__ N.J. __ (slip op. at 2). The Court later expounded on that principle, noting,
2
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized." U.S. Const. amend. IV (emphasis added).
3
As noted above, under Howery, a misstatement is material only if, when
excised from the affidavit, "that document no longer contains facts sufficient to
establish probable cause." 80 N.J. at 568.
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"[w]hether a government official is armed with a criminal warrant or a civil or
administrative warrant, 'physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.'" Hemenway, __ N.J.
__ (slip op. at 16) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313
(1972)). We believe this foundational principle would be ill-served if any form
of court-authorized search of a home were based on sworn testimony that was
deliberately false or that exhibited a reckless disregard for the truth.
III.
We next address whether in this particular instance, defendant has
established the basis for a Franks hearing. Defendant points to inconsistencies
between Z.C.'s ex parte telephonic testimony in support of her TRO application
and her testimony at the plenary FRO hearing. Defendant contends, for
example, that in her TRO application testimony, Z.C. claimed that defendant
had threatened physical violence against her by "balling up his fists." Defendant
argues that her testimony at the FRO plenary hearing contradicted her earlier
testimony noting, for example, that she made no mention that defendant had
balled up his fists. After reviewing the record on appeal, we find no basis to
disturb Judge Waldman's conclusion that that any discrepancies between Z.C.'s
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ex parte TRO application testimony and her subsequent FRO testimony were
minor and not sufficient to entitle defendant to a Franks hearing.
We take this opportunity to make clear that testimony in support of a TRO
application is not to be deemed false for purposes of Franks analysis merely
because an application for an FRO ultimately is denied after a plenary hearing.
For one thing, the legal standard for obtaining an FRO—a preponderance of the
evidence—is higher than the probable cause standard needed to issue a TRO and
PDVA search warrant. Furthermore, an FRO judge at a contested plenary
hearing may have the benefit of the defendant's testimony and other evidence.
In this instance, as Judge Waldman aptly noted, defendant's plenary hearing
testimony cast the predicate act encounter in a new light, showing it to be
domestic contretemps rather than domestic violence.
IV.
Finally, we note that neither party has raised any issue arising from the
Supreme Court's recent decision in Hemenway, which was decided after the
briefs were filed in this appeal. Neither party has sought leave to file a
supplemental brief. Our review of the record indicates that the PDVA search
warrant was issued upon a finding of probable cause in accordance with the rule
set forth in Hemenway.
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Affirmed.
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