State v. Herby v. Desir (083584)(Union County & Statewide)

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State v. Herby V. Desir (A-43-19) (083584)

Argued October 13, 2020 -- Decided February 9, 2021

SOLOMON, J., writing for the Court.

In this appeal, the Court considers whether defendant Herby Desir is entitled to
discovery regarding the controlled purchase of narcotics by a confidential informant (CI).
Defendant was not charged in connection with that controlled purchase; however, the
purchase formed the probable cause for issuance of a search warrant for defendant’s
home, and execution of the search warrant led to charges against defendant for multiple
drug and weapons offenses.

The affidavit submitted by a detective from the Union County Prosecutor’s Office
(UCPO) in support of the search warrant application stated that a CI, who had previously
provided reliable information that led to arrests, had contacted the detective and claimed
defendant stored and sold Methylenedioxy-N-ethylcathinone (sometimes referred to as
Molly) at his home. According to the affidavit, the detective intercepted two phone calls
between the CI and defendant and overheard them discuss the sale of Molly and firearms.
The affidavit stated that, during the second call, defendant told the CI to come to his
house. The detective followed the CI to defendant’s residence and monitored the home
until after the CI exited. Afterward, the detective and the CI met at a pre-arranged
location, where the CI gave the detective a substance obtained from defendant.

The affidavit stated that the “suspected ‘Molly’ obtained from [defendant] was
submitted to the [UCPO] Laboratory where it . . . tested positive for [Molly,] a Schedule I
controlled dangerous substance.” The affidavit did not state that the detective provided
the CI with “buy money” with which to purchase the drugs. Based solely on that
affidavit, a judge granted a no-knock search warrant for defendant’s home.

Defendant moved to suppress the contraband seized during the execution of the
warrant and for a Franks hearing, which is a hearing to challenge the veracity of an
affidavit upon which a facially valid search warrant is based. Counsel asserted that
defendant did not sell Molly from his home. Five months after filing his motion to
suppress and for a hearing, defendant moved to compel discovery, seeking the initial
investigation report, any proof of money provided to the CI for the controlled buy,
laboratory reports, and a transcript or audio recording of the intercepted calls.

1
 The trial court denied defendant’s motion to suppress and for a Franks hearing.
Six months later, a different judge considered and denied defendant’s motion to compel
discovery. Defendant pled guilty to possession of Molly with intent to distribute,
reserving the right to appeal the denial of his motions.

The Appellate Division reversed the denial of defendant’s motion to compel
discovery and remanded for further proceedings. 461 N.J. Super. 185, 187 (App. Div.
2019). The court permitted defendant, after receiving discovery, “either to withdraw his
plea and proceed to trial . . . or to accept his earlier conviction and sentence.” Id. at 194.
Even though the indictment did not charge defendant with the sale of narcotics to the CI,
the Appellate Division found that, under provisions of Rule 3:13-3(b)(1), the State should
have automatically given defendant the laboratory report -- along with any police reports
and video and sound recordings -- once the indictment was filed. Id. at 193.

The Court granted certification. 240 N.J. 553 (2020).

HELD: A defendant seeking discovery in connection with a Franks hearing may -- in
the trial court’s discretion and on showing a plausible justification that casts reasonable
doubt on the veracity of the affidavit -- be entitled to limited discovery described with
particularity that is material to the determination of probable cause. The Court affirms
and modifies the Appellate Division’s judgment and remands to the trial court for
consideration under the standard adopted in this decision.

1. Rule 3:13-3(b)(1) codifies the criminal defendant’s right to automatic post-indictment
discovery of the evidence the State has gathered in support of its charges, including
“exculpatory information or material” and a list of other “relevant material[s].” To
qualify as “relevant material,” the evidence must have a tendency in reason to prove or
disprove a fact of consequence to the determination of the action. Courts have the
inherent power to order discovery beyond the automatic discovery provisions of Rule
3:13-3(b) when justice so requires. But the discovery process is not a fishing expedition
or an unfocused, haphazard search for evidence. One significant limit on defendants’
discovery rights is the chilling and inhibiting effect that discovery can have on material
witnesses. Recognizing that CIs play an indispensable role in police work, New Jersey
has a privilege against disclosing the identity of the informant. (pp. 12-14)

2. Defendants seeking to challenge the basis of a search warrant must make an
evidentiary showing before a hearing will be granted: they must first establish by a
preponderance of the evidence that the allegedly false statement in the affidavit was made
either deliberately or in reckless disregard of the truth. See Franks v. Delaware, 438 U.S.
154, 155-56 (1978). In State v. Howery, the Court adopted and repeated the principles of
Franks. 80 N.J. 563, 567 (1979). Under the Franks/Howery standard, a defendant’s
“attack must be more than conclusory,” “supported by more than a mere desire to cross-
examine,” and “accompanied by an offer of proof.” Franks, 438 U.S. at 171. (pp. 15-20)

2
3. In People v. Luttenberger, the California Supreme Court “adopt[ed] a preliminary
showing requirement . . . that is somewhat less demanding than the” showing Franks
requires “for purposes of discovery motions” challenging warrant affidavits “based on
statements of an unidentified informant.” 784 P.2d 633, 646 (Cal. 1990). Specifically,
the Luttenberger court held that, “[t]o justify in camera review and discovery, preliminary
to a subfacial challenge to a search warrant, a defendant must offer evidence casting
some reasonable doubt on the veracity of material statements made by the affiant.” Ibid.
The court noted that, like requests for a Franks hearing, such discovery requests “should
include affidavits supporting defendant’s assertions of misstatements or omissions in the
warrant affidavit. Further, a defendant should, if possible, specify the information he
seeks, the basis for his belief the information exists, and the purpose for which he seeks
it.” Ibid. The Luttenberger court applied those requirements separately to discovery
requests and motions for hearings, id. at 647, and then described what steps a trial court
should take after a preliminary showing has been made, id. at 648. The Luttenberger
court provided guidance about when, and, after redactions, what materials should be
disclosed to defendants, to “assure the defendant of a judicial check on possible police
misrepresentations, while preventing both unfounded fishing expeditions and inadvertent
revelations of the identity of confidential police informants.” See ibid. (pp. 20-25)

4. The Court adopts the Luttenberger standard and will require a defendant to describe
with reasonable particularity the information sought in discovery, sustained by a plausible
justification “casting a reasonable doubt on the truthfulness of statements made in the
affidavit.” Id. at 647. The discovery request should be buttressed by support for
assertions of misstatements or omissions in the search warrant affidavit that are material
to the determination of probable cause, the basis for believing that the information exists,
and the purpose for which the information is sought. Application of this standard and the
determination of whether it has been met in an individual case rest in the sound discretion
of the trial judge, who will review the appropriately redacted discovery in camera. Only
after such in camera review will the judge determine whether the discovery sought
contradicts material facts set forth in the affidavit, should therefore be disclosed, and to
what limitations or redactions the discovery might be subject. (pp. 26-28)

5. Applying that standard here, the Court first notes that the requested materials do not
pertain to the “determination” of the charges against defendant, but rather to uncharged
conduct; they are therefore not “relevant” within the meaning of Rule 3:13-3(b)(1), nor
are they exculpatory. As a result, the materials were not subject to automatic disclosure
under Rule 3:13-3(b)(1). (pp. 28-30)

6. The Court thus considers whether, to ensure the fairness of judicial proceedings,
materials identified with reasonable particularity that fall beyond the scope of Rule 3:13-
3(b)(1), but may call into question the validity of a search warrant affidavit, are
discoverable to defendants who have shown a plausible justification for requesting the
materials. Defendant clearly met the standard of reasonable specificity as to the lab

3
report, which was described in the affidavit. Defendant barely met the standard of
plausible justification, given the importance of the lab report to the warrant affidavit, the
dependence of the charges on the execution of that warrant, and the affiant’s omission of
any mention of “buy money” in the affidavit. In contrast, the other requested materials
were broadly categorized, would not be amenable to necessary redactions, and were not
identified with reasonable specificity. And the only justification offered in support of
those materials was defendant’s blanket denial, which is not sufficient. The Court
stresses, moreover, that defendant’s preliminary showing as to the lab report does not
mean he is guaranteed access to that information. Rather, the court will have to review
the report in camera. The ultimate discovery decision resides in the discretion of the trial
court. The Court underscores its adherence to the Franks/Howery framework and
reemphasizes the importance of preserving the confidentiality of informants. (pp. 30-35)

7. The Court acknowledges the error of the trial court in hearing defendant’s motion to
compel discovery six months after hearing his motion to suppress evidence. The Court
urges counsel to file these motions together and courts to schedule these motions close in
time. The Court relies on the trial courts to hold defendants to the proofs required by the
preliminary standard adopted in this decision and, when defendants make that requisite
showing, to exercise their discretion, after an in camera review, in determining whether,
and in what manner, discovery should be allowed. (p. 35)

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.

JUSTICE ALBIN, dissenting, agrees that defendant is entitled to discovery as set
forth in Luttenberger but finds that the majority violates the essential tenets of that
standard, citing the majority’s announcement that a defendant’s sworn statement
contradicting averments in a warrant affidavit will not be sufficient to cast “reasonable
doubt” on the veracity of the affidavit and therefore to entitle him to an in camera
hearing. That pronouncement, Justice Albin notes, presupposes that the averments in a
police officer’s affidavit will always be truthful and that the averments in a defendant’s
affidavit will always be false -- a notion soundly rejected by other courts. Unlike the
Luttenberger court, Justice Albin adds, the majority also requires the defendant to have
telepathic powers -- to always be able to identify the specific items of discovery withheld
from him. Crafting an illusory particularity requirement that defendants cannot
reasonably meet will throttle meritorious claims for discovery, in Justice Albin’s view.
Justice Albin would remand to the trial court for application of the Luttenberger standard
as it is and would require as a prerequisite to defendant’s discovery request that he
support his claim by sworn statements in an affidavit or certification. Justice Albin
would also make clear that a pre-Franks discovery motion must always be resolved
before a court considers whether a defendant is entitled to a Franks hearing.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ-
VINA join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN filed a dissent, in
which JUSTICES LaVECCHIA and PIERRE-LOUIS join.
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 SUPREME COURT OF NEW JERSEY
A-43 September Term 2019
083584

State of New Jersey,

Plaintiff-Appellant,

v.

Herby V. Desir, a/k/a
Johnathan Desir,

Defendant-Respondent.

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
461 N.J. Super. 185 (App. Div. 2019).

Argued Decided
October 13, 2020 February 9, 2021

Steven A. Yomtov, Deputy Attorney General, argued the
cause for appellant (Gurbir S. Grewal, Attorney General,
attorney; Steven A. Yomtov, of counsel and on the
briefs).

Alicia J. Hubbard, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Alicia J. Hubbard, of counsel
and on the briefs).

Patrick F. Galdieri, II, Mercer Assistant Prosecutor,
argued the cause for amicus curiae County Prosecutors
Association of New Jersey (Angelo J. Onofri, Mercer
County Prosecutor, President, attorney; Patrick F.
Galdieri, II, of counsel and on the brief).

1
 Elyla Huertas argued the cause for amicus curiae
American Civil Liberties Union of New Jersey
(American Civil Liberties Union of New Jersey
Foundation, attorneys; Elyla Huertas, Alexander
Shalom, and Jeanne LoCicero, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

A confidential informant (CI) made a controlled purchase of narcotics

from defendant. That purchase formed the probable cause for issuance of a

search warrant for defendant’s home. Execution of the search warrant led to

charges against defendant for multiple drug and weapons offenses. Defendant

was not charged with the underlying narcotics sale to the CI.

Defense counsel filed a motion to suppress the evidence seized from

defendant’s home pursuant to the search warrant and for a Franks hearing1

because defendant claimed he never sold Methylenedioxy-N-ethylcathinone

1
Named for the case in which the United States Supreme Court first ordered
such a hearing, a Franks hearing is an evidentiary proceeding in which a
defendant, upon a certain showing discussed later in this opinion, may
challenge the veracity of an affidavit upon which a facially valid search
warrant was based. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978); see
also State v. Robinson, 200 N.J. 1, 7 (2009) (stating that when “a defendant
challeng[es] the veracity of the allegations contained in an affidavit in support
of a warrant . . . ‘if the allegedly false statement is necessary to the finding of
probable cause, the Fourth Amendment requires that a hearing be held at the
defendant’s request’” (quoting Franks, 438 U.S. at 156)).
2
(sometimes referred to as Molly) from his house. Five months later, defendant

filed a motion to compel discovery. Defendant sought items related to the

uncharged sale by defendant to the CI, including a laboratory report mentioned

in the search warrant affidavit, any police paperwork, and recordings of the

phone calls between defendant and the CI. The State did not provide the

requested discovery.

The trial court denied defendant’s motion to suppress and for a Franks

hearing, and months later denied his motion to compel discovery. Defendant

then pled guilty to second-degree possession of Methylenedioxy-N-

ethylcathinone with intent to distribute.

Defendant appealed. The Appellate Division determined that defendant

was entitled to the discovery he requested and remanded to the trial court so

that the defendant could elect to either withdraw his guilty plea or accept his

earlier conviction and sentence.

The issue in this appeal is whether defendant is entitled to discovery

regarding the uncharged purchase of narcotics by the CI. We determine that a

defendant seeking discovery in connection with a Franks hearing may -- in the

trial court’s discretion and on showing a plausible justification that casts

reasonable doubt on the veracity of the affidavit -- be entitled to limited

discovery described with particularity that is material to the determination of

3
probable cause. We therefore affirm and modify the Appellate Division’s

judgment and remand to the trial court for consideration under the standard

adopted herein.

I.

A.

We derive the facts of this case from the trial and appellate records,

including the affidavit submitted by a detective from the Union County

Prosecutor’s Office in support of the search warrant application.

That affidavit stated that a CI, who had previously provided reliable

information that led to arrests, had contacted the detective and claimed

defendant stored and sold Molly at his home. According to the affidavit, the

detective acted on that tip by conducting two consensual interceptions of

telephone conversations between the CI and defendant, and he overheard the

two discuss the sale of Molly and firearms. The affidavit stated that, during

the second call, defendant told the CI to come to his house. The detective

followed the CI to defendant’s residence and monitored the home until after

the CI exited. Afterward, the detective and the CI met at a pre-arranged

location, where the CI gave the detective a substance obtained from defendant.

The affidavit stated that the “suspected ‘Molly’ obtained from

[defendant] was submitted to the Union County Prosecutor’s Office Laboratory

4
where it was analyzed and tested positive for [Molly,] a Schedule I controlled

dangerous substance.” The affidavit did not state that the detective provided

the CI with “buy money” with which to purchase the drugs.

Based solely on that affidavit, a judge granted a no-knock search warrant

for defendant’s home, where the police recovered 125 ounces of Molly, a

handgun, hollow point bullets, currency, and drug paraphernalia.

B.

A Union County grand jury thereafter indicted defendant on the

following drug possession charges relating to Methylenedioxy-N-

ethylcathinone: third-degree possession, N.J.S.A. 2C:35-10(a)(1); second-

degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and

N.J.S.A. 2C:35-5(b)(4); third-degree possession with intent to distribute within

1,000 feet of a school, N.J.S.A. 2C:35-7; and second-degree possession with

intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-

7.1. The grand jury also charged defendant with second-degree possession of

a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a);

and fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f).

Defendant filed a motion to suppress the contraband seized by police

during the execution of the search warrant and for a Franks hearing. Defense

counsel argued that the search warrant affidavit “was so defective and/or made

5
with reckless disregard for truth that the judge who signed the warrant could

not possibly have fairly evaluated the existence of probable cause.” In support

of his motion for a Franks hearing, counsel asserted that, contrary to the

allegations in the search warrant affidavit, defendant did not sell Molly from

his home.

Five months later, defendant filed a motion to compel discovery

pursuant to Rule 3:13-3(b), seeking the detective’s initial investigation report,

any proof of money provided to the CI for the controlled buy, laboratory

reports, and a transcript or audio recording of the consensual interceptions

between defendant and the CI. Defendant reiterated his denial that he was

selling Molly out of his home and argued he was not on a “fishing expedition”

to determine the identity of the CI.

The trial court first heard argument on defendant’s motion to suppress

and for a Franks hearing. The court denied the motion, finding defendant had

failed to meet his burden of demonstrating that any of the statements in the

search warrant affidavit were untrue.

Six months later, a different judge considered and denied defendant’s

motion to compel discovery. The judge found defendant’s discovery request to

be a fishing expedition to uncover the identity of the CI. Relying in part on

the previous denial of defendant’s motion for a Franks hearing, the judge

6
concluded that further discovery relating to the validity of the warrant would

be irrelevant to the charges defendant faced.

Defendant pled guilty to second-degree possession of Methylenedioxy-

N-ethylcathinone with intent to distribute. He reserved his right to appeal the

denial of his motions to suppress and compel discovery. The trial court

sentenced defendant to a seven-year prison term with three-and-one-half years

of parole ineligibility. The remaining counts of the indictment were dismissed.

C.

The Appellate Division reversed the denial of defendant’s motion to

compel discovery and remanded for further proceedings. State v. Desir, 461

N.J. Super. 185, 187 (App. Div. 2019). The Appellate Division concluded

that,

because defendant was not able to investigate anything
in the detective’s affidavit by obtaining routine
discovery that should have been automatically provided
to him, defendant did not have a fair opportunity to
pursue his motion to suppress the evidence seized
during the search authorized by the warrant or to obtain
a Franks hearing.

[Id. at 194.]

The Appellate Division permitted defendant, after receiving discovery, “either

to withdraw his plea and proceed to trial . . . or to accept his earlier conviction

7
and sentence.” Ibid. (omission in original) (quoting State v. Cummings, 184

N.J. 84, 100 (2005)).

The Appellate Division decided that defendant needed access to the lab

report to “mount a viable attack on the validity of the search warrant.” Id. at

192. Thus, “the timing of the court’s consideration of the motion [to suppress]

unduly prejudiced defendant.” Ibid. Acknowledging a defendant’s already

heavy burden under Franks, the Appellate Division found the burden for this

defendant “even more onerous because the State had still not responded to

defendant’s request for specific information about the warrant application,

including a copy of the laboratory report.” Id. at 190. The Appellate Division

therefore held that considering the motion to compel discovery after denying

the motion to suppress “did nothing to remedy the prejudice defendant had

already suffered.” Id. at 192-93.

Even though the indictment did not charge defendant with the sale of

narcotics to the CI, the Appellate Division found that, under Rule 3:13-

3(b)(1)(C), the State should have automatically given defendant the laboratory

report -- along with any police reports, R. 3:13-3(b)(1)(E) and (H), and video

and sound recordings, R. 3:13-3(b)(1)(A) -- once the indictment was filed.

461 N.J. Super. at 193. As to the contention that defendant sought discovery

solely to determine the identity of the informant, the Appellate Division noted

8
that “defendant did not object to receiving redacted versions” of the records.

Ibid. Finally, the Appellate Division distinguished State v. Broom-Smith,2

noting that Broom-Smith involved a confirmatory drug analysis, while in this

case, the detective had no first-hand knowledge that the item he received was

Molly. Ibid.

We granted certification. 240 N.J. 553 (2020). We also granted amicus

curiae status to the County Prosecutors Association of New Jersey (CPA) and

the American Civil Liberties Union of New Jersey (ACLU).

II.

The State asserts that the Appellate Division’s decision is contrary to

Franks and State v. Howery3 since defendant did not meet the standard to

challenge the veracity of the search warrant affidavit. The State also claims

that Rule 3:13-3 does not entitle defendant to the information he seeks,

redacted or otherwise, because the information is not relevant to the charges

against him. The State further claims the Appellate Division’s holding risks

disclosure of the identity of confidential informants and will therefore have a

chilling effect on their use. The State relies on Broom-Smith for support and

2
406 N.J. Super. 228 (App. Div. 2009), aff’d, 201 N.J. 229 (2010).
3
80 N.J. 563, 571 (1979) (prospectively adopting the Supreme Court’s
holding in Franks).
9
argues its result controls here. Finally, the State asks this Court to follow

states which hold that when the credibility of an informant is at issue, but the

judicial officer has been found truthful, the defendant’s interest in disclosure is

less compelling.

Amicus CPA reiterates many of the State’s arguments but emphasizes

the importance of confidential informants and the “informer’s privilege.” The

CPA contends that redaction and in camera review do not protect confidential

informants because even general information may allow a seasoned drug

dealer to deduce the informant’s identity. The CPA argues that the need for

information in this case cannot outweigh the importance of protecting the

identity of the confidential informant.

Defendant argues for affirmance of the Appellate Division’s decision

and expresses concern that a contrary result would mean “no one can hold

accountable to the law those entrusted with the power to enforce the law,”

because false affidavits could be presented to a magistrate without recourse.

Defendant contends that the Franks standard is so high that defendants cannot

challenge affidavits without full and complete discovery. Furthermore,

defendant points to examples of discovery that must be provided “to allow the

defense to . . . examine the veracity of the State’s witnesses’ . . . accounts.”

Defendant therefore challenges the State’s reliance on the Franks/Howery

10
framework, arguing that existing case law allows “affidavits to exist in an

impenetrable tower of secrecy.” Lastly, defendant claims that the information

he seeks is relevant to the validity of the search warrant and challenges the

State’s reliance on Broom-Smith, emphasizing that the failure to conduct a

field test of the drugs in this case is a key distinction.

Amicus ACLU supports defendant’s arguments and emphasizes that the

court’s failure to permit him full discovery before proceeding with a hearing

on the evidentiary issue denied defendant a fair trial. The ACLU also argues

that remedies such as in camera review of evidence and redactions can protect

the rights of both CIs and defendants.

III.

The issue presented by this appeal is whether defendant is entitled to

discovery regarding the underlying search warrant affidavit, even though he

was not charged with the narcotics transaction referred to in that affidavit.

Answering that question requires review of our rules governing criminal

discovery generally, as well as applicable federal and New Jersey case law,

including Franks, Howery, and Broom-Smith. We begin with our rules for

discovery in criminal cases.

11
 A.

“In New Jersey, an accused has a right to broad discovery after the

return of an indictment in a criminal case.” State v. Hernandez, 225 N.J. 451,

461 (2016). Our “open-file approach to pretrial discovery in criminal matters

post-indictment” aims “[t]o advance the goal of providing fair and just

criminal trials.” State v. Scoles, 214 N.J. 236, 252 (2013).

Rule 3:13-3(b)(1) codifies the criminal defendant’s “right to automatic

and broad discovery of the evidence the State has gathered in support of its

charges.” State v. Stein, 225 N.J. 582, 594 (2016) (quoting Scoles, 214 N.J. at

252). That Rule “obligates the State to provide full discovery . . . when an

indictment is returned or unsealed,” State v. Robinson, 229 N.J. 44, 72 (2017),

“[e]xcept for good cause shown,” R. 3:13-3(b)(1). Full discovery, under Rule

3:13-3(b)(1), “shall include exculpatory information or material.” The Rule

thus explicitly renders automatic the turnover of exculpatory evidence

mandated by the United States Supreme Court’s holding in Brady v.

Maryland.4

4
373 U.S. 83, 87 (1963) (holding that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution”).
12
 Significantly, the Rule further provides that post-indictment discovery

“shall also include, but is not limited to, [a list of] relevant material[s] .” R.

3:13-3(b)(1). “Relevance is measured in terms of the opportunity of the

defendant to present a complete defense.” Pressler & Verniero, Current N.J.

Court Rules, cmt. 3.2 on R. 3:13-3 (2020). “To qualify as ‘relevant material,’

the evidence must have ‘“a tendency in reason to prove or disprove [a] fact of

consequence to the determination of the action.”’” State v. Richardson, 452

N.J. Super. 124, 132 (App. Div. 2017) (alteration in original) (quoting State v.

Gilchrist, 381 N.J. Super. 138, 146 (App. Div. 2005)). The kinds of items

listed as discoverable include video and audio recordings, police reports, and

lab reports. See R. 3:13-3(b)(1)(A), (C), (E), and (H).

Further, a court’s “power to order discovery is not limited to the express

terms of the automatic discovery provisions of Rule 3:13-3(b).” Richardson,

452 N.J. Super. at 132. Indeed, “courts have ‘the inherent power to order

discovery when justice so requires.’” Ibid. (quoting State ex rel. A.B., 219

N.J. 542, 555 (2014)).

“While discovery in criminal cases is broad,” however, “it is not

unlimited.” Hernandez, 225 N.J. at 463. The discovery process is not “a

fishing expedition.” State v. Broom-Smith, 406 N.J. Super. 228, 239 (App.

Div. 2009), aff’d, 201 N.J. 229 (2010). It is not “an unfocused, haphazard

13
search for evidence.” State v. D.R.H., 127 N.J. 249, 256 (1992). And one

“significant limitation on defendants’ discovery rights is the chilling and

inhibiting effect that discovery can have on material witnesses who are

subjected to intimidation, harassment, or embarrassment.” Ibid.

As an example, New Jersey “recognize[s] that informants play ‘an

indispensable role in police work’ and that, in consequence, the privilege

against disclosing the identity of the informant ‘has long been considered

essential to effective enforcement of the criminal code.’” State v. Williams,

356 N.J. Super. 599, 603 (App. Div. 2003) (quoting State v. Milligan, 71 N.J.

373, 381 (1976)). New Jersey law therefore protects the identity of

confidential informants from disclosure in criminal proceedings by allowing a

witness “to refuse to disclose the identity of a person who has furnished

information purporting to disclose a violation of a provision of the law[] . . . to

a representative of the State or the United States.” N.J.S.A. 2A:84A-28;

N.J.R.E. 516.

Here, defendant’s discovery request, which pertains to a transaction with

the CI, implicates those concerns as well as our recognition of the fundamental

importance of broad discovery to the fairness of criminal proceedings. But the

ultimate focus of defendant’s request -- his desire to challenge an alleged drug

transaction that served as the basis for a search warrant but was not itself the

14
subject of any criminal charge -- raises additional considerations. Under

federal and state case law, defendants seeking to challenge the basis of a

search warrant must make an evidentiary showing before a hearing will be

granted. We now turn to that case law, beginning with the United States

Supreme Court’s decision in Franks v. Delaware.

B.

In Franks, officers took the defendant into custody for the assault of a

fifteen-year-old girl. 438 U.S. at 156. At the same time, officers were

investigating the sexual assault at knifepoint of another woman, Cynthia

Bailey, who provided a detailed description of her assailant, including the

clothes he wore. Ibid. Officers prepared an affidavit purportedly supporting

probable cause to search the defendant’s residence. Id. at 157. The affidavit

asserted that information provided by personnel at defendant’s workplace

confirmed his “normal dress” to be consistent with the clothing worn by Ms.

Bailey’s attacker. Ibid. A search warrant was issued, and a search of the

defendant’s residence revealed the described clothing and a knife. Ibid.

Before trial, the defendant’s counsel filed a motion to suppress the

clothing and knife seized, claiming that “the warrant on its face did not show

probable cause and that the search and seizure were in violation of the Fourth

and Fourteenth Amendments.” Id. at 157-58. At the hearing on the motion to

15
suppress, defense counsel attacked the veracity of the warrant affidavits,

claiming the purported sources of information in the affidavits never spoke to

the affiants “and that, although they might have talked to another police

officer, any information given by them to that officer was ‘somewhat different’

from what was recited in the affidavit.” Id. at 158. Defense counsel offered to

produce the supposed sources of the affidavits’ information at the hearing on

the motion to suppress. Ibid. The State of Delaware objected, asserting “that

the court must decide petitioner’s motion ‘on the four corners’ of the

affidavit.” Id. at 160. The trial judge agreed and admitted the evidence at the

defendant’s trial for both assaults. Ibid. The jury convicted the defendant, and

the Delaware Supreme Court affirmed. Ibid.

The United States Supreme Court granted the defendant’s petition for

certiorari to consider “whether the trial court had erred in refusing to consider

his allegation of misrepresentation in the warrant affidavit.” Id. at 161. The

Court reversed the defendant’s conviction, holding that

where the defendant makes a substantial preliminary
showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth,
was included by the affiant in the warrant affidavit, and
if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant’s
request.

[Id. at 155-56.]
16
 Thus, according to the holding in Franks, a defendant who requests a

hearing to challenge a search warrant affidavit must first establish by a

preponderance of the evidence that the allegedly false statement in the

affidavit was made either deliberately or in reckless disregard of the truth.

Ibid. 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.” Id.

at 156.

While Franks was pending before the United States Supreme Court, this

Court granted the defendant’s petition in State v. Howery, 80 N.J. 563, 566

(1979). In that case, the defendant, Richard Howery, challenged a search

warrant affidavit based on information supplied by a cooperating witness and

evidence lawfully seized from a second cooperator’s residence. Id. at 572.

The defendant pointed out two errors in the affidavit: (1) a reference to two

“bundles” of heroin in a note signed by “Richie,” when the note was actually

signed by “Rich” and did not mention “bundles,” which is a term used to

“specify a quantity of heroin”; and (2) a statement attributed to a cooperator

that the defendant stored heroin at his house when, in fact, the cooperator told

the detective that it was stored by Jimmy Howery, the defendant’s brother. Id.
17
at 573-74. Relying on Franks, we affirmed the defendant’s conviction for

heroin possession and distribution, concluding that both errors were mistakes

rather than “the type of bad-faith, perjurious misconduct which would

necessitate excision of the challenged paragraph from the affidavit.” Id. at

575.

In affirming the defendant’s conviction, this Court recognized the

significant limitations and burdens Franks places upon defendants. Id. at 567.

In Howery, we adopted and repeated the principles of Franks, stating that a

“defendant must make a ‘substantial preliminary showing’ of falsity in the

warrant.” Ibid. (quoting Franks, 438 U.S. at 170). We reiterated that a

defendant must first allege that the false statements in the warrant were made

deliberately or in “‘reckless disregard for the truth,’” ibid. (quoting Franks,

438 U.S. at 170), and we explained that the defendant must “point[] out with

specificity the portions of the warrant that are claimed to be untrue ,” ibid. We

added that the defendant should support those allegations with “an offer of

proof including reliable statements by witnesses.” Ibid. We also noted that

the defendant’s allegations “must be proved by a preponderance of the

evidence” and that the false statements in the affidavit “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.

18
 The Appellate Division later relied upon Howery in deciding Broom-

Smith, 406 N.J. Super. at 241, which is cited by the State here. The defendant

in Broom-Smith challenged the municipal judge’s authority to issue a search

warrant that relied upon an affidavit attesting to uncharged sales of cocaine to

a confidential informant. Id. at 231-32, 234. The defendant sought discovery

regarding the investigation “leading up to the warrant application,” including

documents relating to chain of custody of the drugs seized, reports of

investigators, and “notes of communications with the confidential informant.”

Id. at 232. Counsel claimed in his motions for discovery and for a Franks

hearing that the discovery sought would explain why investigators applied to

the municipal judge for a search warrant and would support the defendant’s

challenge to the court’s jurisdiction to issue the warrant. Id. at 232, 235.

The trial court denied the defendant’s motions, concluding, in part, that

the defendant’s “broad demand” for discovery “was a veiled attempt to learn

the identity of the confidential informant.” Id. at 240. The defendant pled

guilty to first-degree possession with the intent to distribute cocaine and the

Appellate Division affirmed, stating that “a Franks hearing is not directed at

picking apart minor technical problems with a warrant application; it is aimed

at warrants obtained through intentional wrongdoing by law enforcement

agents.” Id. at 230-31, 240. The appellate court also concluded that

19
documents relating to chain of custody after the drugs seized tested positive

for cocaine were “irrelevant to the validity of the warrant.” Id. at 240.

Those cases reveal that while the standard imposed by Rule 3:13-3(b)(1)

is low -- the State must automatically turn over to defendants exculpatory or

otherwise relevant information -- a defendant’s burden under Franks and

Howery is high -- a defendant’s allegations of deliberately or recklessly false

material statements in the warrant affidavit must be pointed out with

specificity and supported by an offer of proof, “including reliable statements

by witnesses.” Howery, 80 N.J. at 567. We repeat that to earn a hearing under

the Franks/Howery standard, a defendant’s “attack must be more than

conclusory,” “supported by more than a mere desire to cross-examine,” and

“accompanied by an offer of proof.” Franks, 438 U.S. at 171.

C.

This Court has not previously considered the interplay of our 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,

but the Supreme Court of California confronted a similar issue in People v.

Luttenberger, 784 P.2d 633 (Cal. 1990).

In Luttenberger, the defendant was indicted for selling

methamphetamine after officers executed a search warrant for the defendant’s

20
home and found drugs, drug paraphernalia, money, and a loaded handgun. Id.

at 636. The affidavit of probable cause supporting the search warrant

application relied on information supplied by a purportedly reliable

confidential informant, but it did not describe the basis for the officer’s

assertion of the informant’s reliability. Ibid.

Pointing to that deficiency, the defendant sought to challenge the

warrant. See ibid. Like defendant here, the defendant in Luttenberger “did not

contend the affidavit was facially insufficient to establish probable cause for

issuing a search warrant. Instead, he sought information to support a . . .

challenge [to] the veracity of statements made in the affidavit.” Ibid. To

mount his challenge to “the accuracy of [those] statements,” id. at 635, the

defendant sought the court’s “in-camera review of any information disclosed

or discoverable . . . as to the informant’s past experiences with dangerous

drugs, any police reports of incidents [filed] against [informant],” any

vouchers reflecting pay “for [informant’s] services to the police department,

[and] any [promises or] representations . . . that were made to” the informant,

id. at 636 (alterations in original).

The magistrate who heard the defendant’s motion denied his request, but

the superior court reversed and dismissed the charges against the defendant for

21
failure to provide the discovery requested. Id. at 636-37. The intermediate

appellate court affirmed the order of dismissal. Id. at 636.

The California Supreme Court, in turn, reversed the judgment of the

appellate court, vacated the order of dismissal, and remanded for further

proceedings. Id. at 648. In so doing, the court reviewed both state and federal

case law and “adopt[ed] a preliminary showing standard, which a defendant

must satisfy to obtain in camera examination and discovery of information

regarding police informants.” Id. at 636.

The Luttenberger court reviewed Franks and ultimately found a key

distinction between that case and the one before it:

The search warrant affidavit at issue in Franks
differed from that in the present case in a crucial
respect: it relied not on information from a confidential
informant, but on statements attributed to two named
sources, whom the defendant had been able to contact.
. . . [T]he high court did not need to, and did not, reach
the proper procedure or preliminary showing required
in cases involving confidential informants. The court
expressly reserved “the difficult question whether a
reviewing court must ever require the revelation of the
identity of an informant once a substantial preliminary
showing of falsity has been made.” It noted only that
due process “did not require the State to expose an
informant’s identity routinely, upon a defendant’s mere
demand, when there was ample evidence in the
probable-cause hearing to show that the informant was
reliable and his information credible.” The court also
pointed out that it was permitting impeachment of only
the affiant, not of any nongovernmental informant.

22
 [Id. at 638-39 (quoting Franks, 483 U.S. at 170).]

While stressing the distinct concerns raised when discovery is sought in

connection with information purportedly provided by an informant, the

Luttenberger court noted that “Franks did not restrict, either explicitly or

implicitly, a defendant’s right to discovery prior to the evidentiary veracity

hearing.” Id. at 643. The Luttenberger court further stated, “[w]e do not

believe that by its formulation of the preliminary showing, the Franks court

intended effectively to bar challenges to warrant affidavits based on

confidential informants’ tips.” Ibid. The California court thus declined to

“require[] a defendant to meet the Franks preliminary showing standard before

obtaining limited discovery relevant to the truthfulness of the warrant

affidavit” -- a requirement the court stressed that even “Franks itself” did not

impose. Id. at 644.

Ultimately, the Luttenberger court “adopt[ed] a preliminary showing

requirement . . . that is somewhat less demanding than the ‘substantial showing

of material falsity’ required by Franks, 438 U.S. 154,” “for purposes of

discovery motions” challenging warrant affidavits “based on statements of an

unidentified informant.” Id. at 646. Specifically, the court held that, “[t]o

justify in camera review and discovery, preliminary to a subfacial challenge to

a search warrant, a defendant must offer evidence casting some reasonable

23
doubt on the veracity of material statements made by the affiant.” Ibid. The

court indicated that, like requests for a Franks hearing, such discovery requests

“should include affidavits supporting defendant’s assertions of misstatements

or omissions in the warrant affidavit. Further, a defendant should, if possible,

specify the information he seeks, the basis for his belief the information exists,

and the purpose for which he seeks it.” Ibid.

Applying those requirements separately to discovery requests and

motions for hearings, the Luttenberger court explained that,

[f]or purposes of obtaining discovery, a defendant need
not show that the alleged inaccuracies of the affidavit
resulted from the affiant’s bad faith. . . . [C]asting a
reasonable doubt on the truthfulness of statements
made in the affidavit will suffice, regardless of the
defendant’s ability to show bad faith or trace the
inaccuracy directly to misrepresentations by the affiant.

To obtain an in camera hearing, however, the
defendant must raise a substantial possibility that the
allegedly untrue statements were material to the
probable cause determination. . . . After its in camera
examination of the materials requested by the
defendant, the court may then order production of only
those documents that are relevant to the material
inaccuracies asserted by the defendant.

Materiality will depend in part on how vital the
information attributed to the unnamed sources is to a
showing of probable cause.

[Id. at 647.]

24
The Luttenberger court then described what steps a trial court should take after

a preliminary showing has been made. See id. at 648. If the documents the

defendant seeks, when viewed in camera, “do not support defendant’s charges

of misrepresentation, the court should report only this conclusion to the

defendant, and should not order production of any of the reviewed materials.”

Ibid. Conversely, if the trial court finds that the “documents contain

information that tends to contradict material representations made in the

affidavit, or constitute material omissions from it, then it should order

disclosure of the documents to defendant,” subject to redaction. Ibid.

The court thus provided guidance about when, and, after redactions,

what materials should be disclosed to defendants, to “assure the defendant of a

judicial check on possible police misrepresentations, while preventing both

unfounded fishing expeditions and inadvertent revelations of the identity of

confidential police informants.” See ibid.

The Luttenberger court then applied its new test to the record before it

and concluded that “the trial court did not abuse its discretion in denying [the]

defendant’s motion for in camera review and discovery” because that “motion

was based entirely on conclusory assertions, unsupported by affidavits, and

[the defendant] failed to raise any doubt regarding the truthfulness of the

warrant affidavit.” Ibid.

25
 IV.

We find persuasive the Luttenberger court’s detailed and nuanced

balancing of the disparate considerations raised in that case, which are

mirrored in the case before us. As that court found, broad discovery rules must

at times yield before countervailing considerations like the recognized need to

protect confidential informants when a challenge is posed to a presumptively

truthful warrant affidavit that relies on assertions about uncharged conduct. At

the same time, the exacting standard set forth in Franks does not factor in the

difficulties faced by a defendant who seeks to challenge an allegation by a

confidential informant and the concerns of fairness raised by those difficulties;

nor does it consider discovery requests in their own right, as distinct from

hearing requests.

The California Supreme Court’s standard in Luttenberger generally

serves New Jersey’s interests in cases such as this by protecting both the

identity of confidential informants and a defendant’s right to discovery. In

applying that standard, we will require a defendant to describe with reasonable

particularity the information sought in discovery, sustained by a plausible

justification “casting a reasonable doubt on the truthfulness of statements made

in the affidavit.” Id. at 647. The discovery request should be buttressed by

support for defendant’s assertions of misstatements or omissions in the warrant

26
affidavit that are material to the determination of probable cause, the basis for

believing that the information exists, and the purpose for which the

information is sought.

Application of this standard and the determination of whether it has been

met in an individual case rest in the sound discretion of the trial ju dge, see

Hernandez, 225 N.J. at 461, who will review the appropriately redacted

discovery in camera. Only after such in camera review will the trial judge

determine whether the discovery sought contradicts material facts set forth in

the search warrant affidavit, should therefore be disclosed, and to what

limitations or redactions the discovery might be subject. We find that such a

standard strikes a fair balance.

“[O]ur system of the administration of justice suffers when any accused

is treated unfairly.” Brady, 373 U.S. at 87. And at their core, our “rules of

discovery . . . are designed to accomplish fairness.” State v. Bellamy, 329 N.J.

Super. 371, 376 (App. Div. 2000) (quoting State v. Kearney, 109 N.J. Super.

502, 505 (Law Div. 1970)). “Indeed, ‘[t]he principal purpose of our discovery

rules is to assure the parties every legitimate avenue of inquiry prior to trial to

enhance the search for the truth.’” Ibid. (alteration in original) (quoting State

v. Burnett, 198 N.J. Super. 53, 58 (App. Div. 1984)). It is the notion of

27
fairness in our system of criminal justice as expressed in Brady and our

discovery rules that we import here.

V.

A.

We now apply that standard to defendants’ discovery requests and

motion for a Franks hearing. We begin with a brief review of defendant’s

requested discovery and the showing he has made in support of his requests.

Defendant claims that he did not sell Molly from his home, contrary to

the allegations in the search warrant affidavit. Because those allegations form

the entire basis of the search warrant that led to the charges against him, he

argues, any evidence seized as a result of that warrant must be suppressed.

Defendant has not supported his assertion 5 with affidavits or statements

of witnesses. Rather, he points to the search warrant affidavit’s failure to

mention “buy money” -- money provided to the CI to fund the CI’s alleged

controlled drug purchase from defendant. Defendant sought discovery

pertaining to the uncharged sale of Molly to the CI to seek proof of his

contentions. Specifically, defendant requested the lab report mentioned in the

warrant affidavit, as well as any additional police reports and audio and video

5
For purpose of this appeal, we treat the representations of defendant’s
counsel as defendant’s certification or affidavit.

28
recordings of interactions with the CI. Defendant claims that without the

discovery requested, it would be impossible for him to disprove the State’s

claim that the CI exited defendant’s home and gave the detective Molly he had

obtained from defendant.

B.

To determine whether defendant is entitled to discovery of the requested

materials, we first consider Rule 3:13-3(b)(1), which requires the automatic

disclosure of evidence that is exculpatory or otherwise relevant.

If the materials were directly relevant to the charges that defendant faced

-- if they had “a tendency in reason to prove or disprove a fact of consequence

to the determination of the action,” Richardson, 452 N.J. Super. at 132

(quotation and alteration omitted) -- they would have been subject to automatic

disclosure under Rule 3:13-3(b)(1). Here, however, the materials do not

pertain to the “determination” of the charges against defendant, but rather to

uncharged conduct; they are therefore not “relevant” within the meaning of

Rule 3:13-3(b)(1). Similarly, the materials requested are not exculpatory

-- defendant has not been charged for the underlying narcotics sale to the CI,

and any evidence disproving the sale would not be material to the drugs and

29
weapons offenses he faces under the indictment. As a result, the materials

were not subject to automatic disclosure under Rule 3:13-3(b)(1).

The question thus presents whether, to ensure the fairness of judicial

proceedings, see Bellamy, 329 N.J. Super. at 376, materials identified with

reasonable particularity that fall beyond the scope of Rule 3:13-3(b)(1), but

may call into question the validity of a search warrant affidavit, are

discoverable to defendants who have shown a plausible justification for

requesting the materials, see Richardson, 452 N.J. Super. at 132. In order for

that standard -- which is higher than that imposed by Rule 3:13-3(b)(1) but

lower than that required for a Franks hearing -- to successfully balance the

competing considerations, it must be applied strictly.

Here, for example, the charges defendant faces all arise out of what was

found during the execution of the search warrant. Thus, to the extent that

discovery sought would substantiate defendant’s claim that the sale of Molly

to the CI never happened, it has the potential to void the search warrant and

result in suppression of the contraband upon which the indictment is based. If

that sale never occurred, “the affidavit’s remaining content is insufficient to

establish probable cause, [and] 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, 438 U.S. at 156. But vague

30
claims of conceivable or potential support for defendant’s argument are not

enough. To prevent a fishing expedition and to respect the presumption of

validity that attaches to a warrant affidavit, the materials identified with

reasonable specificity must be plausibly connected to invalidating the warrant

affidavit.

Applying that standard here, we find that only defendant’s request for

the lab report meets that two-part test. First, the report was identified within

the warrant affidavit itself as a unique, concrete document. Indeed, the lab

report was the evidentiary pillar on which the warrant affidavit was built. The

affidavit states that the “suspected ‘Molly’ obtained from [defendant] was

submitted to the Union County Prosecutor’s Office Laboratory where it was

analyzed and tested positive for [Molly,] a Schedule I controlled dangerous

substance.” If that statement is supported by the lab report, it would disprove

defendant’s claims.

But if the lab report does not exist or contradicts the affidavit in a

material way, defendant may be entitled to a Franks hearing. This is not like

Broom-Smith, 406 N.J. Super. at 240, where a field test confirmed the

challenged sale of cocaine to a confidential informant. Here, the validity of

the warrant affidavit hinges on the contents of the lab report. Further, while

we consider the affidavit’s failure to mention “buy money” likely a clerical

31
mistake, and not “the type of bad-faith, perjurious misconduct which would

necessitate excision of the challenged paragraph from the affidavit,” Howery,

80 N.J. at 575, the omission lends some support to defendant’s claim that the

CI did not purchase Molly from him.

Accordingly, with respect to the lab report, defendant meets the

preliminary standard we have set forth above. First, he has clearly met the

standard of reasonable specificity as to the report, which was described in the

affidavit. He has also barely met the standard of plausible justification, given

the importance of the lab report to the warrant affidavit, the dependence of the

charges on the execution of that warrant, and the affiant’s omission of any

mention of “buy money” in the affidavit. Of course, but for that omission,

defendant would not meet the standard of plausible justification.

The contents of the lab report may strike at the heart of defendant’s

indictment and his prosecution. Fairness in our system of criminal justice

therefore obliges in camera review of the properly redacted report, which will

protect the CI’s identity. 6 The determination of what happens next -- whether

6
We stress that, even though defendant has made the requisite showing as to
the lab report, he is not guaranteed access to that information. Rather, the
court will have to review the report in camera and consider whether it
contradicts representations in the affidavit and, if so, whether it is amenable to
necessary redaction, or whether it would pose too great a risk of jeopardizing

32
a Franks hearing should be granted -- would depend on what the report

reveals7 and lies in the discretion of the trial court. 8

We have a different view with respect to the other materials defendant

sought to discover. The Appellate Division allowed discovery of “copies of

any police reports prepared in connection with the case . . . and any video and

sound recordings,” including recordings of conversations between the police

and the CI. Desir, 461 N.J. Super. at 193 (emphases added). Those broadly

categorized materials would not be amenable to necessary redactions and have

the informant’s identity. We reiterate that the ultimate discovery decision
resides in the discretion of the trial court.
7
This Court received a letter from the State verifying that the lab report
revealed that the substance did test positive as Molly. The lab report’s
contents affect the relief to which defendant is entitled but do not affect the
analysis of the discoverability of the lab report. The analysis we provide by
way of guidance above shows how trial courts should assess similar discovery
requests in the future.
8
The timeline we sketch out here casts light on the inappropriateness of the
timing of the consideration of defendant’s motions in this case. Defendant’s
motions to compel discovery and to suppress evidence should have been heard,
if not at the same time, then as close in time as possible -- and definitely not
six months apart. Defendant contributed to that problem by filing his motion
to compel discovery five months after filing his motion to suppress. The better
practice is to make both requests at the same time.

Furthermore, it was inappropriate for the trial court to rely on the denial
of the motion to suppress in denying the motion to compel discovery. As we
have stated, while a defendant’s burden under Franks and Howery is high, the
required showing for discovery purposes is different and, necessarily, lower.
33
not been identified with reasonable specificity. Nor is the request for those

materials backed by a plausible justification. All we have as to them in this

case is defendant’s blanket denial, which we do not consider sufficient. 9 Also,

to the extent the materials exist, they might have no impact on the affidavit.

Therefore, as to those materials, the record before the trial court and on appeal

before us does not satisfy the preliminary showing required to warrant an in

camera review.

We underscore our adherence to the Franks/Howery framework and

reemphasize the importance of preserving the confidentiality of informants. In

a case like this, even a laboratory report could place the CI at risk because of

information such as dates on the report, packaging of the substance tested, or

9
We do not embrace the eighteen-year-old California intermediate appellate
court decision, People v. Estrada, 129 Cal. Rptr. 2d 589 (Ct. App. 2003), the
dissent cites. In that case, the defendant sought discovery regarding whether
“the confidential informant(s) . . . made the controlled buy described in the
affidavit in support of the search warrant.” Id. at 592. The defendant offered
only the search warrant affidavit and his own affidavit in support of his
motion, which consisted of a blanket denial of culpability. Id. at 593, 598. In
any event, the court did not compel in camera disclosure of the discovery
sought, but remanded, finding the trial court “should have exercised discretion
utilizing the Luttenberger . . . standard” and noting that, “[d]efendant’s motion
requested that the informant’s identity be revealed but did not otherwise
explain how that was to happen. If [the] defendant is unable to identify with
greater specificity what he desires the trial court to do, it remains free to deny
the motion.” Id. at 599.
34
other seemingly innocuous details. Redaction and protection against

disclosure of identifying details are required.

In reaching our decision, we acknowledge the error of the trial court in

hearing defendant’s motion to compel discovery six months after hearing his

motion to suppress evidence. We urge counsel to file these motions together

and courts to schedule these motions close in time. We rely on our trial courts

to hold defendants to the proofs required by the preliminary standard we adopt

today and, when defendants make that requisite showing, to exercise their

discretion, after an in camera review, in determining whether, and in what

manner, discovery should be allowed in order to balance the important

concerns of fairness and protection of confidential informants.

VI.

For the reasons set forth above, we affirm and modify the judgment of

the Appellate Division by limiting defendant’s discovery only to the redacted

lab report. We remand to the trial court for consideration under the standard

adopted herein.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON and
FERNANDEZ-VINA join in JUSTICE SOLOMON’s opinion. JUSTICE
ALBIN filed a dissent, in which JUSTICES LaVECCHIA and PIERRE-LOUIS
join.

35
 State of New Jersey,

Plaintiff-Appellant,

v.

Herby V. Desir, a/k/a
Johnathan Desir,

Defendant-Respondent.

JUSTICE ALBIN, dissenting.

In this case, an affidavit in support of a search warrant, relying in part on

the veracity of a confidential informant (CI), averred that the CI purchased a

controlled dangerous substance, commonly known as Molly, from defendant in

defendant’s residence. Defendant claims that he never sold Molly from his

home and that the averments in the affidavit asserting otherwise were

knowingly or recklessly made false statements. Defendant sought a Franks

hearing1 to challenge the validity of the search warrant and the evidence seized

from his home pursuant to the warrant. The issue is what discovery, if any, is

defendant entitled to as part of his request for a Franks hearing. It bears

1
Franks v. Delaware, 438 U.S. 154 (1978).

1
mentioning that defendant does not object to the redaction of reports and does

not seek disclosure of the CI’s identity.

I agree with the majority that defendant is entitled to discovery as set

forth in People v. Luttenberger, 784 P.2d 633 (Cal. 1990). I dissent because

the majority opinion, although adopting the Luttenberger standard in name,

violates the essential tenets of that standard as applied by California courts and

does so in a way that will render a discovery request illusory.

Having established a new discovery standard, the majority does not take

the simple step of remanding to the trial court to permit defendant to satisfy

that standard. Instead, the majority misapplies the Luttenberger standard when

it announces that a defendant’s sworn statement contradicting averments in a

search warrant affidavit will not be sufficient to cast “reasonable doubt” on the

veracity of a warrant affidavit and therefore to entitle him to an in camera

hearing. That pronouncement evidently presupposes that the averments in a

police officer’s affidavit will always be truthful and that the averments in a

defendant’s affidavit will always be false -- a notion soundly rejected by

California courts and other courts.

Unlike the Luttenberger court, the majority also requires the defendant

to have telepathic powers -- to always be able to identify the specific items of

discovery withheld from him. Notwithstanding the majority’s particularity

2
requirement, the majority does not find sufficient specificity in defendant’s

discovery request that -- subject to redaction -- the prosecution provide “proof

of buy money,” audio recordings or transcripts of call intercepts, and relevant

police reports. Crafting an illusory particularity requirement that defendants

cannot reasonably meet will undoubtedly throttle meritorious claims for

discovery.

I would remand to the trial court for application of the Luttenberger

standard as it is. Following the Luttenberger standard, I would allow the trial

court, in an in camera hearing, to determine what, if any, relevant discovery

should be made available to defendant -- without the advance restrictions the

majority has set in place, which limit defendant to only a redacted laboratory

report. Luttenberger does not restrict the scope of relevant discovery that the

trial court may review in camera.

I would require as a prerequisite to defendant’s discovery request that he

support his claim by sworn statements in an affidavit or certification. If

defendant is willing to make averments under oath, subjecting himself to the

criminal sanction of perjury, then the trial court should conduct an in camera

review to determine the validity of the discovery request, keeping in mind the

importance of safeguarding the CI’s identity. I am not averse to allowing the

3
State to redact portions of the discovery that might reveal the identity of the

CI, even before submission to the court.

Because the majority does not follow the standard that it purportedly

adopts, I respectfully dissent.

I.

In this case, defendant has moved to suppress drugs and a weapon seized

from his home pursuant to a search warrant. That warrant was secured by a

detective who filed an affidavit averring, among other things, that a CI had

purchased Molly from defendant in defendant’s home. Defendant has denied

that this uncharged drug transaction occurred. At defendant’s trial, the State

does not intend to present evidence of the CI’s drug transaction with defendant

-- the transaction that formed the probable cause for the issuance of the

warrant.

The majority holds that defendant’s challenge to the veracity of the

warrant affidavit in this scenario does not trigger open discovery under Rule

3:13-3(b) and instead adopts the more restrictive standard in Luttenberger. I

agree with that approach. But that is where my agreement ends because the

majority fails to follow Luttenberger.

In Luttenberger, the California Supreme Court held that “[t]o justify in

camera review and discovery, preliminary to a subfacial challenge to a search

4
warrant, a defendant must offer evidence casting some reasonable doubt on the

veracity of material statements made by the affiant.” 784 P.2d at 646. In

particular, “the defendant must raise some reasonable doubt regarding either

the existence of the informant or the truthfulness of the affiant’s report” before

a court orders in camera review. Ibid. To meet his burden, the defendant

“should include affidavits supporting [his] assertions of misstatements or

omissions in the warrant affidavit” and “if possible, specify the information he

seeks, the basis for his belief the information exists, and the purpose for which

he seeks it.” Ibid. (emphasis added). The defendant may satisfy the required

showing by “mak[ing] factual allegations contradicting statements in the

warrant affidavit, or rais[ing] inconsistencies on the face of the affidavit,”

though the “defendant need not show that the alleged inaccuracies of the

affidavit resulted from the affiant’s bad faith.” Id. at 647.

In the wake of Luttenberger, the California Court of Appeals held that a

defendant’s sworn declaration denying the warrant affidavit’s assertion that a

controlled drug buy occurred is sufficient to “‘cast[] some reasonable doubt on

the veracity of material statements’ appearing in the search warrant affidavit.”

People v. Estrada, 129 Cal. Rptr. 2d 589, 597 (Ct. App. 2003) (quoting

Luttenberger, 784 P.2d at 646). In Estrada, the defendant was charged with

drug and weapons offenses arising out of the execution of a search warrant.

5
Id. at 591-92. The police had secured the warrant based on an affidavit that

alleged that the police witnessed a CI “make a controlled purchase of cocaine

from [the defendant].” Id. at 593. The defendant moved to suppress the seized

evidence, requested discovery and an in camera hearing pursuant to

Luttenberger, and requested a Franks hearing to challenge the validity of the

warrant. Id. at 592-94.

The Estrada court held that the trial court abused its discretion in

denying defendant’s request for an in camera hearing on discovery in light of

his sworn declaration that he “did not meet and sell or provide cocaine or

cocaine base to an individual at a location or to any person at any location

during the time period mentioned in [the investigating detective’s] affidavit.”

Id. at 593, 596-97. The court reasoned that the defendant’s sworn denial met

the Luttenberger test because it “contradict[ed] the affiant’s allegations” by

“indicat[ing] that the informant, the affiant, and, by inference, the other

detectives had fabricated the entire drug transaction scenario which served as

the sole basis for the Fourth Amendment justification for the search.” Id. at

597. In short, defendant’s averment cast in doubt “the entire justification for

the search.” Id. at 598.

In responding to the concern expressed “that accused drug traffickers

will fabricate declarations in order to force the holding of in camera hearings ,”

6
the Estrada court indicated that “[t]here is no empirical data that, in other

jurisdictions where the Luttenberger rule has been adopted, including here in

California, accused drug traffickers have routinely filed false blanket denials

of culpability.” Ibid. The court further reasoned that significant disincentives

exist to deter defendants from abusing the process. Id. at 598-99. The court

noted that a defendant would subject himself to a perjury prosecution by

making false declarations or giving false testimony and that such sworn false

statements, if the defendant were convicted, might be taken into account at

sentencing. Ibid.

Other jurisdictions likewise have concluded that a defendant’s sworn

declarations may be credited at the pre-Franks stage. See, e.g.,

Commonwealth v. Douzanis, 425 N.E.2d 326, 331 (Mass. 1981) (“[A] judge

would not abuse his discretion in deciding to hold . . . a Franks-type hearing

where, as here, a defendant under oath on the basis of personal knowledge

challenges the truth of material statements attributed to the informant, and he

also asserts . . . that there could have been no informant at all.”); State v.

Casal, 699 P.2d 1234, 1239 (Wash. 1985) (“A more reasonable rule requires

the trial court to exercise its discretion to order an in camera hearing where the

defendant’s affidavit casts a reasonable doubt on the veracity of material

7
representations made by the affiant. Corroboration of the defendant’s story is

helpful, but not necessary.”).

II.

A.

In the case before us, the majority stated that it would “treat the

representations of defendant’s counsel as defendant’s certification or

affidavit,” ante at ___ n.5 (slip op. at 29 n.5), and then concluded that

defendant’s assertion that he never sold Molly in his home -- an assertion that

directly contradicted the averments in the warrant affidavit, ante at ___ (slip

op. at 28) -- “would not meet the standard of plausible justification” necessary

for discovery, ante at ___ (slip op. at 32). That dismissive attitude toward a

defendant’s averments, one that blindly accepts the truthfulness of the

purported CI and police officer affiant, is squarely at odds with Luttenberger

and its progeny.

The majority hinges the right to pre-Franks discovery not on defendant’s

averment that the sale of Molly to the CI never occurred in his home as

represented in the warrant affidavit, but rather on the affidavit’s failure to

mention that the investigating detective gave the CI “buy money,” a failure

that the majority characterizes as “likely a clerical mistake.” Ante at ___ (slip

op. at 32). In the majority’s view, even defendant’s sworn averment that the

8
sale of Molly to the CI never happened would not entitle him to an in camera

review of the laboratory report -- “the evidentiary pillar on which the warrant

affidavit was built.” See ante at ___ (slip op. at 31). By preemptively

excluding potentially relevant information from the scope of discovery, the

majority not only departs from the Luttenberger standard, but also evidently

expresses a lack of confidence in the remand court to conduct a proper in

camera review.

In a finding seemingly inconsistent with Luttenberger, the majority

denies potential access to discovery, determining that defendant’s request for

relevant police reports and call recordings are not “identified with reasonable

specificity.” Ante at ___ (slip op. at 34). Moreover, without having reviewed

the reports or recordings (if they exist), the majority speculates that those

“materials would not be amenable to necessary redactions.” Ante at ___ (slip

op. at 34). The majority does not provide any good explanation for granting in

camera review of the laboratory report but not the police reports identified by

defendant -- reports that might contradict (or support) the detective’s claim in

the warrant affidavit that he observed the CI enter defendant’s residence.

Indeed, Luttenberger itself contemplated that a trial court, under proper

circumstances, would conduct an “in camera examination of the police records

specified by the defendant.” 784 P.2d at 648 (emphasis added).

9
 B.

Over forty years ago, the United States Supreme Court in Franks

recognized that the warrant requirement “would be reduced to a nullity if a

police officer was able to use deliberately falsified allegations to demonstrate

probable cause, and, having misled the magistrate, then was able to remain

confident that the ploy was worthwhile.” 438 U.S. at 168; accord

Commonwealth v. Ramirez, 617 N.E.2d 983, 990 (Mass. 1993) (“[T]he public

interest in deterring police misconduct requires the trial judge to exercise his

or her discretion to order an in camera hearing where the defendant by

affidavit asserts facts which cast a reasonable doubt on the veracity of material

representations made by the affiant concerning a confidential informant.”

(quoting Commonwealth v. Amral, 554 N.E.2d 1189, 1196 (Mass. 1990))).

That warning remains true today. As Franks indicates, we are not

helpless to deter police misconduct at the warrant stage.

In addressing the issue before us, we should not embrace sweeping

generalities about the truthfulness of police officers or defendants. I have no

doubt that most police officers are honest. But the reality is that not all police

officers tell the truth and not all criminal defendants lie.2 Courts have a role to

2
Both courts and journalists have chronicled instances, however infrequent,
where police officers have fabricated the existence of a CI to support a search

10
play in ensuring the integrity of the criminal justice process. That role

requires that courts exercise oversight of the warrant process and have in place

reasonable measures to expose judicially issued warrants that are procured

through false affidavits. 3 Such oversight is not inconsistent with the need to

protect from disclosure the identity of a CI. However, search warrants issued

based on knowing lies or recklessly made false statements are an affront and a

threat to our judicial system. Restrictions on a trial court’s authority to review

in camera relevant discovery, when the validity of a search warrant is properly

challenged, will not promote confidence in the warrant process or our system

of justice.

warrant. See, e.g., Commonwealth v. Lewin, 542 N.E.2d 275, 278, 284-85
(Mass. 1989) (holding that a finding that a CI existed was “clearly erroneous”
based on the sworn repudiation of the CI’s existence by three officers and an
investigation that revealed thirty-one applications for search warrants by the
same officer within a ten-month period relying on the same fictitious CI); St.
John Barned-Smith et al., HPD Chief Acevedo Says Narcotics Cop Committed
Likely Crime by Lying in Affidavit for Deadly Raid, Houston Chron. (Feb. 15,
2019), https://www.chron.com/news/houston-texas/article/Houston-police-
shooting-affidavit-confidential-13620120.php; Jenny Jarvie, Officer Convicted
in Coverup, L.A. Times (May 21, 2008), https://www.latimes.com/archives/la-
xpm-2008-may-21-na-atlanta21-story.html.
3
Notably, the representative of the County Prosecutors Association of New
Jersey, at oral argument before this Court, stated that even if the warrant
affidavit averred that the CI purchased Molly from defendant but the
corresponding laboratory report revealed that the substance was really flour,
the State would have no obligation to disclose that misrepresentation made to a
judge to defendant and presumably to a reviewing court.

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 III.

In our adversarial system, access to discovery -- discovery reasonably

related to a contested issue -- levels the playing field, allowing defendants the

ability to secure a fair trial. The majority now requires that defendants

identify documents with the type of hyper-technical precision that will defeat

almost any discovery request. The request for relevant police reports or

recordings will not meet the majority’s particularity requirement. That is not

the Luttenberger standard. Compare 784 P.2d at 646, with ante at ___ (slip op.

at 27). In contrast to Luttenberger, the majority has erected an almost

insurmountable bar to discovery in cases involving an affidavit based on

purported information from a CI or a purported drug sale to a CI. See

Luttenberger, 784 P.2d at 646-47 (“[I]n cases involving confidential

informants the defendant may be hindered in providing such specifics . . . .”);

People v. Lucente, 506 N.E.2d 1269, 1275 (Ill. 1987) (“If an informant’s

identity -- or very existence -- is unknown, a defendant obviously lacks the

very information necessary to determine the source of the false statements.”).

Defendant should be given the opportunity of presenting evidence to

meet the Luttenberger standard. I would remand and allow the trial court --

without preconditions -- to determine whether defendant has met the threshold

for an in camera review of discovery.

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 IV.

I also would make clear what should be obvious -- that a pre-Franks

discovery motion must always be resolved before a court considers whether a

defendant is entitled to a Franks hearing. In the case before us, one trial judge

denied his request for a Franks hearing and then later another judge decided

that his discovery request was moot. The absurdity of that scenario speaks for

itself.

V.

Because the majority opinion does not faithfully adhere to the

Luttenberger standard, I respectfully dissent.

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