State v. Smith

Justice ALBIN,

dissenting.

Today’s ruling affirms the admission of evidence procured in flagrant violation of the warrant requirement of the New Jersey Constitution. By not suppressing evidence unlawfully obtained by the police, the majority upholds this defendant’s conviction. But it does so by reducing the exclusionary rule to an empty form of words.

Here, to secure a warrant for one suspect’s telephone records, a detective presented a purposely deceptive affidavit, hiding material facts necessary for a Superior Court judge to make an informed finding of probable cause. During the course of the investigation, the police then acquired the telephone toll billing records of two other suspects (one of whom was defendant) without the warrant demanded by our State Constitution. All three sets of telephone records were then used illicitly to further the State’s investigation. At the conclusion of the investigation, to gain cover for the telephone records that were not secured by a warrant, the detective in charge filed for an after-the-fact warrant. The application *413for that warrant was based on material facts that the detective knew to be false.

The serial violations of our Constitution by law enforcement officials undermine respect for core values in our criminal justice system. One of those values is that the police must be truthful in warrant applications made to our courts. The majority’s refusal to suppress the telephone records in this case renders the exclusionary rule an illusory remedy for violations of the Constitution’s warrant requirement.

At stake here is not just the sanctity of individual rights promised under our State Constitution but also judicial integrity. One purpose of the exclusionary rule is to deter police misconduct by removing the incentive for violating constitutional rights in the most effective way possible — suppressing the ill-gotten gains. The other purpose is to uphold judicial integrity. There can be no justification for deceiving a judge into issuing a warrant for the seizure of evidence. Moreover, the admission of tainted evidence in our courtrooms will breed disrespect for our system of justice.

A conviction — even a murder conviction — should not stand when it is based on evidence acquired by law enforcement officers in violation of the Constitution they have sworn to uphold. Because the majority will not apply the exclusionary rule to the flagrant police misconduct in this case, I respectfully dissent.

I.

The facts presented here come from a Franks hearing.1 The primary purpose of the hearing was to determine whether the police made material misrepresentations and/or omissions in seeking communication data warrants from a Superior Court judge and, if so, whether the evidence gathered from those defective warrants needed to be suppressed. At the hearing, only one *414witness testified, Detective Patrick Holt of the Ewing Township Police Department.

A.

Robert Priester, a known drug dealer, was shot to death in his parked car outside a deli in Ewing Township on December 31, 2001. Detective Holt took charge of the murder investigation, and his prime suspect became Jerome Roberts, another drug dealer. Detective Holt learned that Priester and Roberts had been involved in a violent turf war over drug sales. However, Detective Holt had no one to implicate Roberts in Priester’s shooting until Larry Dickerson stepped forward. After his arrest for shoplifting, on January 4, 2002, Dickerson volunteered to Detective Holt that he had witnessed the shooting, although Dickerson disavowed knowing the identity of the shooter.

From the very beginning, Dickerson provided information to Detective Holt that the detective knew to be untrue. Dickerson averred with absolute certainty that, from his parked car across the street, he watched an unknown man garbed in black clothing fire several rounds through the front windshield of Priester’s vehicle, killing Priester. However, the forensic evidence clearly established that the shots were fired through the side window. Holt showed Dickerson a picture of the undamaged front windshield of Priester’s ear and told him, “I can’t be sitting in here listening to [you] lying about what took place.”

Dickerson then changed course, making a statement that coincided with the information that Detective Holt provided to him. Now Dickerson claimed that he saw an unknown black male shoot Priester through the car’s side window. Because Holt doubted Dickerson’s story about not knowing the identity of the shooter, Holt arranged for him to take a polygraph examination. The results of that examination indicated that Dickerson was untruthful in his denial about the shooter’s identity.

Presented with the polygraph results, Dickerson gave his third version, this time naming Roberts — Holt’s prime suspect — as the *415shooter. Dickerson claimed that he had known Roberts for ten years. Holt reduced this last version to writing. After spending twelve hours in police custody, Dickerson was released on a shoplifting summons.

On January 5, 2002, Roberts was arrested for Priester’s murder. Roberts maintained that he was in a barbershop when Priester was shot. Five witnesses interviewed by the police corroborated that account. Those witnesses also described Roberts as wearing clothes different from Dickerson’s description of the killer’s attire. A search of Roberts’s car uncovered a gun, but it was not the murder weapon. On January 7, 2002, Detective Holt received a phone call from a person identifying himself as “Stanley Smith” who indicated that Roberts was not the shooter..

B.

On January 14, 2002, Detective Holt prepared an affidavit in support of a communications data warrant for Roberts’s cellular phone records. According to Holt, he only included information in the affidavit that would persuade the judge to issue a warrant. He testified, “[M]y obligation is to put into the affidavit facts that tend to grant me ... the search warrant for the phone records.” With the distorted view that he could act as a censor, Holt withheld from the Superior Court judge reviewing the warrant application vital information about Dickerson’s veracity and Roberts’s alibi.

Detective Holt did not include in this affidavit that Dickerson’s first statement about the shooting was false and that Holt himself supplied Dickerson with the information that the shots were fired through the driver’s side window. Holt did not include that Dickerson gave a second statement in which he denied knowing the identity of the killer. Holt did not include that Dickerson failed a polygraph test or that he was under arrest for shoplifting when he was questioned. Holt did not include that five witnesses corroborated Roberts’s claim that he was at a barbershop at the time of the killing.

*416Holt kept the facts deceptively simple for the Superior Court judge. The affidavit stated that Dickerson saw Roberts walk towards Priester’s car; that Roberts pulled a black ski mask over his face; that Roberts drew a nickel-plated gun and fired four to five shots through the driver’s side window; “that [Dickerson] had a clear, unobstructed view of the shooting”; and “that [Dickerson] was one hundred percent sure [Roberts] was the shooter.” Holt harbored “concern” about the reliability of Dickerson’s final story, but he did not share any of his doubts — or any contradictory facts — with the Superior Court judge responsible for issuing the warrant.

Based on Detective Holt’s misleading and deceptive affidavit, a Superior Court judge issued a warrant for Roberts’s cellular phone records. On January 21, 2002, the police received Roberts’s cellular phone records, which revealed that he had made numerous calls to two telephone numbers on the day of Priester’s murder. For one telephone number — Andre Bellinger’s — the police faxed a request to the service provider for both subscriber information and the telephone toll billing records. The police did not attempt to obtain a warrant before securing Bellinger’s toll billing records, another clear violation of the warrant requirement. See State v. Hunt, 91 N.J. 338, 348, 450 A.2d 952 (1982).

For the other telephone number — defendant Stanley Smith’s— the police faxed a request to the service provider for just subscriber information, but received in return not only defendant’s subscriber information but also his telephone toll billing information. The police decided to capitalize on the provider’s error. The police neither returned the toll records to which they were not entitled nor sought a warrant to legitimize their use of those records. Despite lacking judicially issued warrants for the toll billing records of both defendant and Bellinger, the police illicitly used those records in furtherance of their investigation.

The telephone toll billing records — all obtained in violation of the warrant requirement — led the police to question defendant and then Bellinger. Detective Holt’s interview of defendant on *417February 11 did not elicit any incriminating admissions. However, Detective Holt made progress during his interrogations of Bellinger in February and March with the use of the illicit toll billing records. At first, Bellinger confessed to shooting Priester himself and incriminated Roberts and defendant in the crime. However, the police learned that Bellinger’s close friend, Khalif Johnson, had discarded a Smith and Wesson .357 handgun that ballistics tests eventually linked to Priester’s murder. Confronted with that evidence, Bellinger eventually implicated Johnson as the shooter. Detective Holt later questioned Johnson, who confessed to shooting Priester at the behest of Roberts and defendant.

On April 1, 2002, with the investigation nearly complete and all of the suspects charged with Priester’s murder, Detective Holt realized that he did not have judicial warrants to justify his possession of defendant and Bellinger’s telephone toll billing records. He conferred with a Mercer County assistant prosecutor, and they decided to apply for a new communications data warrant legitimizing their seizure of those records.

At this point, they knew that Johnson — not Roberts — was the shooter. They knew that Dickerson’s statement identifying Roberts as the shooter was a lie. They knew that Dickerson’s account recited in Holt’s earlier warrant affidavit was false. In his new affidavit, with the information now available, Detective Holt had the perfect opportunity to cleanse the record of the misrepresentations that he had passed along through his discredited informant, Dickerson. However, Holt did not lay bare the truth in his new affidavit in support of a communications data warrant. Instead, he averred again, under oath, to the same representations made in the first affidavit — representations he knew to be false. He presented Dickerson to be a truthful informant when he knew that Dickerson’s account was a tissue of lies. On that basis, Holt secured the second communications data warrant from a Superior Court judge who placed trust in the presumed good faith representations set forth in the affidavit.

*418Notably, Holt testified at the hearing that the entire ease against defendant, including “the identification of Bellinger as a possible witness or participant, and the identification of Khalif Johnson,” developed from the “obtaining of Roberts’s cell phone records.”

II.

A.

At the conclusion of the Franks hearing, the trial court ruled that Detective Holt demonstrated a reckless disregard for the truth by withholding vital information from the warrant judge— information that undermined the veracity of Dickerson and exculpated Roberts. Accordingly, the court struck from Holt’s initial affidavit those paragraphs that deceptively presented facts. After making those excisions, the court determined that there was insufficient evidence remaining in the affidavit to support the issuance of the communications data warrant. The court suppressed Roberts’s cell phone records and all evidence secured through the exploitation of those tainted records. The suppressed evidence included defendant and Bellinger’s cell phone records and Bellinger’s written statement.2 The murder weapon, which Johnson was observed discarding, was deemed “independent of any tainted evidence,” provided the State could establish that the State Police would have linked the weapon to the Priester killing through ordinary investigatory protocols. The admissibility of Johnson’s statement as independent, non-tainted evidence depended on the admissibility of the murder weapon. The court stated that it would allow two jailhouse informants to testify against defendant.

*419The Appellate Division granted leave to appeal and reversed the suppression order. The panel found that “there [was] ample evidence to support the trial judge’s conclusion that omissions from Detective Holt’s January affidavit constituted a reckless disregard for the truth.” However, the panel concluded that the police “would have obtained a valid warrant for Roberts’s toll billing records through normal investigatory procedures, independent of the improper warrant application.” On that basis, the panel held that all of the evidence suppressed by the trial court was “admissible under the independent source and inevitable discovery doctrines.”

B.

At trial, the cell phone records were admitted into evidence and played a central role in the prosecution of defendant. In his testimony, Detective Holt relied heavily on those records, detailing the phone calls between defendant, Roberts, and Bellinger on the day of Priester’s murder. Detective Holt used a chart to describe to the jury how the phone calls aided his investigation and led to defendant’s arrest. Both Bellinger and Johnson, who testified as the State’s witnesses after cutting favorable plea deals, referenced the extensive phone communications among the co-conspirators on the day Johnson shot Priester.

The State exploited, to the fullest extent, the unlawfully secured phone records to make its case against defendant and to obtain a murder conviction against him. Although the Appellate Division affirmed the conviction, it nevertheless condemned the improper methods employed by Holt in his warrant applications for the toll records of Roberts, defendant, and Bellinger.

III.

We granted certification to determine whether our jurisprudence compelled the suppression of the telephone records, as the trial court concluded.

*420A.

Article I, Paragraph 7 of the New Jersey Constitution protects not only our persons and homes, but also our “papers” and “effects” from “unreasonable searches and seizures.” It also provides that “no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the papers and things to be seized.” N.J. Const, art. I, ¶ 7. “Our constitutional jurisprudence expresses a clear preference for government officials to obtain a warrant issued by a neutral and detached judicial officer before executing a search.” State v. Edmonds, 211 N.J. 117, 129, 47 A.3d 737 (2012) (citing State v. Frankel, 179 N.J. 586, 597-98, 847 A.2d 561 (2004)). Searches conducted without a warrant are presumptively unreasonable under our Constitution. See id. at 129-30, 47 A.3d 737.

In New Jersey, persons have an expectation of privacy in their telephone toll billing records that is protected by Article I, Paragraph 7. Hunt, supra, 91 N.J. at 345-48, 450 A.2d 952.3 Accordingly, police must first obtain judicial authorization — by a warrant or in some other form — before securing a person’s toll billing records without the subscriber’s permission. See id. at 348-50, 450 A.2d 952.

Generally, when the police seize evidence in violation of the warrant requirement, suppression of the evidence is the remedy. State v. Holland, 176 N.J. 344, 353, 823 A.2d 38 (2003) (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)). Our jurisprudence does not countenance the securing of a warrant through duplicitous means. For that reason, a warrant is invalid (1) if a police officer makes “material misstatements in a search warrant affidavit” with knowledge of the falsity of those statements or with reckless disregard for the truth and (2) if excision of the untruthful statements would leave the affidavit without proba*421ble cause for the issuance of the warrant. State v. Howery, 80 N.J. 563, 566-68, 404 A.2d 632 (1979); see also Franks v. Delaware, supra, 438 U.S. at 155, 98 S.Ct. at 2676, 57 L.Ed.2d at 672.

Under that test, the trial court in this case found that the police violated the warrant requirement. The court properly excised those portions of the affidavit that Holt cast in a false light. Thus, the court struck from Holt’s affidavit his recitation of Dickerson’s last account of the shooting that was in direct conflict with Dickerson’s earlier accounts that Holt omitted from the affidavit.

Dickerson’s first statement to Holt was that an unidentified black male fired shots through the front windshield of Priester’s car. Holt showed Dickerson a picture indicating that the driver’s side window, not the front windshield, was shattered. Not surprisingly, Dickerson in his second statement indicated that the unidentified shooter fired through the side window. Dickerson named Roberts — Holt’s prime suspect — as the shooter only after the police told Dickerson a polygraph test indicated that he was untruthful in denying knowledge of the identity of the shooter. However, Holt conveyed to the warrant judge only that Dickerson stated that he had a “clear, unobstructed view of the shooting,” that he observed four to five shots fired through the driver’s side window, and that he “was one hundred percent sure [Roberts] was the shooter.” Thus, the trial court’s deletion of those paragraphs from the affidavit that related, at best, half-truths was appropriate.

But even if the proper approach were, as indicated by the majority, to add all the omitted information to the affidavit — all of Dickerson’s conflicting statements and Roberts’s alibi evidence— Dickerson’s veracity would have been placed in such doubt that it is unlikely that an informed judge would have found probable cause. If Holt revealed the truth in his affidavit, the warrant judge would have learned that Holt showed Dickerson how the shooting occurred, and that Dickerson merely repeated that version in his third statement. The judge would have learned that Dickerson’s basis of knowledge for a key fact about the murder *422was the investigating detective. See State v. Keyes, 184 N.J. 541, 555-56, 878 A.2d 772 (2005) (holding that “[t]o determine an informant’s basis of knowledge, the court must decide whether the tip reveals expressly or clearly how the informant became aware of the alleged criminal activity”) (internal quotation marks omitted). If the full truth were revealed, the judge would have learned that not much weight could be given to Dickerson’s veracity, for Dickerson failed a polygraph test and provided conflicting statements until he finally implicated the target of Holt’s investigation. See id. at 555, 878 A.2d 772 (holding that in applying for a warrant, the police “must give the court an opportunity to make an independent evaluation of the informant’s present veracity”).

Suppression of evidence obtained in violation of the warrant requirement is in keeping with the purpose of the exclusionary rule. That purpose is two-fold — “ ‘to deter future unlawful police conduct’ by denying the prosecution the spoils of constitutional violations” and to “advance[] the ‘imperative of judicial integrity.’ ” State v. Badessa, 185 N.J. 303, 310-11, 885 A.2d 430 (2005) (quoting State v. Evers, 175 N.J. 355, 376, 815 A.2d 432 (2003)). Moreover, if evidence seized unlawfully leads police to other evidence, the exclusionary rule applies to the “later-derived evidence ... as ‘fruit of the poisonous tree.’ ” Holland, supra, 176 N.J. at 353, 823 A.2d 38 (quoting Nix v. Williams, 467 U.S. 431, 442, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377, 386 (1984)).

IV.

A.

I agree with the majority that the State failed to establish the necessary elements for the application of the inevitable-discovery doctrine. State v. Smith, 212 N.J. 365, 392-94, 54 A.3d 772, 787-88 (2012). Accordingly, “[ajbsent the telephone records of Roberts, Bellinger, and defendant, the police had no basis to conceive of a link between the three men.” Id. at 393, 54 A.3d at 788. I *423disagree with the majority that, in light of the constitutionally defective warrant, the independent-source doctrine provided a path to the admission of the telephone records.

The independent-source doctrine is a limited exception to the general rule that evidence procured in violation of the warrant requirement requires suppression. Holland, supra, 176 N.J. at 354, 823 A.2d 38. Under this exception to the exclusionary rule, evidence that is “ ‘discovered by means wholly independent of any constitutional violation’ ” may be admitted into evidence. Ibid. (quoting Nix supra, 467 U.S. at 443, 104 S.Ct at 2508, 81 L.Ed.2,d at 387). In Holland, we established a “framework to be applied when evaluating the independent-source doctrine under Article I, paragraph 7 of the New Jersey Constitution.” Id. at 360, 823 A.2d 38. The State must satisfy a three-prong test to show that evidence, otherwise subject to exclusion under Article I, Paragraph 7, would have been discovered through an independent source. Id. at 360-61, 823 A.2d 38. First, the State must demonstrate that it possessed sufficient independent evidence to establish probable cause for the issuance of a warrant for the telephone records. See ibid. Second, the State must demonstrate by clear and convincing evidence that “the police would have sought a warrant without the tainted knowledge or evidence” acquired by viewing the telephone records. See ibid. Third, the State must also demonstrate, by clear and convincing evidence, that “the initial impermissible [seizure of the telephone records] was not the product of flagrant police misconduct.” See ibid. Significantly, “the government’s failure to satisfy any one prong of the standard will result in suppression of the challenged evidence.” Id. at 363, 823 A.2d 38.

B.

Let us begin with prong three. The State cannot show by clear and convincing evidence that the acquisition of the telephone records of Roberts, Bellinger, and defendant “was not the product *424of flagrant police misconduct.” See id. at 361, 823 A.2d 38. In applying for a warrant, the police “must give the court an opportunity to make an independent evaluation of the informant’s present veracity.” See Keyes, supra, 184 N.J. at 555, 878 A.2d 772. Here, Detective Holt’s expressed purpose for withholding information ft-om his affidavit was to defeat the warrant judge’s ability to independently assess Dickerson’s veracity. Holt testified that his intention was to give the judge only the information that supported his application for a warrant. Holt knew that Dickerson’s credibility was shaky based on three conflicting statements — one of which strongly established that Dickerson could not have seen the shooting. Dickerson’s first statement that the fatal shots were fired through the front windshield was contradicted by irrefutable forensic evidence. But the only information that Holt shared with the warrant judge was that Dickerson claimed to have had a “clear, unobstructed view of the shooting” when he observed four to five shots fired through the driver’s side window. Incredibly, Holt withheld from the warrant judge that Dickerson failed a polygraph examination. Moreover, Holt knew that five alibi witnesses placed Roberts at a place other than the shooting, and yet he did not provide that information to the warrant judge.

It is fair to conclude that Holt kept from the warrant judge material information because he feared that the unruly truth would interfere with his ability to secure a warrant. Holt omitted not peripheral data or extraneous background information, but rather material evidence necessary for an independent judicial officer to assess Dickerson’s veracity.

Next, the police did not even bother to apply for a warrant to obtain Bellinger’s telephone toll records. The police merely sent a fax requesting those records, and the telephone provider simply complied. Not even a half-hearted effort was made to comply with the warrant requirement in this instance.

In defendant’s case, the police sent his telephone provider a request for subscriber information and, in return, received by mistake not only the subscriber information, but also defendant’s *425telephone toll billing records. The police knew that those records could only be acquired through a judicial warrant and that, without a warrant, they were in wrongful possession of those documents. Defendant had a constitutionally guaranteed expectation of privacy in his toll billing records, and the provider’s misstep should not be a windfall to the State, allowing it to evade its obligation to comply with the warrant requirement. The police should have returned those records or applied for a warrant to justify their possession and use of them. The majority takes the position that the police could exploit the provider’s mistake. By the majority’s logic, the police are constitutionally free to open and inspect letters and packages addressed to a known person if, by chance, a mail carrier wrongly delivers the object to headquarters.

We know that the State believed that it was in wrongful possession of defendant and Bellinger’s toll billing records because, after the investigation was completed, Holt applied for a communications data warrant for them. By that time, the records had been used not only to identify defendant, Bellinger, and Johnson, but also in the interrogation of the suspects. At this point, Holt was fully aware that Dickerson’s account was a lie. Indeed, Johnson already had been found discarding the murder weapon and had admitted to shooting Priester. Nevertheless, after consulting with an assistant prosecutor, Holt submitted a second warrant affidavit in which, under oath, he presented again Dickerson’s false claim that Roberts was the shooter. That an assistant prosecutor allowed Holt to present a false affidavit to the court does not minimize the wrongdoing, as the majority believes. The actions of both must be attributed to the State. Holt succeeded in obtaining the second communications data warrant by false representations, which is of overriding importance to the analysis of the misconduct here.

If these serial violations of the warrant requirement do not constitute flagrant police misconduct, it is difficult to imagine a set of facts that would. Our courts will have no faith in warrant applications unless the police have a powerful incentive to tell the *426truth in their sworn affidavits. Judges cannot protect against unreasonable searches and seizures when the police purposely omit material information or provide false information that is intended to mislead them.

Law enforcement officers must walk square corners. They must speak truth to judicial officers. When those charged with enforcing the law secure evidence by foul means, the admission of that evidence in our courts undermines respect for the integrity of the judicial process. On this record, the State cannot show by clear and convincing evidence that the telephone records were not obtained by flagrant police misconduct.

C.

The State also cannot satisfy prong two of the Holland test. It cannot show by clear and convincing evidence that it would have sought a warrant for the telephone records through a presentation of truthful evidence. In fact, the record shows just the opposite. As noted earlier, at the conclusion of the investigation, when given an opportunity to correct the first deceptive affidavit submitted to the court, Detective Holt instead repeated the same misleading statements in his second warrant application.

V.

The independent-source doctrine is a limited exception to the exclusionary rule. By the terms we set forth in Holland, the independent-source doctrine does not apply to the facts here. The exclusionary rule was devised for the type of case that is now before us. The twin purposes of the exclusionary rule are to deter the police by removing the profit from engaging in unconstitutional activity and to uphold judicial integrity by denying the State the use of illicit spoils in court proceedings.

The record reveals egregious violations of our State Constitution. The deception of a judge charged with the responsibility of making a probable-cause determination before issuing a warrant is *427a serious breach of trust. Such conduct must be deterred. I cannot join the majority because our exclusionary-rule jurisprudence commands the suppression of evidence unlawfully acquired in this case. Unlike the majority, I would reverse defendant’s conviction — a conviction based on evidence procured in violation of our Constitution. I therefore respectfully dissent.

For affirmance — Justices LaVECCHIA, HOENS, PATTERSON, and Judge WEFING (temporarily assigned) — 4.

For reversal — Chief Justice RABNER and Justice ALBIN — 2.

See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

Because the trial court suppressed defendant and Bellinger's cell phone records as the fruits of the first warrant procured by Holt's deceptive affidavit, it did not have to condemn Holt's later false affidavit in support of the issuance of the second warrant for those specific cell phone records.

Telephone toll billing records are afforded greater protection under the New Jersey Constitution than under the Fourth Amendment of the United States Constitution. Id. at 344-46, 823 A.2d 38.