REPORT OF THE SUPREME COURT SPECIAL COMMITTEE ON TELEPHONIC AND
ELECTRONIC SEARCH WARRANTS – PUBLICATION FOR COMMENT
The Supreme Court invites written comments on the January 22, 2010 Report of
the Supreme Court Special Committee on Telephonic and Electronic Search Warrants
published with this notice. The report also can be accessed and downloaded on-line
from the Judiciary’s website at njcourts.com.
The Special Committee, chaired by retired Appellate Division Judge and former
Administrative Director of the Courts Richard J. Williams, was created as a follow-up to
State v. Pena-Flores, 198 N.J. 6 (2009), in which decision the Supreme Court
addressed the issue of warrantless searches of motor vehicles. In Pena-Flores, the
Court stated that:
We should give police access to an efficient and speedy electronic
and telephonic warrant procedure that will be available to them on
the scene; that will obviate the need for difficult exigency
assessments; and that will guarantee our citizens the protections
that the warrant requirement affords – an evaluation of probable
cause by a neutral judicial officer. [198 N.J. at 36.]
The Special Committee was directed by the Court to “study the telephonic and
electronic warrant procedures and make practical suggestions to ensure that technology
becomes a vibrant part of our process. That will include recommendations for uniform
procedures (including forms), equipment, and training, along with an evaluation of the
scheme once it is underway.” 198 N.J. at 35-36. The Special Committee’s
recommendations are set forth in its report.
Please send any comments on the Special Committee’s report and
recommendations in writing by Friday, June 18, 2010 to:
Glenn A. Grant, J.A.D.
Acting Administrative Director of the Courts
Attention: Comments on Reports
Hughes Justice Complex; P.O. Box 037
Trenton, New Jersey 08625-0037
Comments on the Committee’s report and recommendations also may be submitted by
Internet e-mail to the following address: Comments.Mailbox@judiciary.state.nj.us .
The Supreme Court will not consider comments submitted anonymously. Those
submitting comments by mail should include their name and address, and those
submitting comments by e-mail should include their name, address, and e-mail address.
1
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Comments submitted in response to this notice will be made public unless the author
specifically requests confidentiality. In the absence of such a request, the comments,
including the identity of the commenter, will be posted on the Judiciary’s Internet
website, updated on a periodic basis. Note that this represents a change from the usual
approach of not making comments public until after Court action on the matter.
/s/ Glenn A. Grant
Glenn A. Grant, J.A.D.
Acting Administrative Director of the Courts
Dated: May 19, 2010
January 22, 2010
Supreme Court Special Committee
on
Telephonic and Electronic Search Warrants
TABLE OF CONTENTS
PAGE
I. BACKGROUND........................................................................................................1
II. CHARGE TO THE COMMITTEE..............................................................................4
III. COMMITTEE COMPOSITION...................................................................................5
IV. STATUS OF TELEPHONIC AND ELECTRONIC SEARCH WARRANTS...............6
A. Committee Work Plan........................................................................................6
B. National Experience with Telephonic and Electronic Search Warrants.............7
C. New Jersey’s Experience with Telephonic and Electronic Search Warrants.....10
1. State v. Valencia and Rule 3:5-3(b)........................................................10
2. Statewide Attorney General and New Jersey County
Prosecutor’s Association Initiatives.........................................................13
3. Burlington County Prosecutor’s Office’s Proposed System
for Obtaining Telephonic Search Warrants.............................................14
V. CONCEPTUAL ISSUES............................................................................................17
VI. TECHNOLOGY ISSUES...........................................................................................19
A. Goals.................................................................................................................19
B. Application Process...........................................................................................19
C. Models Considered............................................................................................20
1. A central dispatch model using police radios (The Burlington model).....20
2. A central dispatch model using police radios coupled
with Judicial control of the record............................................................21
3. Using encrypted police radios.................................................................22
4. Utilizing a private vendor to manage and record the conference call......22
5. Using cell phones in combination with a private vendor to manage
and record the conference call................................................................23
6 Providing direct access to emergent duty prosecutors and judges
through use of pre-programmed cell phones coupled with a Judiciary-
operated recording system.....................................................................24
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PAGE
VII. HUMAN RESOURCE ISSUES..................................................................................29
A. Current Judicial Resources...............................................................................29
B. Current Emergent Duty Policies and Responsibilities........................................30
C. Expected Volume of Automobile Searches.......................................................31
D. Models Considered for Providing Judicial Resources........................................36
1. Use of selected pilot programs to allow for greater development
of data on the volume of cases...............................................................36
2. Exclusive use of Criminal Division Judges to respond to
applications.............................................................................................37
Recommendation: Options to enhance or replace the current emergent duty
system...............................................................................41
1. Using Municipal Court Judges to respond to applications............41
2. Creation of a regional emergent duty call system to respond to
applications..................................................................................42
3. Creation of a statewide emergent duty call system to respond to
applications..................................................................................42
4. Use of special masters or magistrates.........................................43
VIII. ADMINISTRATIVE ISSUES......................................................................................45
A. Goals .....................................................................................................45
B. Recommendations.............................................................................................45
APPENDIX A
Description of Methods Used to Estimate
APPENDIX B
Duplicate Original Search Warrant Form
APPENDIX C
Telephonic Search Warrant Worksheet
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COMMITTEE’S RECOMMENDATIONS
TECHNOLOGY ISSUES RECOMMENDATIONS
RECOMMENDATION Pre-programmed cell phones should be utilized by law
enforcement officers, emergent duty prosecutors and
emergent duty judges in seeking, and fielding,
telephonic search warrant applications.
RECOMMENDATION It is the responsibility of the Judiciary to record any
sworn oral testimony taken in support of a telephonic or
electronic search warrant application. The preferred
manner of recording such testimony is through the use
of the Judiciary’s CourtSmart system, but a hand-held
recording device would meet minimally acceptable
standards.
HUMAN RESOURCE ISSUES RECOMMENDATIONS
RECOMMENDATION During regular court hours, Criminal Division Judges
should respond to requests for telephonic search
warrants
RECOMMENDATION The present Superior Court emergent duty structure
should be used to respond to requests for search
warrants made via telephonic means after normal
business hours. However, the current schedule should
be amended to: (1) ensure that each vicinage
specifically designates at least one judge as the backup
emergent duty judge; and (2) ensure that any vicinage
“Do Not Disturb” policies do not place limits on
telephonic search warrant applications.
RECOMMENDATION The county prosecutors should ensure that a sufficient
number of emergent duty prosecutors are available to
handle requests from law enforcement for telephonic
search warrants. As such, there should be at least one
emergent duty prosecutor, and a backup emergent duty
prosecutor, in each county.
RECOMMENDATION Within a month of the Supreme Court’s approval of the
recommendations contained in this report, each
Assignment Judge, in consultation with the County
Prosecutor, should develop an implementation plan and
submit it to the Administrative Director of the Courts.
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RECOMMENDATION The vicinages and the Administrative Office of the
Courts should closely monitor the volume of telephonic
search warrant requests in order to allow for rapid
implementation of an alternative system if the volume of
searches is dramatically greater than the current system
can address.
RECOMMENDATION If the number of requests for telephonic search warrants
exceeds the ability of the current emergent duty system
to handle them, another system should be implemented
as quickly as possible.
RECOMMENDATION Options to enhance or replace the current emergent
duty system.
ADMINISTRATIVE ISSUES RECOMMENDATIONS
RECOMMENDATION R. 3:5-3(b) should be amended to remove the references
to “exigent circumstances,” and to more closely follow
the language contained in R. 3:5-3(a) regarding
applications for in-person warrants.
RECOMMENDATION A duplicate original warrant form should be
promulgated for use throughout the State.
RECOMMENDATION A worksheet for judges to record the details of
telephonic search warrant applications should be
promulgated for use throughout the State.
RECOMMENDATION R. 3:5-5(b) should be amended to: (1) delete the
requirement that the applicant sign the transcript of any
oral testimony taken in connection with a telephonic
search warrant application, and (2) specify that the
prosecutor shall have a transcript prepared, and shall
thereafter review the transcript, and any discrepancies
must be brought to the attention of the judge who
issued the warrant within 30 days of the prosecutor’s
receipt of the transcript.
RECOMMENDATION R. 3:5-5(a) should be amended to allow for the inventory
filing and return to be accomplished via fax or other
electronic means.
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RECOMMENDATION R. 3:5-7(g) should be amended to clarify that in the
absence of bad faith, a telephonically or electronically
authorized search warrant should not be rendered
invalid due to technical difficulties or errors in recording
the application, or by errors in completing the duplicate
original warrant form.
RECOMMENDATION The Administrative Office of the Courts, in conjunction
with the Criminal Division Presiding Judges, should
develop a training program for judges handling
telephonic search warrants. In addition, the Office of
the Attorney General, in conjunction with the County
Prosecutors and the New Jersey State Police, should
develop a similar training program for law enforcement.
RECOMMENDATION The Administrative Office of the Courts, in cooperation
with the Office of the Attorney General, should develop
specific procedures regarding the collection of data to
closely monitor the handling of telephonic search
warrants.
RECOMMENDATION If Municipal Court Judges are eventually enlisted to
respond to telephonic search warrant applications,
reviewing courts should give the probable cause
determinations made by Municipal Court Judges the
same “substantial deference” given to similar
determinations made by Superior Court Judges.
RECOMMENDATION If Municipal Court Judges are eventually enlisted to
respond to telephonic search warrant applications, R.
3:5-3(b) should be amended to explicitly grant Municipal
Court Judges that authority.
I. BACKGROUND
On February 25, 2009, the New Jersey Supreme Court decided State v.
Pena-Flores, 198 N.J. 6 (2009), an opinion involving two consolidated cases,
State v. Pena-Flores and State v. Fuller, that involved warrantless automobile
searches.
In deciding the two cases, the Court was asked to reexamine the
standards governing the automobile exception to the requirement that police
officers must obtain a warrant before searching a motor vehicle. The Court was
asked to return to the standard set forth in State v. Alston, 88 N.J. 211, 234-35
(1981), which held that the only requirements for the automobile exception were
an unforeseen stop, probable cause, and the inherent mobility of the vehicle. At
issue was whether a mobile automobile, in and of itself, constituted exigent
circumstances sufficient to justify a warrantless search. After hearing original
arguments, the Court requested supplemental briefing and further argument on
the question of whether it should adopt the federal standard in cases involving
the automobile exception to the warrant requirement. Subsequently, in a 4-3
decision, the Court reaffirmed its “longstanding precedent” that in New Jersey, a
warrantless search of an automobile is permitted when
(1) the stop is unexpected; (2) the police have probable cause to
believe that the vehicle contains contraband or evidence of a crime;
and (3) exigent circumstances exist under which it is impracticable
to obtain a warrant.
[Id. at 11, 29.]
The Court also reaffirmed that “exigency encompasses far broader
considerations than the mere mobility of the vehicle,” and that it must be
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determined on a case-by-case basis under the totality of the circumstances, with
a focus on officer safety and the preservation of evidence. Id. at 29.
The Court acknowledged the great difficulty that police officers could have
in accurately assessing the presence of exigent circumstances. However, rather
than relaxing the legal principles that governed warrantless searches, the Court
felt that the problem could be solved by providing immediate access to a judge to
obtain a search warrant by telephonic or electronic means. To accomplish this,
the Court indicated that it would revise the procedures for obtaining telephonic
and electronic search warrants. A search pursuant to a telephonic or electronic
warrant had historically been considered the equivalent of a warrantless search.
That fact, along with R. 3:5-3(b)’s requirement that the applicant demonstrate the
presence of exigent circumstances “sufficient to excuse the failure to obtain a
written warrant,” had relegated telephone or electronically obtained warrants to a
kind of second-class status. Id. at 33. The Court noted that other jurisdictions
had recognized long ago “that a warrant obtained by telephonic or electronic
means is the analytical equivalent of an in-person warrant and should be treated
accordingly.”1 Ibid. In addition, legal commentators had also suggested that
expanding the use of telephonic search warrants would benefit both the judiciary
and law enforcement.2 Id. at 34-35. The Court therefore stated that it would
amend R. 3:5-3(b) “to clarify the parity between the various methods for obtaining
a warrant and to underscore that an officer may resort to electronic or telephonic
1
See Cal.Penal Code § 1526(b) (West 2008); N.Y.Crim. Proc. Law § 690.45(2) (McKinney 2008);
Or.Rev.Stat. § 133.545(5) (2007); Wis. Stat. § 968.12(3) (2007); and Wash.Crim. R. 2.3(c) (2008).
2
See Laurence A. Benner & Charles T. Samarkos, Searching for Narcotics in San Diego:
Preliminary Findings from the San Diego Search Warrant Project, 36 Cal. W. L. Rev. 221, 223,
263, 265 (2000).
2
means without the need to prove exigency.” Id. at 35. The Court also
announced that it would form a Task Force, which would
. . . study the telephonic and electronic warrant procedures and
make practical suggestions to ensure that technology becomes a
vibrant part of our process. That will include recommendations for
uniform procedures (including forms), equipment, and training,
along with an evaluation of the scheme once it is underway.”
[Id. at 35-36].
In taking these actions, the Court hoped to
. . . give police access to an efficient and speedy electronic and
telephonic warrant procedure that will be available to them on the
scene; that will obviate the need for difficult exigency assessments;
and that will guarantee our citizens the protections that the warrant
requirement affords – an evaluation of probable cause by a neutral
judicial officer.”
[Id. at 36].
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II. CHARGE TO THE COMMITTEE
On March 31, 2009, Chief Justice Stuart Rabner appointed the Supreme
Court Special Committee on Telephonic and Electronic Search Warrants
(hereinafter Committee) to conduct the study that the Court had requested. The
Committee was charged with studying the procedures used in New Jersey and
other jurisdictions for obtaining telephonic and electronic search warrants. The
Committee was also instructed to examine the policy and financial issues
associated with implementing procedures for telephonic and electronic search
warrants, and, giving full consideration to all relevant interests, to make
recommendations to the Court. Finally, the Committee was asked to consider
the most appropriate means of implementing its recommendations, such as
through amendments to the Rules of Court or by some other means.
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III. COMMITTEE COMPOSITION
Hon. Richard J. Williams, J.A.D., Retired, Chair
Hon. Susan L. Reisner, J.A.D., Vice-Chair
Hon. Harry G. Carroll, P.J.Crim.
Hon. Albert J. Garofolo, P.J.Crim.
Hon. Joan Robinson Gross, P.J.M.C.
Hon. Thomas S. Smith, Jr., P.J.Crim., Retired
Evans C. Anyanwu, Esq., Garden State Bar Association
Joseph J. Barraco, Esq., Assistant Director for Criminal Practice,
New Jersey Administrative Office of the Courts
Arnold N. Fishman, Esq., New Jersey State Bar Association, Municipal
Court Practice Section
Chief Kevin Gaffney, New Jersey Association of Chiefs of Police
Darren M. Gelber, Esq., Association of Criminal Defense Lawyers of N.J.
Bruce I. Goldstein, Esq.
Theodore F.L. Housel, Esq., Atlantic County Prosecutor, County Prosecutors
Association of New Jersey
Dale Jones, Esq., Assistant Public Defender
Ralph J. Lamparello, Esq., New Jersey State Bar Association, Criminal
Law Section
Boris Moczula, Esq., Assistant Attorney General, Division of Criminal Justice
Jeffrey A. Newman, Deputy Clerk, Appellate Division, New Jersey
Administrative Office of the Courts
Major Christopher W. O’Shea, New Jersey State Police
Alexander R. Shalom, Esq., Assistant Deputy Public Defender
John Vasquez, Esq., Hispanic Bar Association
Lawrence Walton, Esq., Chief, Judicial Services, Municipal Court
Services, Administrative Office of the Courts
Committee Staff
Vance D. Hagins, Esq., Assistant Chief, Criminal Practice Division,
Administrative Office of the Courts
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IV. STATUS OF TELEPHONIC AND ELECTRONIC SEARCH WARRANTS
A. Committee Work Plan
The Committee reviewed case law, state statutes, court rules and
scholarly articles in an effort to identify which jurisdictions across the United
States permitted telephonic or electronic search warrants,3 and to determine
whether any of those jurisdictions had established procedures that governed the
issuance of such warrants. The Committee also examined the Report of the
Supreme Court’s Committee on Criminal Practice, 113 N.J.L.J. 697 (June 21,
1984), and Attorney General Law Enforcement Directive No. 2002-2: Approval of
Search Warrant Applications, Execution of Search Warrants, and Procedures to
Coordinate Investigative Activities Conducted by Multiple Law Enforcement
Agencies (August 8, 2002), in order to review the current requirements and
procedures for issuing telephonic search warrants in New Jersey. See
http://www.nj.gov/oag/dcj/agguide/directives/dir_2002_2.pdf. The Committee
also met with representatives of the Burlington County Prosecutor’s Office,
which, following the Court’s decision in Pena-Flores, had developed a plan for
obtaining telephonic search warrants which it was proposing for implementation.
3
Throughout this report the Committee will refer to telephonic and electronic search warrants as
telephonic warrants.
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B. National Experience with Telephonic and Electronic Search
Warrants
In addition to New Jersey, thirty-one states,4 the District of Columbia, and
the federal courts currently have statutes or court rules that allow for search
warrant applications, affidavits, or warrants to be transmitted by telephonic or
electronic means. Of those jurisdictions, nine permit various forms of electronic
technology to be used in the search warrant application process, but do not
permit oral applications over the telephone. A number of states, for example,
allow the supporting affidavits and/or warrants to be transmitted by fax.5 Other
states allow the use of technologies such as video conferencing, closed circuit
television, or e-mail.6
Before the Supreme Court’s decision in Pena-Flores, New Jersey was the
only jurisdiction in the country that required the presence of exigent
circumstances before a telephonic search warrant could be issued. It was not,
however, the only jurisdiction that placed some sort of limitation on the use of
telephonic or electronic means to apply for and obtain a warrant. The federal
rules, for example, allow a judge to base a search warrant on sworn testimony,
including information communicated by telephone or other reliable electronic
4
Those states are Alabama, Alaska, Arkansas, Arizona, California, Colorado, Georgia, Hawaii,
Idaho, Illinois, Indiana, Kansas, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska,
New Hampshire, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania,
South Dakota, Utah, Vermont, Virginia, Washington and Wisconsin.
5
Those states are Colorado, Kansas, Missouri, Vermont and Virginia. See Colo. R. Crim. P.
41(c)(3); Kan. Stat. Ann. §§ 22-2502(a), 22-2504; Mo. Rev. Stat. § 542.276, subsections 3 and 6;
V.R.Cr.P. Rule 41(h); and Va. Code Ann. § 19.2-54.
6
Those states are Georgia, New Hampshire, North Carolina and Pennsylvania. See O.C.G.A. §
17-5-21.1(a); RSA 595-A:4 and RSA 595A:4-a; N.C. Gen. Stat. § 15A-245(a)(3); and Pa. R. Crim.
P. 203(A) and Pa. R. Crim. P. 103.
7
means, “if doing so is reasonable under the circumstances.” See F.R.Crim.P.
41(d). Four states – Alabama, North Dakota, South Dakota and Utah - place a
similar “reasonable under the circumstances” condition on the issuance of
telephonic search warrants.7 Similarly, Montana requires that if a search warrant
application is by telephone, the applicant must state the reasons that justify the
immediate issuance of a warrant. See Mont. Code Anno., § 46-5-222(1).
Nebraska requires a law enforcement officer to contact a county attorney and
explain the reasons that a telephonic warrant should be issued. If the attorney is
satisfied that a warrant is justified, and that circumstances require that it be
issued immediately, he or she must then contact the judge or magistrate and
state that he or she is convinced that a telephonic warrant should be issued. See
R.R.S. Neb. § 29-814.03.
Other states are even more restrictive. Minnesota allows oral requests for
search warrants only when circumstances “make it reasonable to dispense with a
written affidavit.” See Minn. R. Crim. P. 36.02. Illinois also permits telephonic
search warrants when “circumstances make it reasonable” to dispense with a
written affidavit, but only when the underlying crime is terrorism or a related
offense. See § 725 ILCS 5/108-4(b)(1).
Of the twenty-four other jurisdictions that permit telephonic search
warrants, twenty8 have procedural safeguards that are substantially similar to
those contained in New Jersey’s R. 3:5-3(b); namely, requiring the judge to
7
See Ala. R. Crim. P. Rule 3.8(b)(1); N.D.R. Crim. P. Rule 41(c)(2)(A); S.D. Codified Laws §
23A-35-5; and Utah R. Crim. P. Rule 40(L)(1).
8
Those jurisdictions are Alabama, Alaska, Arkansas, Arizona, California, Hawaii, Idaho, Illinois,
Indiana, Louisiana, Minnesota, Montana, Nebraska, New York, North Dakota, Oregon, South
Dakota, Utah, Wisconsin, and the federal courts.
8
contemporaneously record the officer’s sworn oral testimony or take longhand
notes, have the testimony transcribed, and then certify the transcript; requiring
the officer to enter the terms of the search verbatim, and print the issuing judge’s
name, on a duplicate original warrant; requiring the judge to issue a written
confirmatory warrant; and requiring the judge to put the time that the duplicate
original warrant was issued on the written confirmatory warrant. It is therefore
clear that the vast majority of jurisdictions that permit telephonic warrants felt that
it was important, as our Supreme Court did in State v. Valencia, 93 N.J. 126
(1983), to enact procedures that assured the “integrity and soundness” of the
judge’s decision to issue that warrant.
During the course of its research, Committee staff spoke to a number of
law enforcement officials from various states across the country, and on more
than one occasion, officials remarked that they could not remember the last time
that someone had applied for a telephonic search warrant. It therefore seemed,
at least anecdotally, that although telephonic search warrants were permitted,
they were rarely sought in practice. The Committee did not find any jurisdictions
that had established statewide procedures for obtaining telephonic search
warrants. The Committee also reviewed the study of the San Diego Search
Warrant Project, which has been cited in support of the more widespread use of
telephonic applications for search warrants. However, a closer look at the study
of that project revealed that only 14 of 122 search warrants were telephonic
warrants, and not a single warrant, telephonic or otherwise, was issued solely for
the search of an automobile. See Laurence A. Benner & Charles T. Samarkos,
Searching for Narcotics in San Diego: Preliminary Findings from the San Diego
9
Search Warrant Project, 36 Cal. W. L. Rev. 221 (2000). That is probably
because, unlike New Jersey, California follows the federal standard regarding
warrantless automobile searches. Under that standard, a warrantless search of
an automobile is permissible if probable cause exists and the auto is mobile.
See Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.
2d 1031, 1036 (1996); and People v. Chavers, 33 Cal. 3d 462, 469 (1983). As it
was envisioned that any telephonic search warrant procedures developed in New
Jersey would be used primarily for roadside automobile stops, the San Diego
study did not offer much guidance in that regard.
C. New Jersey’s Experience with Telephonic and Electronic
Search Warrants
1. State v. Valencia and Rule 3:5-3(b)
In New Jersey, the procedures for obtaining telephonic or electronic
search warrants are governed by R. 3:5-3(b), which reads as follows:
(b) A Superior Court judge may issue a search warrant upon
sworn oral testimony of an applicant who is not physically present.
Such sworn oral testimony may be communicated to the judge by
telephone, radio or other means of electronic communication. The
judge shall contemporaneously record such sworn oral testimony
by means of a tape-recording device or stenographic machine if
such are available; otherwise, adequate longhand notes
summarizing what is said shall be made by the judge. Subsequent
to taking the oath, the applicant must identify himself or herself,
specify the purpose of the request and disclose the basis of his or
her information. This sworn testimony shall be deemed to be an
affidavit for the purposes of issuance of a search warrant. A
warrant may issue if the judge is satisfied that exigent
circumstances exist sufficient to excuse the failure to obtain a
written warrant, and that sufficient grounds for granting the
application have been shown. Upon approval, the judge shall
memorialize the specific terms of the authorization to search and
shall direct the applicant to enter this authorization verbatim on a
form, or other appropriate paper, designated the duplicate original
search warrant. This warrant shall be deemed a search warrant for
10
the purpose of R. 3:5. The judge shall direct the applicant to print
the judge's name on the warrant. The judge shall also
contemporaneously record factual determinations as to exigent
circumstances. If a recording is made, the judge shall direct that
the testimony be transcribed as soon as practicable. This
transcribed record shall be certified by the judge. The judge shall
promptly issue a written confirmatory search warrant and shall
enter thereon the exact time of issuance of the duplicate original
warrant. In all other respects, the method of issuance and contents
of the warrant shall be that required by subsection (a) of this rule.
R. 3:5-3(b) was the result of the New Jersey Supreme Court’s decision in
State v. Valencia, 93 N.J. 126 (1983). In Valencia, the Court held that a
telephonically authorized search was the equivalent of a warrantless search. Id.
at 136. The Court also required a law enforcement officer seeking a telephonic
warrant to show not only the presence of probable cause to search, but also that
exigent circumstances make it necessary to bypass obtaining a written warrant.
Id. at 137. In order to assure the “integrity and soundness” of a judge’s decision
to issue a telephonic warrant, the Court required the following safeguards:
The applicant-police officer must suitably identify himself; he must
specify the purpose of the request. He must also disclose the basis
for the information he intends to impart to the judge and must be
placed under oath or affirmation by the judge before presenting any
information. The judge shall also make a contemporaneous record
of the application, either by tape or stenographic recording or by
making adequate notes thereof. The judge shall also make a
contemporaneous record or notation of his factual determination as
to exigent circumstances and probable cause. He shall also
memorialize the specific terms of his authorization to search.
Further, promptly after such authorization, the judge shall issue a
written confirmatory search warrant and shall file that warrant
together with all documents evidencing the oral application and
authorization with the clerk of the court.
[Id. at 138-139].
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The Court also asked its Criminal Practice Committee to “assist . . . in the
adoption of appropriate rules” for the issuance of telephonic search warrants. Id.
at 142.
Approximately one year later, the Criminal Practice Committee submitted
a proposed draft of R. 3:5-3(b) for the Court’s approval. See Report of the
Supreme Court’s Committee on Criminal Practice, 113 N.J.L.J. 697 (June 21,
1984). In drafting R. 3:5-3(b), the Committee examined the statutes and court
rules of other jurisdictions across the United States that permitted telephonic
search warrants, and discovered that those jurisdictions had several procedures
in common. As a result, the Committee included those procedures in its
proposed R. 3:5-3(b) and expanded upon the procedural safeguards required by
Valencia. The proposed rule, for example, (1) provided that only Superior Court
Judges could issue telephonic search warrants; (2) permitted oral testimony not
only by telephone, but also by radio or other means of electronic communication;
(3) expressed a preference for recording the conversation by tape or
stenographic machine over longhand notes; (4) required the judge to record the
specific terms of the authorization to search and direct the applicant to copy
those terms verbatim onto a duplicate original warrant; (5) required the judge to
direct the applicant to print the judge’s name on the duplicate original warrant; (6)
required the judge to have the tape or stenographic recording transcribed
forthwith; (7) required the judge to certify the transcribed record; and (8) required
the judge to record onto a written confirmatory warrant the time of issuance of the
duplicate original warrant. The Court adopted R. 3:5-3(b) on July 26, 1984. Until
the Court’s decision in Pena-Flores removed the requirement that a police officer
12
prove the existence of exigent circumstances when seeking a telephonic warrant,
only minor stylistic changes had been made to the rule.
2. Statewide Attorney General and New Jersey County
Prosecutor’s Association Initiatives
In 1985, shortly after the adoption of R. 3:5-3(b), the Attorney General and
the County Prosecutor’s Association issued a joint policy statement requiring that
all search warrant applications be reviewed by the Attorney General or his or her
designees, or by the appropriate County Prosecutor or his or her designees, prior
to submission to a court. That joint policy statement was later superseded by
Attorney General Law Enforcement Directive No. 2002-2: Approval of Search
Warrant Applications, Execution of Search Warrants, and Procedures to
Coordinate Investigative Activities Conducted by Multiple Law Enforcement
Agencies (August 8, 2002). Directive No. 2002-2 requires that no law
enforcement officer may apply to a judge for a search warrant without first
obtaining “express authorization” from an appropriate “Designated Attorney.” Not
only is the “Designated Attorney” responsible for determining whether sufficient
probable cause exists to justify requesting a search warrant, he or she is also
responsible for practically every aspect of the warrant application, including
selecting the appropriate court to hear the application; making sure that the
application form has been properly completed (or, in the case of a telephonic
warrant, making sure that the applicant has answered each question on the
form); making sure that the areas to be searched, and the property to be seized,
have been adequately and specifically described; determining, if necessary,
whether exigent circumstances are present; and deciding how the warrant should
13
be executed. The Division of Criminal Justice and each County Prosecutor is
responsible for keeping a list of designated attorneys who are available at all
times to prepare, review and approve search warrant applications. Those lists
are to be made available to all appropriate law enforcement agencies.
Directive No. 2002-2 was binding on all law enforcement agencies in the
state. It remains in effect today.
Although procedures for issuing telephonic search warrants have been in
place for over twenty-five years, it appears that such warrants have rarely been
sought in New Jersey. An informal inquiry of county prosecutors revealed that
only one Prosecutor’s Office reported fielding any requests for telephonic
warrants in recent memory.
3. Burlington County Prosecutor’s Office’s Proposed System for
Obtaining Telephonic Search Warrants
Shortly after the Committee began its work, it learned that the Burlington
County Prosecutor’s Office had drafted tentative procedures for applying for
telephonic search warrants. Consequently, members of the Burlington County
Prosecutor’s Office were asked to meet with the Committee to outline that office’s
proposed procedures. The proposed procedures are as follows:
• A police officer stops an automobile and observes something that
leads the officer to believe that there is probable cause to search the car.
• The officer, via cell phone or police radio, would contact Central
Communications (Central) and ask Central to contact the duty prosecutor.
Central has the ability to patch an officer who calls in via his or her police
radio into a phone line. Central would then contact the duty prosecutor,
who would in turn immediately call the officer.
• The officer would explain to the duty prosecutor the nature of the
car stop and the facts constituting probable cause. If the duty prosecutor
agreed with the officer that there was probable cause to search the car
14
and/or its occupants, the duty prosecutor would authorize the application
for a telephonic search warrant. The officer would have a carbonless pad
in his car with blank duplicate original search warrant forms, which he
would then complete under the prosecutor’s telephonic supervision.
• When the form was completed in its entirety, the assistant
prosecutor and/or police officer would contact Central and request that
Central contact the emergent duty judge to hear the telephonic search
warrant application.
• Central would contact the emergent duty judge, who would be
given a phone number that allowed him or her to dial into a “conference
call” system. The prosecutor and police officer would have already called
into the “conference room,” and would be waiting for the judge. The
Burlington County Prosecutor’s Office planned to purchase a phone
conference system that could handle up to eight (8) parties. Each party
would be provided with a telephone number. The duty judge, for example,
would call 609-265-1000; the prosecutor would call 609-265-1001; and the
officer would call 609-265-1002. Those lines would automatically be
connected to each other, and all dialogue would be recorded on a
separate server once a party dialed into the system. Thus, the entire
conversation between the three parties, from start to finish, would be
recorded onto the Burlington County Prosecutor’s Office’s server.
• Once the judge enters the “conference center,” the parties would
identify themselves, the prosecutor would explain the nature of the call,
and the judge would swear in the officer for the presentation of the
probable cause application. The judge would also have a blank copy of
the “duplicate original” search warrant form. If the judge found that there
was probable cause for the search, he or she would authorize the search
of the automobile and/or persons identified. The judge would also
authorize the officer to sign the judge’s name on the duplicate original
warrant form. If the judge so desires, he or she could also make separate
notes on his or her copy of the duplicate original form. The call would then
conclude.
• A carbonless copy of the “duplicate original” form would be
provided to the driver of the car as required by court rule. There would be
four carbonless copies of the form. The original would be filed with the
Court; a second copy would be for the Burlington County Prosecutor; a
third copy would be for the officer; and a fourth copy to be given to the
driver.
• The inventory of the search would also be completed on the
duplicate original form, and a carbonless copy of the duplicate original
form would be provided to the driver of the car. The form would be
delivered to the court on the following day. The duplicate original form
15
would also contain a space for the judge to determine whether, pursuant
to R. 3:5-3(b), the duplicate original would also serve as a written
confirmatory warrant. This would eliminate the need for the court to
prepare separate forms.
• The Prosecutor’s Office would copy the conversation from the
server onto a CD-ROM and deliver it to the court. The Prosecutor’s Office
would also prepare a transcript as required by R. 3:5-3(b).
It was estimated that the application process, beginning when the officer
called Central Communications, would take approximately 45 minutes to
complete. In addition, the conferencing system would automatically time and
date stamp the times that the calls were received. The system was expected to
cost between $12,000-13,000.
The Burlington County Prosecutor’s Office eventually decided to hold off
on purchasing the conferencing equipment, and on implementing its proposed
procedures, until after the Committee completed its work and the Court issued its
Administrative Determinations.
16
V. CONCEPTUAL ISSUES
In developing a system that was consistent with the Court’s intent to “give
police access to an efficient and speedy telephonic search warrant procedure
that will be available to them on the scene,”9 the Committee created
subcommittees to examine three different areas: (1) technological requirements;
(2) human resource requirements; and (3) administrative requirements. Before
the subcommittees began their work, however, the Committee agreed on a
number of conceptual issues.
First, the Committee recognized that officers seeking telephonic search
warrants would often be stopped on the sides of heavily-traveled highways and
roads, along with the cars’ drivers and occupants. This raised safety concerns.
There were also concerns that an officer who detained a vehicle and was
engaged in seeking a telephonic warrant would necessarily be unable to tend to
other police matters. This could create resource issues, especially in smaller
police departments. Those safety and police resource concerns dictated that
applications for telephonic search warrants should be handled as quickly as
possible. Consequently, the Committee agreed that telephonic search warrant
applications should be completed in no more than 45 minutes, with an ideal goal
of 30 minutes.
Second, the Committee recognized that prosecutors must be involved in
the telephonic search warrant application process. As noted above, Attorney
General Law Enforcement Directive No. 2002-2 requires that law enforcement
officers must first obtain “express authorization” from an appropriate “Designated
9
State v. Pena-Flores, 198 N.J. at 36.
17
Attorney” before contacting a judge for a search warrant. (See Section IVC2).
As telephonic search warrants have historically been rarely sought in practice,
the timely availability of assistant prosecutors and the technology necessary to
involve them in the process have heretofore not been reviewed. However, as the
Committee anticipates that the number of telephonic search warrant applications
will increase in the future, it views the timely and effective involvement of
assistant prosecutors as a necessity.
Third, the Committee agreed that any system developed for handling
telephonic search warrant applications should ensure that the official court record
is controlled by the Judiciary.
18
VI. TECHNOLOGY ISSUES
A. Goals
In examining technology issues, the goal was to develop a telephonic or
electronic system for search warrant requests that: (1) would enable multiple
parties to be involved; (2) would ensure that all communications were secure and
not subject to interception by others; (3) would ensure that the official court
record is controlled by the Judiciary; (4) was economically reasonable; (5) was
relatively easy to use; and (6) allowed the search warrant application process to
be completed in no more than 45 minutes, with an ideal goal of 30 minutes.
B. Application Process
To determine technology needs, the following steps for currently obtaining
a telephonic search warrant were identified:
1. The police officer makes a motor vehicle stop and believes
there is probable cause to search.
2. The police officer contacts the county’s on-duty prosecutor.
3. The police officer and the on-duty prosecutor have a discussion
regarding whether or not to request a search warrant. If the
prosecutor believes a search warrant is necessary, the
prosecutor, with the police officer still on the connection,
contacts the on-duty judge.
4. The judge will swear in the police officer.
5. The police officer will identify himself, state the purpose of the
request and present facts supporting the applications.
6. The sworn oral testimony will be recorded, or if this is not
possible, the judge will make contemporaneous longhand notes
summarizing what is said.
7. A warrant will be issued if the facts support the issuance of a
warrant.
8. If the judge approves a warrant, the judge will memorialize the
terms of the authorization and instruct the officer to enter the
terms of the authorization on a form that will be deemed a
duplicate original search warrant.
9. The judge will issue a confirmatory search warrant and will enter
the exact time of issuance of the duplicate original search
warrant.
19
C. Models Considered
The Committee considered six models for handling telephonic applications
for search warrants:
(a) A central dispatch model using police radios (The
Burlington model);
(b) A central dispatch model using police radios coupled
with Judicial control of the record;
(c) Using encrypted police radios;
(d) Using a private vendor to manage and record the
conference call;
(e) Using cell phones in combination with a private
vendor to manage and record the conference call;
(f) Use of a Judiciary-operated recording system and
equipping police, and emergent duty judges and
prosecutors, with cell phones
1. A central dispatch model using police radios (The
Burlington model)
As previously discussed, in Section IVC3, the Burlington County
Prosecutor’s Office provided the Committee with an overview of its proposed
system for handling telephonic search warrants. Under that proposal, police
officers would contact Central Communications via cell phone or police radio,
and Central Communications would first patch in the emergent duty prosecutor,
and then the emergent duty judge. The Burlington County Prosecutor was willing
to purchase equipment, at a cost of between $12,000-13,000 that could
accommodate up to eight parties and handle more than one call at a time. The
recording of the conference would be stored on the Prosecutor’s Office’s server,
and the Prosecutor would provide a copy of the recorded conference to the court
the following day, as well as a transcript (if requested) of that conference for the
court record.
20
The Committee had three significant concerns about the proposal. First,
the Prosecutor’s Office, rather than the Judiciary, would have control and custody
of the official court record. Second, since police officers would use their radios to
facilitate their participation in the application process, the details of the
application, as well as the conversation between the judge, assistant prosecutor
and law enforcement officer, would be susceptible to interception by anyone with
the capability of monitoring police communications. Third, not every county had
a Central Communications dispatch system like Burlington County’s, and
therefore might lack a significant component of the necessary infrastructure.
2. A central dispatch model using police radios coupled
with judicial control of the record
The Committee also considered a proposal that eliminated one of the
problems associated with Burlington’s system, i.e. judicial control of the record.
Under that proposal, the officer would again call dispatch via his or her police
radio, and dispatch would connect the officer to the emergent duty prosecutor’s
cell phone. The prosecutor would then contact the judge via the cell phone’s
conferencing feature. However, rather than law enforcement equipment being
used to record the conference, the judge would record the conference through
one of the Judiciary-controlled methods subsequently discussed in this report.
Although this proposal would address concerns about the custody of the
record, it would not address concerns about the security of the application
process, or the unavailability of a central dispatch infrastructure in some
counties.
21
3. Using encrypted police radios
Since police radio communications can easily be intercepted by a
standard police scanner, the Committee looked into the costs for encrypting
police radios. The Committee learned that the Hamilton Township Police
Department in Atlantic County had recently purchased an encryption system, and
that it cost approximately $9,000 to add an encrypted line to its dispatch system,
plus an additional $446 for each encrypted radio. As the Hamilton Township
Police Department had purchased approximately 100 portable radios, plus an
additional 60 for each police vehicle, the total cost was in the area of $80,000.
Although encryption would address issues regarding the security and privacy of
calls over police radios, the Committee was nevertheless concerned about the
costs, and encryption alone would not solve problems related to lack of
infrastructure in the county
4. Utilizing a private vendor to manage and record the
conference call
The Committee considered using a private vendor to handle requests for
telephonic search warrants. To test the feasibility of this alternative, the
Committee obtained a proposal from a private vendor to manage search warrant
conference calls and the recording of same. The vendor’s system was similar to
that proposed by the Burlington County Prosecutor’s Office in that a police officer
would begin the process by calling dispatch from his or her car radio, and would
then be patched in to the emergent duty prosecutor over a land line. If the
prosecutor agreed that the situation called for the issuance of a telephonic
warrant, the prosecutor would contact dispatch. Dispatch would then bring up
22
the vendor’s application on its computer and click on links for the emergent duty
prosecutor and judge. The vendor’s system would automatically call the
prosecutor and the judge, bridge the police officer into the call, and activate the
recording device. Upon completion of the call, the recording would be uploaded
to a temporary FTP server. The following day, the judge would notify vicinage IT
staff of the search warrants issued the previous night, which would then pull the
recordings from the vendor’s FTP server for storage on the Judiciary’s servers.
This proposal would address concerns about Judiciary custody of the
record, but would not address concerns about the security of application
communications. In addition, the system’s costs would be substantial, and it
would still require the involvement of a local dispatch operation. The
approximate cost for a statewide yearly contract would be approximately
$30,000, with an additional administrator cost of $180 per vicinage and a charge
of 56¢ per minute for each conference. Assuming that the average telephonic
warrant application was completed within no more than 45 minutes, with an ideal
goal of 30 minutes, a typical phone call would cost between $16.80 - $25.20.
5. Using cell phones in combination with a private vendor
to manage and record the conference call
This system is similar to the previous proposal, but instead of the initial
call being placed to dispatch via police radio, the officer would use a duty cell
phone to place a call to the emergent duty prosecutor. If the prosecutor agreed
on the need for a telephonic search warrant, he or she would disconnect the
officer and contact the private vendor. The private vendor would then call each
23
of the parties to initiate the phone conference and would also record the
conference.
Although this system would not have the same issues regarding the
security and privacy of the initial call into dispatch, or judicial control of the
record, it still involved a central dispatch infrastructure and the Committee was
concerned about the costs of the system for the reasons expressed above.
6. Providing direct access to emergent duty prosecutors
and judges through use of pre-programmed cell phones
coupled with a Judiciary-operated recording system
Another proposal the Committee considered was that of providing direct
access to an emergent duty prosecutor and judge through pre-programmed cell
phones, coupled with a Judiciary-operated recording system.
For the reasons expressed herein, the Committee adopted this proposal
and makes the following recommendations:
RECOMMENDATION Pre-programmed cell phones should be utilized
by law enforcement officers, emergent duty
prosecutors and emergent duty judges in seeking,
and fielding, telephonic search warrant
applications.
RECOMMENDATION It is the responsibility of the Judiciary to record
any sworn oral testimony taken in support of a
telephonic or electronic search warrant
application. The preferred manner of recording
such testimony is through the use of the
Judiciary’s CourtSmart system, but a hand-held
recording device would meet minimally
acceptable standards.
The Committee believes that cell phones would provide the quickest and
simplest means of communication for all parties involved in the telephonic search
warrant application process. Most, if not all, cell phones have conference call
24
capability, so a police officer seeking a telephonic search warrant would simply
call a pre-programmed (speed dial) phone number for the emergent duty
assistant prosecutor, and assuming that the prosecutor agreed that the situation
called for a telephonic warrant, either party could then conference in the
emergent duty judge. The parties would communicate directly with each other,
without the need for a central communications dispatcher or a private vendor. In
addition, it is the Committee’s understanding that both Superior Court Judges
and assistant prosecutors are often provided with cell phones for use during
emergent duty, and then pass those phones on to the next emergent duty judge
or prosecutor when their period of emergent duty ends. Therefore, since the
phone numbers would not change, police officers would be able to pre-program
their phones so that both emergent duty judges’ and prosecutor’s phones were
on “speed dial.” Also, unlike communications via police radio, cell phone
conversations are secure, and can not be intercepted without the use of
extremely expensive eavesdropping equipment. Finally, cell phones are
relatively inexpensive, especially when compared to the other options that the
Committee considered. Any added cost for providing cell phones for backup
emergent duty personnel would be relatively small. The costs for each
municipality may vary since each may currently have different contracts with cell
phone providers. Under the current State contract, the charges for cell phones
are $9.99 per month, per phone, with a 14¢ per minute rate for calls outside the
network. The Committee notes that many carriers do not charge a per-minute
rate for calls made to other subscribers within their networks. Therefore, to the
25
extent that local law enforcement could use the same service provider, those per-
minute costs could be eliminated or significantly reduced.
The Committee is sensitive to the fact that the majority of costs under this
recommendation may be borne by local police departments. It should be noted,
however, that the Committee is recommending only that each patrol car be
equipped with a cell phone for use in seeking telephonic search warrants, rather
than each individual patrol officer. As envisioned, the pre-programmed phones
would remain in the patrol cars, for use by the officers assigned to those cars.
This would minimize costs. Furthermore, since the phones would be used for
law enforcement purposes, the cost of purchasing phones could possibly be
covered through the use of forfeiture funds.
Although R. 3:5-3(b) allows judges fielding telephonic search warrant
requests to either record any sworn oral testimony, or to take longhand notes
summarizing what is said, the Committee believes that the better practice is to
record the testimony, and to take longhand notes as a backup. The Committee
considered two alternative ways to record the colloquy between judge,
prosecutor and police officer regarding the issuance of a telephonic search
warrant: (1) adding an additional recording device to the courts’ present
CourtSmart recording infrastructure at the courthouses, or (2) the use of digital
handheld recording devices.
CourtSmart is a server-based central digital recording system for making
the record in courtroom proceedings. Each courtroom is designated a folder on
the CourtSmart servers where that courtroom's recordings are stored. Access to
the record is controlled by the court.
26
The use of CourtSmart would involve establishing a virtual courtroom with
a dedicated phone number for use in search warrant conferences. For each
individual virtual courtroom, there would be a one-time cost of approximately
$15,000. This option would require the judge to put the police officer and the
prosecutor on hold, call a number to initiate a conference call with the recording
device, and then bring back the other parties into the conference. The benefit of
this approach is that it is relatively simple. A concern may exist in the fact that
because CourtSmart can only handle one call at a time, costs for additional
virtual courtrooms could become a factor. Busy vicinages might need two or
more virtual courtrooms to handle the volume of telephonic search warrant
requests within 45 minutes, with an ideal goal of 30 minutes. However, since
access to the virtual courtroom would be through telephone systems,
consideration could also be given to using the CourtSmart systems in
neighboring counties, or even creating a regional or statewide CourtSmart
primary or backup system.
The second option involves the use of small digital recorders that would
connect to cell phones to record the conference. The cost of a quality digital
recorder is approximately $175. Judges would simply connect the digital voice
recorders to their cell phones when needed. The following day, the cell phone
recorders would synch to the courthouse servers via a USB cable to upload the
recorded conferences. While this approach was the least expensive solution and
was also relatively simple, there was some concern that judges would be
responsible for managing the recording at the same time that they were focusing
on the substance of the application.
27
The Committee preferred the CourtSmart option, but would find the hand-
held recording approach to meet minimally acceptable standards if the cost factor
were the predominant consideration for the Judiciary.
28
VII. HUMAN RESOURCE ISSUES
In considering human resources issues, the goal was to ensure that an
adequate number of judges and prosecutors were available and organized to
provide for an effective, independent judicial review of telephonic search warrant
requests within a reasonable period of time, i.e., within no more than 45 minutes,
with an ideal goal of 30 minutes, from the time of the initial call by a police officer.
In considering various ways to achieve that goal, the Committee was mindful of
the Court’s admonition in Pena-Flores that “[t]here may be problems in
developing an effective scheme to obtain warrants electronically or
telephonically, but quick access to a judge should not be one of them.” State v.
Pena-Flores, 198 N.J. at 36, n.8.
In meeting that goal, the Committee needed to answer three critical
questions. First, what would be the expected volume of requests for telephonic
search warrants? Second, what amount of judicial resources would be
necessary to promptly respond to that volume? Third, what was the most
effective way of structuring those judicial resources?
In order to address those questions, the Committee sought to obtain
information on: current judicial resources; current emergent duty policies and
responsibilities; and the expected volume of requests for telephonic warrants.
A. Current Judicial Resources
As of January 1, 2010, there were 408 sitting Superior Court Judges10,
374 of which were trial level judges. Of those 374 trial level judges, 95 were
10
There were 40 judicial vacancies.
29
assigned to the Criminal Division. In addition, there were 343 Municipal Court
Judges, 22 of whom were full-time Municipal Court Judges.
B. Current Emergent Duty Policies and Responsibilities
In order to learn more about how the courts currently respond to emergent
matters, the Committee asked the Administrative Office of the Courts to conduct
a survey of vicinage emergent duty policies and responsibilities. The survey
revealed the following:
• Superior Court emergent duty judges generally handled the following
responsibilities: setting bail pursuant to R. 3:26-2(a); search warrant
requests; civil commitments; juvenile detention matters; applications
for temporary restraining orders; and violations of domestic violence
restraining orders.11
• In thirteen of the fifteen vicinages, there was at least one emergent
duty judge to handle all types of matters. In the other two vicinages,
emergent duty requests were divided by subject matter among the
divisions. In all cases, some provision for a backup was made if the
primary emergent duty judge was unavailable.
• The general, but not universal, practice was that a judge was assigned
to emergent duty for one week at a time.
• In half of the vicinages, emergent duty began after regular court hours.
In the other half, there were also limited emergent duty assignments
during regular court hours.
• A number of vicinages had a “Do Not Disturb” policy, in which judges
were not to be contacted for certain types of matters after certain
hours.
• Generally, Superior Court Judges from all divisions were assigned to
emergent duty. In several vicinages, however, Assignment Judges
and Presiding Judges were excluded from emergent duty.
11
Municipal Court Judges also handle emergent duties, but are not included on the Superior
Court emergent duty schedule.
30
C. Expected Volume of Automobile Searches
In order to ensure that a sufficient number of judges are available to
respond to telephonic search warrant requests, it is necessary to determine the
number of requests that can be anticipated, as well as the times of day that those
requests will likely occur. No statewide data was available for consideration by
the Committee in addressing these issues. The Committee therefore conducted
a survey of law enforcement agencies to attempt to obtain data that would enable
it to make such projections.
The survey requested that each municipal police department provide
information regarding: (1) the number of searches conducted with and without
warrants; (2) the number of automobile searches conducted with and without
warrants; and (3) the percentage of searches that occurred during each of three
time periods (7:00 a.m. - 5:00 p.m., 5:00 p.m. - 11:00 p.m. and 11:00 p.m. - 7:00
a.m.). The Committee sought to document the total number of searches, not
simply automobile searches, because anticipated telephonic search warrant
requests would not necessarily be limited to automobile searches. Because the
Committee had received anecdotal information that automobile searches had
dropped significantly after the Court’s decision in Pena-Flores, it requested that
information for two different time periods: (1) an average week prior to February
25, 2009 - the date that the Court decided Pena-Flores;12 and (2) the week of
June 14-20, 2009 – which was deemed to be a representative week after Pena-
Flores.13 The survey also asked whether law enforcement agencies anticipated
12
We will refer to these searches in this report as pre-Pena-Flores.
13
We will refer to these searches in this report as post-Pena-Flores.
31
that they would conduct more searches if procedures were in place for
expeditiously obtaining telephonic search warrants. The survey was circulated to
all local police departments through their county prosecutors, and to the State
Police through their representative on the Committee.
Despite multiple requests, the response to the survey was spotty. The
respondents included 102 municipal police departments from nine counties, three
college law enforcement agencies, four county level law enforcement agencies,
and the New Jersey State Police, which provide police coverage in 69
municipalities, and also patrol major roadways, including the Parkway and
Turnpike. The responses revealed the following:
• Pre-Pena-Flores, the law enforcement agencies that responded to
the survey conducted 656 automobile searches during an average
week.14 Post-Pena-Flores, those same departments conducted
304 automobile searches in a week - a decrease of 54%.
• Pre-Pena-Flores, responding law enforcement agencies estimated
that approximately 73% of searches occurred outside of work
hours. That percentage essentially remained the same post-Pena-
Flores, as responding departments estimated that approximately
68% of searches occurred outside of work hours.
• 83% of responding law enforcement agencies believed that the
number of searches would increase if procedures were in place for
obtaining telephonic or electronic search warrants.
The responses from municipal police departments, along with those of the
New Jersey State Police, represented a response rate of approximately 30% of
statewide municipalities. The Committee would have benefited from more
complete data from which it could quantify present practices. However, despite
the Committee’s best efforts, none could be obtained. The Committee therefore
14
Note: this includes searches with and without a warrant. The data in our survey reflected that
93% of searches were warrantless searches.
32
sought the assistance of the Administrative Office of the Courts Quantitative
Research Unit (AOC) in an attempt to determine whether the limited survey data
could be used to project an estimate of the number of automobile searches that
might be expected annually throughout the State.
The AOC developed three methods in an attempt to arrive at an estimate.
Those three methods, which are described in Appendix A, yielded estimates that
were very close numerically. The average of those three methods was used to
estimate, on an annual basis, the statewide number of automobile searches that
would be expected at both pre- and post-Pena-Flores rates.
Based on the data received, it was estimated that there would have been
92,272 automobile searches annually pre-Pena-Flores and 47,045 automobile
searches annually post-Pena-Flores. These figures demonstrate a significant
decrease in automobile searches following the decision in Pena-Flores. One
possible explanation for the significant decrease in the number of automobile
searches following Pena-Flores could be the effect of the Court’s decision in
Pena-Flores itself. In the context of an automobile search, there are three main
rationales that law enforcement uses to justify a warrantless search: (1) consent;
(2) plain view; and (3) the combination of probable cause and exigent
circumstances. While there is evidence that the number of consent searches has
increased after Pena-Flores, it was the third rationale that was most directly
impacted by the Court’s decision. Therefore, an assumption could be made that
a significant part of the drop-off in the number of automobile searches could be
attributed to the impact of that decision. If that assumption has any merit, then
an estimate of the number of automobile searches that could result in telephonic
33
search warrant applications might be derived by subtracting the estimated
number of post-Pena-Flores automobile searches from the number of pre-Pena-
Flores automobile searches. Using that methodology, and the AOC estimates,
the Committee projected that the size of the statewide post-Pena-Flores
decrease in searches was 45,227. It was assumed that a significant part of this
estimated decrease would have been exigent circumstance searches. Based on
the Committee’s survey, approximately 68-73% of searches occur after court
hours. Using a ratio of 70%, the Committee projected that the total number of
searches after court hours would be approximately 31,658. This figure could
therefore be used as an estimate for the number of emergent duty telephonic
search warrant requests based upon allegations of probable cause and exigent
circumstances.
The Committee was not confident, however, that its estimates were
reliable enough to propose significant changes at this point to the existing
emergent duty system. The Committee had numerous concerns as to the
reliability of its projections. The data the Committee used represented only two
weeks out of the year, and the Committee questioned whether those weeks were
accurately representative of data over a sustained period. The Committee
received data from only 30% of all law enforcement agencies, and had serious
concerns as to whether the data received was representative of the work of law
enforcement agencies over the entire State. Most large municipalities, for
example, did not respond to the survey. To illustrate our concern, it is quite a
leap to take a small sample (656 automobile searches) and extrapolate that out
to 92,272 automobile searches yearly statewide. The Committee also
34
recognizes that its assumption that the drop-off in the number of automobile
searches was due to a drop-off in exigent circumstance searches is not the only
possible explanation for this occurrence. Furthermore, even if a significant
portion of the estimated 31,658 cases were exigent circumstance cases, it is not
clear that law enforcement officers would, in all cases, choose to apply for a
warrant. In some cases an officer might be confident enough in his or her
judgment about the presence of exigent circumstances that the officer would
conduct the search without a warrant and be prepared to offer justification at a
hearing later on a motion to suppress.
Because of these and other uncertainties inherent in these estimates, the
Committee felt it should adopt a conservative approach until more actual
experience could be gained. The Committee therefore felt that the most
responsible approach was to use the current emergent duty structure, with some
modifications. Although the Committee has adopted a conservative approach
due to its uncertainty about the estimated figure of 31,658 cases, the Committee
nevertheless views that estimated figure with great concern. Should the volume
of telephonic search warrant requests reach that level, it would not appear that
the current system could adequately respond. Therefore, the Committee felt that
it was imperative to monitor the volume of telephonic search warrant requests
very closely in order to allow for rapid implementation of an alternative system if
need be. Should the actual number of telephonic warrant applications be far
greater than can be adequately handled by the current structure, the Committee
has also identified a number of alternative systems that could be used to address
that greater volume of requests.
35
D. Models Considered for Providing Judicial Resources
The Committee considered several models to respond to applications for
telephonic search warrants. The first two of these models, (a) and (b), have
been rejected for the reasons set forth below. The other three are included
among the Committee’s recommendations.
(a) use of selected pilot programs to allow for greater
development of data on the volume of cases;
(b) exclusive use of Criminal Division Judges to respond
to applications;
(c) using Criminal Division Judges during regular court
hours to respond to applications;
(d) using the current emergent duty schedule to respond
to applications after court hours; and
(e) alternatives to enhance or replace the current
emergent duty system:
(1) using Municipal Court Judges to respond to
applications;
(2) creation of a regional call system to respond to
applications;
(3) creation of a statewide call system to respond to
applications;
(4) use of special masters or magistrates.
1. Use of selected pilot programs to allow for greater
development of data on the volume of cases
Given the extremely wide range projected for the possible number of
telephonic search warrant requests, and the Committee’s subsequent lack of
confidence in those projections, the Committee considered whether it would be
better to create several pilot programs in order to develop more concrete
numbers. The concept would establish a telephonic system in 5-6 counties, and
monitor how the system worked before going statewide. The pilot program would
last for three, or possibly six, months, after which the Committee would be able to
more confidently assess the number of judges that would be necessary to field
36
telephonic warrant requests. Eventually, however, the Committee rejected this
concept, because it felt that in light of the Court’s decision, and existing law
enforcement responsibilities, there was a need to make emergent access to
judges available throughout the State, and to do so as soon as possible.
2. Exclusive use of Criminal Division Judges to respond to
applications
The Committee also considered whether telephonic search warrant
requests should be handled exclusively by Criminal Division Judges. The
Committee believed that this would be impractical due to the potential volume of
applications, the limited number of Criminal Division Judges, and the need to
create separate emergent duty lists in most vicinages.
RECOMMENDATION During regular court hours, Criminal Division
Judges should respond to requests for telephonic
search warrants
Currently, Criminal Division Judges handle search warrant requests during
regular business hours. The Committee sees no reason to change this practice.
However, to ensure that these requests are handled in a timely manner, i.e.,
within no more than 45 minutes, with an ideal goal of 30 minutes, there will need
to be a point-of-contact for law enforcement. The Committee recommends that
the contact person be the Criminal Division Manager, or his or her designee. It
will be the responsibility of the Criminal Division Manager to find an available
Criminal Division Judge to handle these requests immediately upon receiving the
request from law enforcement.
RECOMMENDATION The present Superior Court emergent duty
structure should be used to respond to requests
for search warrants made via telephonic means
after normal business hours. However, the
37
current schedule should be amended to: (1)
ensure that each vicinage specifically designates
at least one judge as the backup emergent duty
judge; and (2) ensure that any vicinage “Do Not
Disturb” policies do not place limits on telephonic
search warrant applications.
The current Superior Court emergent duty system is well-established, and
by all accounts, it is working well. The Committee therefore agreed that the
current emergent duty schedule should be used unless and until experience
provided sufficient reason to change it. However, it is imperative that every
vicinage specifically designate a backup emergent duty judge, and to the extent
that any vicinages have “Do Not Disturb” policies, those policies must be
changed to provide for immediate access to a judge for telephonic search
warrant applications. Simply put, there must be a judge available at all times to
quickly respond to search warrant applications.
RECOMMENDATION The county prosecutors should ensure that a
sufficient number of emergent duty prosecutors
are available to handle requests from law
enforcement for telephonic search warrants. As
such, there should be at least one emergent duty
prosecutor, and a backup emergent duty
prosecutor, in each county.
In order to meet the Committee’s goal of completing telephonic search
warrant applications within no more than 45 minutes, with an ideal goal of 30
minutes, the Committee believes that it is just as important to ensure that a
sufficient number of prosecutors are available as it is to ensure that there are a
sufficient number of judges. As previously noted, Attorney General Directive No.
2002-2 requires that a law enforcement officer receive approval from a
designated attorney before requesting a search warrant. It would not do the law
38
enforcement officer seeking the warrant any good, for example, if sufficient
numbers of judges were available to field those requests, but a police officer
could not reach an emergent duty prosecutor to assist in preparing the
application and ensuring that the legal and procedural requirements were met.
As a result, in order to ensure that there are a sufficient number of emergent duty
prosecutors available to handle telephonic warrant requests, the Committee
respectfully recommends that there be at least one emergent duty prosecutor,
and a backup emergent duty prosecutor, in each county.
RECOMMENDATION Within a month of the Supreme Court’s approval
of the recommendations contained in this report,
each Assignment Judge, in consultation with the
County Prosecutor, should develop an
implementation plan and submit it to the
Administrative Director of the Courts.
In order to ensure that any recommendations approved by the Supreme
Court are implemented in a timely manner, the Committee recommends that the
Assignment Judge in each vicinage convene a meeting with his or her County
Prosecutor to develop an implementation plan. The Committee recognizes that
some of the recommendations may take longer than others to implement, and
that some, such as the purchase of cell phones, may not be implemented by
local police departments. Nevertheless, the Committee believes that it is
important to establish a timeframe within which the recommendations will be
implemented. The Committee also believes that it is important to effect
implementation consistently on a statewide basis, and therefore recommends
that the implementation plans be submitted to the Administrative Director of the
Courts.
39
RECOMMENDATION The vicinages and the Administrative Office of the
Courts should closely monitor the volume of
telephonic search warrant requests in order to
allow for rapid implementation of an alternative
system if the volume of searches is dramatically
greater than the current system can address.
The Committee recognizes that the emergent duty responsibilities of
Superior Court Judges have increased considerably over the years, and it is
probable that with the addition of telephonic search warrants, those
responsibilities will increase even more. The survey conducted by the
Committee suggests that the majority of telephonic search warrant applications
will occur outside of regular court hours. The Committee is concerned that if the
number of after-hours telephonic search warrant requests is too great, it could
overwhelm the current system and result in an inability to provide timely
responses to such applications. If the emergent duty judge were to handle
numerous applications during late evening hours, it could also affect the judge’s
ability to function during regular working hours. The Judiciary needs to be in
position to quickly address this problem should it occur. Therefore, the
Committee recommends that the vicinages closely monitor the number of those
requests, and during the first six months of implementation, file reports with the
Administrative Office of the Courts on a weekly basis.
RECOMMENDATION If the number of requests for telephonic search
warrants exceeds the ability of the current
emergent duty system to effectively respond to
them, another system should be implemented as
quickly as possible.
The selection of an alternate system will depend on the volume of
requests and the location or locations where such occur. Problems that could
40
develop might be limited to individual counties, certain regions (e.g., Turnpike or
Parkway counties), or be statewide in nature. For these reasons, the Committee
recommends a variety of options to be considered for implementation, with
selection of the appropriate option depending upon the nature of any problems
encountered. The options set forth below are not listed in order of preference.
Which option, or options, to use will depend on what the situation requires
RECOMMENDATION Options to enhance or replace the current
emergent duty system
1. Using Municipal Court Judges to respond to
applications
If there are increases in the volume of telephonic search warrant requests,
those increases may not be uniform across the State, or may occur in only a few
counties. If that is the case, the use of select Municipal Court Judges to augment
Superior Court emergent duty judges in responding to telephonic search warrant
applications should be considered. If this occurs, the Committee recommends
that the Assignment Judge, after consultation with his or her Municipal Presiding
Judge, prepare a list of Municipal Court Judges that the Chief Justice could
authorize to handle these applications. The Committee notes that authorizing
Municipal Court Judges to handle telephonic search warrant applications would
require a change to R. 3:5-3(b), as noted later in this report.
Certain members of the Committee did not agree with the
recommendation that the Court authorize Municipal Court Judges to respond to
telephonic search warrant applications. The Committee sought to address this
concern by recommending that only carefully selected Municipal Court Judges be
authorized to respond to telephonic applications for search warrants. Despite the
41
Committee’s proposed limitation on which Municipal Court Judges would be
authorized to hear those applications, those members believed that only Superior
Court Judges should hear applications for telephonic search warrants. They
cited the 1984 Report of the Supreme Court Committee on Criminal Practice and
felt that the rationale for that decision, i.e. the increased experience of Superior
Court Judges in making determinations of exigency and probable cause, has not
changed. They were also concerned that Municipal Court Judges do not have
the experience and training that Superior Court Judges possess.
2. Creation of a regional emergent duty call system
to respond to applications
It is possible that dramatic increases in the number of telephonic search
warrant requests may occur in some parts of the State, but not others. In that
instance, it may be useful for neighboring vicinages to combine judicial resources
and create a regional system for emergent duty purposes. Under such a system,
judges would likely be required to field a greater number of calls when assigned
to emergent duty, but they would be assigned to emergent duty less frequently.
As a result, the work load would be more evenly distributed. This may require
shuffling the emergent duty judge’s schedule so that he or she does not have a
regular calendar during the period that he or she is on regional emergent duty.
3. Creation of a statewide emergent duty call system
to respond to applications
If the volume of telephonic search warrant applications increases too
dramatically across the State, it may be that even a regional system would not
work. In that instance, it may be necessary to create a statewide emergent duty
call system. Under this system, the Judiciary would establish a central call-in
42
number, and requests for telephonic search warrants would then be directed to
judges who could be located anywhere throughout the State. Such a system
could also include Recall Judges and Municipal Court Judges. To the extent that
sitting Superior Court Judges participated in this system, the volume of calls
would almost certainly dictate that they be excused from other assignments when
assigned to emergent duty. While this proposal addresses only telephonic
search warrant requests, it could be considered as a 24/7 model for responding
to all types of ever-growing emergent duty requests (a form of Judicial
emergency room).
4. Use of special masters or magistrates
If the Committee was designing a system on a clean slate, it would design
one in which certain types of criminal matters, such as telephonic search warrant
requests, were not handled by a judge, but by other highly-qualified Judiciary
employees – such as special masters or magistrates. The Committee notes that
other special judicial employees already perform a number of important judicial
functions, such as issuing arrest warrants or setting bail. See R. 3:3-1(a), (b) and
3:26-2(a).
This is not the first time that the use of magistrates or special masters has
been proposed for criminal matters. In 1989, in response to a dramatic increase
in the number of criminal cases caused by the “war on drugs,” the Supreme
Court created a special committee often referred to as the Pashman-Belsole
Committee. In January 1991, that committee issued a report entitled Report of
the Special Committee to Assess Criminal Division Needs, in which it
recommended developing and experimenting with new approaches for the
43
management of criminal calendars - such as the use of masters or magistrates to
deal with ancillary proceedings. See Pashman-Belsole Report at page 22.
It should also be noted that the federal court system employs magistrates
for a variety of tasks. In the federal system, magistrates are statutorily permitted
to handle a wide range of judicial functions, including sentencing persons
convicted of minor offenses; administering oaths and affirmations; issuing orders
concerning the release or detention of persons pending trial; hearing, with certain
exceptions, any pretrial matter pending before the court; and taking
acknowledgments, affidavits, and depositions. See 28 U.S.C.S. § 636. The
Committee therefore suggests that consideration be given to using magistrates,
or special masters, to field telephonic search warrant requests if the number of
applications threatens to overwhelm current judicial resources.
Some of the same members of the Committee who dissented from the
Committee’s recommendation regarding using Municipal Court Judges to
respond to telephonic search warrant applications also objected to the use of
special masters and magistrates for essentially the same reasons.
44
VIII. ADMINISTRATIVE ISSUES
A. Goals
In addressing administrative issues, the goals were to ensure that: (1)
applicable Court Rules were amended so that the provisions governing
telephonic search warrants were consistent with the Court’s decision in Pena-
Flores; (2) procedures implemented for handling telephonic search warrant
requests were applied in a consistent manner throughout the State; and (3) those
procedures be monitored in order to determine whether they were working as the
Court intended. Consistent with those goals, the Committee considered a
number of possible amendments to the Court Rules; the creation of training
programs for judges and law enforcement personnel handling telephonic warrant
requests; the creation of forms for use during the application process; and ways
in which to monitor the effectiveness of the procedures that are implemented.
B. Recommendations
To meet the aforesaid goals, the Committee makes the following
recommendations:
RECOMMENDATION R. 3:5-3(b) should be amended to remove the
references to “exigent circumstances,” and to
more closely follow the language contained in R.
3:5-3(a) regarding applications for in-person
warrants.
In Pena-Flores, the Court announced that it intended to amend R. 3:5-3(b)
“to underscore that an officer may resort to electronic or telephonic means
without the need to prove exigency.” State v. Pena-Flores, 198 N.J. at 35. The
Court also announced that R. 3:5-3(b) would be amended “to clarify the parity
between the various methods for obtaining a warrant.” Ibid. In order to further
45
the Court’s explicit intent, the Committee therefore recommends that R. 3:5-3(b)
be amended to remove all references to “exigent circumstances.” The
Committee also recommends that R. 3:5-3(b) be amended to mirror the language
contained in R. 3:5-3(a), which concerns applications for in-person search
warrants. The Committee recommends the following amendments to R. 3:5-3(b):
3:5-3. Issuance and Contents
(a) . . . No Change.
(b) A Superior Court judge may issue a search warrant upon sworn oral
testimony of an applicant who is not physically present. Such sworn oral
testimony may be communicated to the judge by telephone, radio or other means
of electronic communication. The judge shall contemporaneously record such
sworn oral testimony by means of a tape-recording device or stenographic
machine if such are available; otherwise, adequate longhand notes summarizing
what is said shall be made by the judge. Subsequent to taking the oath, the
applicant must identify himself or herself, specify the purpose of the request and
disclose the basis of his or her information. This sworn testimony shall be
deemed to be an affidavit for the purposes of issuance of a search warrant. A
warrant may issue if the judge is satisfied that [exigent circumstances exist
sufficient to excuse the failure to obtain a written warrant, and that] sufficient
grounds for granting the application [have been shown] exist or that there is
probable cause to believe they exist. Upon approval, the judge shall memorialize
the specific terms of the authorization to search and shall direct the applicant to
enter this authorization verbatim on a form, or other appropriate paper,
designated the duplicate original search warrant. This warrant shall be deemed
46
a search warrant for the purpose of R. 3:5. The judge shall direct the applicant to
print the judge's name on the warrant. [The judge shall also contemporaneously
record factual determinations as to exigent circumstances.] If a recording is
made, the judge shall direct that the testimony be transcribed as soon as
practicable. This transcribed record shall be certified by the judge. The judge
shall promptly issue a written confirmatory search warrant and shall enter
thereon the exact time of issuance of the duplicate original warrant. In all other
respects, the method of issuance and contents of the warrant shall be that
required by subsection (a) of this rule.
Note: Source-R.R. 3:2A-3, 3:2A-4 (second sentence); former rule redesignated
paragraph (a) and paragraph (b) adopted July 26, 1984 to be effective
September 10, 1984; paragraphs (a) and (b) amended July 13, 1994 to be
effective September 1, 1994[.]; paragraph (b) amended to be effective .
RECOMMENDATION A duplicate original warrant form should be
promulgated for use throughout the State.
As previously noted, the Burlington County Prosecutor’s Office created a
duplicate original warrant form, which was to be completed when police officers
sought a telephonic search warrant. (See Section IVC3). Under the Burlington
Prosecutor’s proposed system, police officers would have carbonless pads in
their cars with blank duplicate original search warrant forms. Each form would fit
on a single legal-sized page. When an officer sought a telephonic search
warrant, the duplicate original search warrant form would be completed under a
prosecutor’s telephonic supervision and would then be reviewed with the judge.
If the reviewing judge decided to issue a search warrant, the judge would
authorize the officer to sign the judge’s name on the duplicate original warrant
form; the inventory of the search would also be completed on the duplicate
47
original form; and the form would be delivered to the court on the following day.
The duplicate original form would also contain a space for the judge to determine
whether, pursuant to R. 3:5-3(b), the duplicate original would also serve as a
written confirmatory warrant. This would eliminate the need for the court to
prepare a separate form. A carbonless copy of the duplicate original form would
be provided to the driver of the car as required by R. 3:5-5(a). There would be
four carbonless copies of the form: the original would be filed with the Court; a
second copy would be for the county prosecutor; a third copy would be for the
officer; and a fourth copy would be given to the driver.
Therefore, in order to encourage consistent procedures regarding the
handling of telephonic search warrant applications, the Committee recommends
that a standard duplicate original warrant form be used throughout the State.
The proposed form is included in Appendix B.
RECOMMENDATION A worksheet for judges to record the details of
telephonic search warrant applications should be
promulgated for use throughout the State.
In order to further promote consistency in the Judiciary’s response to
telephonic search warrant applications, the Committee believes that judges
should use a worksheet to record the details of those applications. Completing
the worksheet would not only ensure that the judge met all of the procedural and
legal requirements pertaining to telephonic search warrants, it would also serve
as a convenient backup if the colloquy between judge, prosecutor and police
officer was not recorded due to technical problems or human error. After a
reasonable amount of time has passed, and judges gain more experience in
responding to telephonic search warrant applications, it may be that the
48
worksheets would no longer be necessary. Initially, however, the Committee
believes that the form should be promulgated for use throughout the State. The
Bergen County emergent duty judges currently use a worksheet for telephonic
warrant applications, and the Committee recommends that it be promulgated for
use on a statewide basis. The form is included in Appendix C.
RECOMMENDATION R. 3:5-5(b) should be amended to: (1) delete the
requirement that the applicant sign the transcript
of any oral testimony taken in connection with a
telephonic search warrant application, and (2)
specify that the prosecutor shall have a transcript
prepared, and shall thereafter review the
transcript, and any discrepancies must be
brought to the attention of the judge who issued
the warrant within 30 days of the prosecutor’s
receipt of the transcript.
The Committee became concerned that if the use of telephonic search
warrants increased dramatically, R. 3:5-5(b)’s requirement that the applicant sign
the transcript of any oral testimony taken during the warrant application would
strain police resources by pulling officers away from their primary duties. The
Committee also recognized that this would become an even more serious
problem if the current county-based emergent duty practice moved to a regional
or statewide practice, because officers would then have to travel to another
county to sign the transcript. The Committee felt that the better procedure would
be to simply delete the requirement that the transcript be signed. The Committee
believes that this would alleviate any concerns about pulling police officers away
from their duties.
The Committee also considered whose responsibility it should be to
prepare the transcript of any oral testimony taken in connection with a telephonic
49
search warrant application. Currently, pursuant to R. 3:5-3(b), the transcript is
prepared by the County Prosecutor’s office and submitted to the issuing judge for
certification. The Committee believes that this practice should continue, and that
the Court Rules should clarify that the preparation of the transcript is the
prosecutor’s responsibility. In addition, as prosecutors reportedly felt that it was
extremely important to verify the transcript promptly in order to clear up any
accuracy issues prior to discovery, the Committee also recommends that R. 3:5-
5(b) be amended to specify that the prosecutor shall have a transcript prepared,
and shall thereafter review the transcript, and any discrepancies must be brought
to the attention of the judge who issued the warrant within 30 days of the
prosecutor’s receipt of the transcript.
The Committee considered whether, given that a disk containing the
conversation between the judge, prosecutor and law enforcement officer would
be made, the requirement that a transcript be prepared should be eliminated.
While the Committee could not reach a consensus on this issue, it believes that it
is an area that deserves further study.
The Committee recommends the following amendments to R. 3:5-5(b):
3:5-5. Execution and return with inventory.
(a) . . . No Change.
(b) If a duplicate original search warrant has been executed, the person who
executed the warrant shall enter the exact time of its execution on its face. If a
tape or stenographic record of the oral testimony has been made, the judge shall
require the [applicant to sign a transcript of that record] prosecutor to prepare
50
and review a transcript of that testimony. Any discrepancies must be brought to
the attention of the judge who issued the warrant within 30 days of the
prosecutor’s receipt of the transcript. In all other respects, execution and return
of the duplicate original search warrant shall be that required by paragraph (a) of
this rule.
Note: Source-R.R. 3:2A-4; former rule redesignated as paragraph (a) and
paragraph (b) adopted July 26, 1984 to be effective September 10, 1984[.];
paragraph (b) amended to be effective .
RECOMMENDATION R. 3:5-5(a) should be amended to allow for the
inventory filing and return to be accomplished via
fax or other electronic means.
The Committee believes that R. 3:5-5(a)’s current requirement that police
officers appear promptly and personally for the inventory filing and return
unnecessarily takes those officers away from their primary duties. The
Committee also reasoned that if the search warrant itself could now be obtained
through telephonic means, then that same flexibility should also be available for
the return and inventory. As a result, the Committee recommends that R. 3:5-
5(a) be amended to allow for the inventory filing and return to be accomplished
personally, or via fax or other electronic means.
The Committee recommends the following amendment to R. 3:5-5(a):
3:5-5. Execution and return with inventory.
(a) A search warrant may be executed by any law enforcement officer,
including the Attorney General or county prosecutor or sheriff or members of their
staffs. The warrant must be executed within 10 days after its issuance and within
the hours fixed therein by the judge issuing it, unless for good cause shown the
51
warrant provides for its execution at any time of day or night. The officer taking
property under the warrant shall give to the person from whom or from whose
premises the property is taken a copy of the warrant and a receipt for the
property taken or shall leave the copy and receipt at the place from which the
property is taken. The return shall be made promptly and shall be accompanied
by a written inventory of any property taken. The return and written inventory of
any property taken may be accomplished by personal appearance before the
issuing judge or by electronic facsimile or other electronic means. The inventory
shall be made and verified by the officer executing the warrant in the presence of
the person from whom or from whose premises the property is taken or, if such
person is not present, in the presence of some other person. The judge shall
upon request deliver a copy of the inventory to the person from whom or from
whose premises the property was taken and to the applicant for the warrant.
(b) . . . No Change.
Note: Source-R.R. 3:2A-4; former rule redesignated as paragraph (a) and
paragraph (b) adopted July 26, 1984 to be effective September 10, 1984[.];
paragraph (a) amended to be effective .
RECOMMENDATION R. 3:5-7(g) should be amended to clarify that in
the absence of bad faith, a telephonically or
electronically authorized search warrant should
not be rendered invalid due to technical
difficulties or errors in recording the application,
or by errors in completing the duplicate original
warrant form.
The Committee recognized that, due to technical difficulties or human
error, a number of things could go wrong during the telephonic search warrant
application process. The Committee agreed, however, that those technical
difficulties or human errors should not necessarily result in the ensuing search
52
being rendered invalid and the evidence being suppressed. This is the same
general philosophy underlying the exceptions for electronic warrants contained in
R. 3:17. As a result, the Committee recommends that R. 3:5-7(g) be amended to
specify that unless it is apparent that law enforcement or an emergent duty
prosecutor acted in bad faith, an otherwise valid search shall not be rendered
invalid simply because the colloquy between the parties was not recorded, either
due to technical difficulties or human error, or because the duplicate original
warrant form was filled out improperly. The Committee recommends the
following amendment to R. 3:5-7(g):
3:5-7. Motion to Suppress Evidence and for Return of Property
(a) . . . No Change.
(b) . . . No Change.
(c) . . . No Change.
(d) . . . No Change.
(e) . . . No Change.
(f) . . . No Change.
(g) Effect of Irregularity in Warrant. In the absence of bad faith, no search or
seizure made with a search warrant, including a search or seizure made with a
telephonically or electronically authorized search warrant, shall be deemed
unlawful because of technical insufficiencies or irregularities in the warrant or in
the papers or proceedings to obtain it, or in its execution.
Note: Source-R.R. 3:2A-6(a)(b). Paragraph (a) amended, paragraphs (b), (c), (d)
adopted and former paragraphs (b), (c), (d) redesignated as (e), (f), (g)
respectively January 28, 1977 to be effective immediately; paragraphs (a) and (c)
amended July 16, 1979 to be effective September 10, 1979; paragraph (a)
amended July 16, 1981 to be effective September 14, 1981; paragraph (a)
53
amended June 9, 1989 to be effective June 19, 1989; paragraph (a) amended
July 13, 1994 to be effective January 1, 1995; paragraph (a) amended January 5,
1998 to be effective February 1, 1998[.]; paragraph (g) amended to be
effective .
RECOMMENDATION The Administrative Office of the Courts, in
conjunction with the Criminal Division Presiding
Judges, should develop a training program for
judges handling telephonic search warrants. In
addition, the Office of the Attorney General, in
conjunction with the County Prosecutors and the
New Jersey State Police, should develop a similar
training program for law enforcement.
In order to ensure that telephonic search warrant requests are handled in
a consistent manner throughout the State, the Committee agreed that both
judges and law enforcement should be provided with training on how to handle
those requests. Consequently, the Committee recommends that both the
Judiciary and law enforcement develop appropriate training programs for their
respective members regarding the proper handling of telephonic search warrants
and that those programs be consistent with the procedures that are eventually
approved by the Court.
RECOMMENDATION The Administrative Office of the Courts, in
cooperation with the Office of the Attorney
General, should develop specific procedures
regarding the collection of data to closely monitor
the handling of telephonic search warrants.
As previously discussed in Section V, important safety concerns involving
police officers, drivers, and passengers dictate that applications for telephonic
search warrants should be completed as quickly as possible; specifically, within
no more than 45 minutes, with an ideal goal of 30 minutes, from the officer’s
initial call. Those same safety and resource concerns also dictate that the
procedures created to handle telephonic warrants should be closely monitored in
54
order to determine whether they are working effectively; and if there are delays,
to find out where the delay is occurring. As a result, the Committee agreed that
data should be collected regarding (1) the volume of telephonic search warrant
applications; (2) the number of telephonic applications granted and denied; (3)
the amount of time that elapsed before a ruling was made; and (4) whether
contraband was recovered.
The Committee recognized that in order to simplify the collection of the
above information, it would be preferable to have that information in one place.
The Committee therefore amended the duplicate original warrant form to include
spaces for both the starting time and the time that the judge joined the call. The
Committee believed that including both times would enable monitors to
determine whether any delays in the application process were occurring on the
law enforcement or judicial side. The Committee also recommended that the
form include spaces for whether the application was granted or denied.
Given the important safety concerns associated with roadside automobile
stops and the speedy completion of telephonic search warrant applications, the
Committee believes that it is imperative that sufficient data is collected to allow
Judiciary and law enforcement decision-makers to act quickly if the adopted
procedures are not working effectively. The Committee is also aware that past
efforts to monitor new procedures were frustrated by an inability to collect
sufficient information in a timely manner. The Committee therefore recommends
that the Administrative Office of the Courts, in cooperation with the Office of the
Attorney General, develop specific procedures to ensure that the completed
duplicate warrant forms are collected and forwarded to both agencies on a
55
regular basis. It should be noted that a similar process was proposed in the
Report of the Supreme Court Special Committee on Recordation of Custodial
Interrogations. See Cook Committee Report at page 52. This recommendation
was approved by the Court and implemented soon thereafter.
RECOMMENDATION If Municipal Court Judges are eventually enlisted
to respond to telephonic search warrant
applications, reviewing courts should give the
probable cause determinations made by
Municipal Court Judges the same “substantial
deference” given to similar determinations made
by Superior Court Judges.
Although it is not currently recommended that Municipal Court Judges be
authorized to respond to telephonic search warrant applications, the Committee
recognizes that it may be necessary do so in the future. Should that possibility
become a reality, the Committee believes that any probable cause
determinations made by Municipal Court Judges during the course of those
applications should be given the same “substantial deference” by reviewing
courts as similar determinations made by their Superior Court colleagues. The
Committee believes that to do otherwise would discourage prosecutors and
police officers from seeking telephonic warrants from Municipal Court Judges.
The members of the Committee that were opposed to Municipal Court
Judges hearing telephonic applications for search warrants were also opposed to
this recommendation. They believe that if Municipal Court Judges hear these
applications, their decisions should be reviewed on appeal using the same legal
standard currently applied to other decisions of Municipal Court Judges. See R.
3:23-8.
56
RECOMMENDATION If Municipal Court Judges are eventually enlisted
to respond to telephonic search warrant
applications, R. 3:5-3(b) should be amended to
explicitly grant Municipal Court Judges that
authority.
As noted previously, in Section VIID, increases in the volume of telephonic
search warrant requests could necessitate the use of select Municipal Court
Judges to augment Superior Court emergent duty judges in responding to
telephonic search warrant applications. The Committee envisions that the
Assignment Judge, after consultation with his or her Municipal Presiding Judge,
would prepare a list of Municipal Court Judges that the Chief Justice could
authorize to handle these applications. If this occurs, the Committee
recommends that R. 3:5-3(b) be amended to specify that select Municipal Court
Judges would also be authorized to respond to telephonic search warrant
applications. Currently, only Superior Court Judges are authorized to respond to
telephonic search warrant requests. The Committee recommends that R. 3:5-
3(b) be amended as follows:15
3:5-3. Issuance and Contents
(a) . . . No Change.
(b) A Superior Court judge, or a Municipal Court judge designated by the
Chief Justice, may issue a search warrant upon sworn oral testimony of an
applicant who is not physically present. Such sworn oral testimony may be
communicated to the judge by telephone, radio or other means of electronic
communication. The judge shall contemporaneously record such sworn oral
15
Note that the Committee has previously recommended a change to this rule. See pgs. 45-47. Those
changes are also included here for ease of reference.
57
58
testimony by means of a tape-recording device or stenographic machine if such
are available; otherwise, adequate longhand notes summarizing what is said
shall be made by the judge. Subsequent to taking the oath, the applicant must
identify himself or herself, specify the purpose of the request and disclose the
basis of his or her information. This sworn testimony shall be deemed to be an
affidavit for the purposes of issuance of a search warrant. A warrant may issue if
the judge is satisfied that [exigent circumstances exist sufficient to excuse the
failure to obtain a written warrant, and that] sufficient grounds for granting the
application [have been shown] exist or that there is probable cause to believe
they exist. Upon approval, the judge shall memorialize the specific terms of the
authorization to search and shall direct the applicant to enter this authorization
verbatim on a form, or other appropriate paper, designated the duplicate original
search warrant. This warrant shall be deemed a search warrant for the purpose
of R. 3:5. The judge shall direct the applicant to print the judge's name on the
warrant. [The judge shall also contemporaneously record factual determinations
as to exigent circumstances.] If a recording is made, the judge shall direct that
the testimony be transcribed as soon as practicable. This transcribed record
shall be certified by the judge. The judge shall promptly issue a written
confirmatory search warrant and shall enter thereon the exact time of issuance of
the duplicate original warrant. In all other respects, the method of issuance and
contents of the warrant shall be that required by subsection (a) of this rule.
Note: Source-R.R. 3:2A-3, 3:2A-4 (second sentence); former rule redesignated
paragraph (a) and paragraph (b) adopted July 26, 1984 to be effective
September 10, 1984; paragraphs (a) and (b) amended July 13, 1994 to be
effective September 1, 1994[.]; paragraph (b) amended to be effective .
APPENDIX A
Estimate Based on Population
One method the Committee decided to utilize was one based on
population.1 The theory was that since we knew that we had 445 automobile
searches (35 with a warrant and 410 warrantless) from 102 municipalities2 during
a one week period, we could arrive at an estimate for all municipalities by
assuming that the ratio of searches to population for the 102 municipalities was
the same ratio for the remaining municipalities. Combining this estimate of all
municipalities with the state police searches and other searches provided a one
week estimate that could be multiplied by 52 weeks.
Estimate Based on Index Crimes
Another method the Committee utilized to arrive at an estimate was based
on the number of Index offenses. The theory was that since we knew that we
had 445 automobile searches from 102 municipalities during a one week period
we could arrive at an estimate for all municipalities by assuming that the ratio of
searches to index crimes for the 102 municipalities was the same ratio for the
remaining municipalities. Combining this estimate of all municipalities with the
state police searches and other searches provided a one week estimate that
could be multiplied by 52 weeks.
Estimate Based on Police Officers
Another method the Committee utilized to arrive an estimate was based
on the number of police officers. The Committee knew that we had 445
automobile searches from 102 municipalities during a one week period. We also
1
Data contained in the 2007 Uniform Crime Report was used for arriving at an estimate based
on population.
2
This does not include the 69 municipalities covered by the State Police.
2
were able to ascertain from Uniform Crime Report data that those 102
municipalities had 6,144 police officers. The theory was that we could arrive at
an estimate for all municipalities by assuming that the ratio of searches to police
officers for the 102 municipalities was the same ratio for the remaining
municipalities. Combining this estimate of all municipalities with the state police
searches and other searches provided a one week estimate that could be
multiplied by 52 weeks.
APPENDIX B
1
Time of initial call to prosecutor: ______ Application Granted ______ Denied ______
Time that judge was reached: ______
Duplicate Original Superior Court of New Jersey
SEARCH WARRANT Law Division-_________ County
(Criminal Action)
State of New Jersey SS: County of __________________
TO: ______________________________ of the ___________________________Police Department
(Print Name of Officer and Badge #)
And/or any Officer of the _______ County Prosecutor’s Office, and/or any Officer of the New Jersey State Police and/or any
Officer of any law enforcement agency having jurisdiction. This matter being opened to the Court by the above named police
officer on an application made by telephone _____ or other electronic means ______for the issuance of a search warrant for the:
( ) Motor Vehicle ________________________ ( ) Person of: ____________________
( ) Person of: ____________________
( ) Person of: ____________________
( ) Person of: ____________________
And the Court having reviewed the testimony under oath given telephonically ______ or by other electronic means ______by the
above named police officer
And being satisfied that located therein or thereon are:
( ) Controlled Dangerous Substances, and/or Drug Paraphernalia, and/or Currency and/or any other item constituting
evidence of violations of N.J.S. 2C:35-1 et.seq.
( ) Firearms, ammunition and any other item constituting evidence of violations of N.J.S. 2C:39-1 et.seq.
( ) Weapons of any type other than firearms and any other item constituting evidence of violations of N.J.S. 2C:39-1 et.seq.
( ) Other: __________________________________________________________________________________
_____________________________________________________________________________________________
And that probable cause exists for the issuance of this warrant; YOU ARE HEREBY COMMANDED to search the:
( ) Vehicle(s) as further described below ( ) Person(s) as further described below
YOU ARE HEREBY ORDERED, in the event you seize any of the above described articles, to give a receipt for the property
so seized to the person from whom it was taken on in whose possession it was found, or in the absence of such person to leave a
copy of this Warrant together with such receipt in or upon the said motor vehicle from which the property is taken.
YOU ARE FURTHER AUTHORIZED to execute this warrant within ten (10) days from the issuance hereof at any time. And
thereafter to forthwith a prompt return to me with a written inventory of the property seized under the authority of this warrant.
The following is a description of the:
Motor Vehicle(s) to be searched: Tag Number: ______________ State Issued: ____ Make, Model, Year and Color of
Vehicle:___________________________________________________________________________________
( ) In addition to passenger compartment of vehicle, search to include all other accessible areas of the vehicle including the trunk
Person(s) to be searched: #1) Name:_____________________ DOB: ______ Gender: _______ Race: _______
#1) Name:_____________________ DOB: ______ Gender: _______ Race: _______
#1) Name:_____________________ DOB: ______ Gender: _______ Race: _______
#1) Name:_____________________ DOB: ______ Gender: _______ Race: _______
Given and issued under my hand pursuant to R. 3:5-3 (b) at ___ o’clock ___.m., this ______ day of ___________________, 20____
__________________________________________________________
Judge of the Superior Court
By Print Name of Police Officer Authorized to Sign Judge’s Name
( ) This duplicate original search warrant shall also serve as a written confirmatory search warrant pursuant to R. 3:5-3(b). The
original duplicate warrant was originally authorized by the undersigned at ___ o’clock ___.m., this ______ day of
___________________, 20____
__________________________________________________________
Judge of the Superior Court
INVENTORY OF ITEMS SEIZED
(1) ____________________________ (2) ____________________________ (3) ____________________________
(4) ____________________________ (5) ____________________________ (6) ____________________________
Pursuant to R. 3:5-3(b), this warrant was executed by the undersigned at ___ o’clock ___.m., this ______ day of
___________________, 20____
________________________________________________ (Print Name of Officer Executing This Warrant including Badge #)
APPENDIX C
TELEPHONIC SEARCH WARRANT WORKSHEET
Date: ______________________________ Time: __________am / pm
Applicant: ___________________________________________________
Department: __________________________________________________
1. Applicant identified self as: ___________________________________
_____________________________________________________________
_____________________________________________________________.
(a) Identity established by:
Recognized voice ____________
Call back to Headquarters _____________
Other (detail)
________________________________________________________
_______________________________________________________.
2. Applicant stated the reason for the telephone request was:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________.
1
3. Applicant stated the source of information was:
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________.
4. He / she was sworn by me over the telephone at:_____________am/ pm.
5. The information provided was:
Tape recorded on tape marked ________________________________.
Stenograph machine was recorded by ____________________________
_________________________________________________________.
(If neither of the above are utilized write notes)
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
2
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
____________________________________________________________.
6. I found probable cause existed because
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
____________________________________________________________.
7. I authorized search of
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________
_____________________________________________________________.
3
4
(Set forth the extent of property to be searched, hour thereof, limits thereto,
items sought thereby.)
8. Written confirmation was issued by me on
__________________________________________________________________
________________________________________________________.
9. My notes, tapes and confirmation were filed with the Clerk on
_____________________________________________________________
_____________________________________________________________
____________________________________________________________.
_____________________________
J.S.C.
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