State of New Jersey v. Herby V. Desir, a/k/a Johnathan Desir

Trenton, NJ - Criminal defense attorney represented Herby Desir with the controlled purchase of narcotics by a confidential informant (CI).

In this appeal, the Court considers whether defendant Herby Desir is entitled to

discovery regarding the controlled purchase of narcotics by a confidential informant (CI).

Defendant was not charged in connection with that controlled purchase; however, the

purchase formed the probable cause for issuance of a search warrant for defendant's

home, and execution of the search warrant led to charges against defendant for multiple

drug and weapons offenses.

The affidavit submitted by a detective from the Union County Prosecutor's Office

(UCPO) in support of the search warrant application stated that a CI, who had previously

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

defendant stored and sold Methylenedioxy-N-ethylcathinone (sometimes referred to as

Molly) at his home. According to the affidavit, the detective intercepted two phone calls

between the CI and defendant and overheard them discuss the sale of Molly and firearms.

The affidavit stated that, during the second call, defendant told the CI to come to his

house. The detective followed the CI to defendant's residence and monitored the home

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

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

The affidavit stated that the "suspected 'Molly' obtained from [defendant] was

submitted to the [UCPO] Laboratory where it . . . tested positive for [Molly,] a Schedule I

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

the CI with "buy money” with which to purchase the drugs. Based solely on that

affidavit, a judge granted a no-knock search warrant for defendant's home.

Defendant moved to suppress the contraband seized during the execution of the

warrant and for a Franks hearing, which is a hearing to challenge the veracity of an

affidavit upon which a facially valid search warrant is based. Counsel asserted that

defendant did not sell Molly from his home. Five months after filing his motion to

suppress and for a hearing, defendant moved to compel discovery, seeking the initial

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

laboratory reports, and a transcript or audio recording of the intercepted calls.

2

The trial court denied defendant's motion to suppress and for a Franks hearing.

Six months later, a different judge considered and denied defendant's motion to compel

discovery. Defendant pled guilty to possession of Molly with intent to distribute,

reserving the right to appeal the denial of his motions.

The Appellate Division reversed the denial of defendant's motion to compel

discovery and remanded for further proceedings. 461 N.J. Super. 185, 187 (App. Div.

2019). The court permitted defendant, after receiving discovery, "either to withdraw his

plea and proceed to trial . . . or to accept his earlier conviction and sentence.” Id. at 194.

Even though the indictment did not charge defendant with the sale of narcotics to the CI,

the Appellate Division found that, under provisions of Rule 3:13-3(b)(1), the State should

have automatically given defendant the laboratory report -- along with any police reports

and video and sound recordings -- once the indictment was filed. Id. at 193.

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

HELD: A defendant seeking discovery in connection with a Franks hearing may -- in

the trial court's discretion and on showing a plausible justification that casts reasonable

doubt on the veracity of the affidavit -- be entitled to limited discovery described with

particularity that is material to the determination of probable cause. The Court affirms

and modifies the Appellate Division's judgment and remands to the trial court for

consideration under the standard adopted in this decision.

1. Rule 3:13-3(b)(1) codifies the criminal defendant's right to automatic post-indictment

discovery of the evidence the State has gathered in support of its charges, including

"exculpatory information or material” and a list of other "relevant material[s].” To

qualify as "relevant material,” the evidence must have a tendency in reason to prove or

disprove a fact of consequence to the determination of the action. Courts have the

inherent power to order discovery beyond the automatic discovery provisions of Rule

3:13-3(b) when justice so requires. But the discovery process is not a fishing expedition

or an unfocused, haphazard search for evidence. One significant limit on defendants'

discovery rights is the chilling and inhibiting effect that discovery can have on material

witnesses. Recognizing that CIs play an indispensable role in police work, New Jersey

has a privilege against disclosing the identity of the informant. (pp. 12-14)

2. Defendants seeking to challenge the basis of a search warrant must make an

evidentiary showing before a hearing will be granted: they must first establish by a

preponderance of the evidence that the allegedly false statement in the affidavit was made

either deliberately or in reckless disregard of the truth. See Franks v. Delaware, 438 U.S.

154, 155-56 (1978). In State v. Howery, the Court adopted and repeated the principles of

Franks. 80 N.J. 563, 567 (1979). Under the Franks/Howery standard, a defendant's

"attack must be more than conclusory,” "supported by more than a mere desire to crossexamine,” and "accompanied by an offer of proof.” Franks, 438 U.S. at 171. (pp. 15-20)

3

3. In People v. Luttenberger, the California Supreme Court "adopt[ed] a preliminary

showing requirement . . . that is somewhat less demanding than the” showing Franks

requires "for purposes of discovery motions” challenging warrant affidavits "based on

statements of an unidentified informant.” 784 P.2d 633, 646 (Cal. 1990). Specifically,

the Luttenberger court held that, "[t]o justify in camera review and discovery, preliminary

to a subfacial challenge to a search warrant, a defendant must offer evidence casting

some reasonable doubt on the veracity of material statements made by the affiant.” Ibid.

The court noted that, like requests for a Franks hearing, such discovery requests "should

include affidavits supporting defendant's assertions of misstatements or omissions in the

warrant affidavit. Further, a defendant should, if possible, specify the information he

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

it.” Ibid. The Luttenberger court applied those requirements separately to discovery

requests and motions for hearings, id. at 647, and then described what steps a trial court

should take after a preliminary showing has been made, id. at 648. The Luttenberger

court provided guidance about when, and, after redactions, what materials should be

disclosed to defendants, to "assure the defendant of a judicial check on possible police

misrepresentations, while preventing both unfounded fishing expeditions and inadvertent

revelations of the identity of confidential police informants.” See ibid. (pp. 20-25)

4. The Court adopts the Luttenberger standard and will require a defendant to describe

with reasonable particularity the information sought in discovery, sustained by a plausible

justification "casting a reasonable doubt on the truthfulness of statements made in the

affidavit.” Id. at 647. The discovery request should be buttressed by support for

assertions of misstatements or omissions in the search warrant affidavit that are material

to the determination of probable cause, the basis for believing that the information exists,

and the purpose for which the information is sought. Application of this standard and the

determination of whether it has been met in an individual case rest in the sound discretion

of the trial judge, who will review the appropriately redacted discovery in camera. Only

after such in camera review will the judge determine whether the discovery sought

contradicts material facts set forth in the affidavit, should therefore be disclosed, and to

what limitations or redactions the discovery might be subject. (pp. 26-28)

5. Applying that standard here, the Court first notes that the requested materials do not

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

conduct; they are therefore not "relevant” within the meaning of Rule 3:13-3(b)(1), nor

are they exculpatory. As a result, the materials were not subject to automatic disclosure

under Rule 3:13-3(b)(1). (pp. 28-30)

6. The Court thus considers whether, to ensure the fairness of judicial proceedings,

materials identified with reasonable particularity that fall beyond the scope of Rule 3:13-

3(b)(1), but may call into question the validity of a search warrant affidavit, are

discoverable to defendants who have shown a plausible justification for requesting the

materials. Defendant clearly met the standard of reasonable specificity as to the lab

4

report, which was described in the affidavit. Defendant barely met the standard of

plausible justification, given the importance of the lab report to the warrant affidavit, the

dependence of the charges on the execution of that warrant, and the affiant's omission of

any mention of "buy money” in the affidavit. In contrast, the other requested materials

were broadly categorized, would not be amenable to necessary redactions, and were not

identified with reasonable specificity. And the only justification offered in support of

those materials was defendant's blanket denial, which is not sufficient. The Court

stresses, moreover, that defendant's preliminary showing as to the lab report does not

mean he is guaranteed access to that information. Rather, the court will have to review

the report in camera. The ultimate discovery decision resides in the discretion of the trial

court. The Court underscores its adherence to the Franks/Howery framework and

reemphasizes the importance of preserving the confidentiality of informants. (pp. 30-35)

7. The Court acknowledges the error of the trial court in hearing defendant's motion to

compel discovery six months after hearing his motion to suppress evidence. The Court

urges counsel to file these motions together and courts to schedule these motions close in

time. The Court relies on the trial courts to hold defendants to the proofs required by the

preliminary standard adopted in this decision and, when defendants make that requisite

showing, to exercise their discretion, after an in camera review, in determining whether,

and in what manner, discovery should be allowed.

The judgment of the Appellate Division is AFFIRMED AS MODIFIED.