IN THE MATTER OF A SEARCH WARRANT FOR 33 LOCKWOOD AVENUE, FREEHOLD, NJ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2516-04T22516-04T2

IN THE MATTER OF A SEARCH WARRANT

FOR 33 LOCKWOOD AVENUE, FREEHOLD,

NJ,

____________________________________________________________

 

Argued December 5, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. M-2004-763.

Allan Marain, argued the cause for appellants John Simmons and Armatrue Simmons.

Mark P. Stalford, Assistant Prosecutor, argued the cause for respondent, State of New Jersey (Luis A. Valentin, Monmouth County Prosecutor, attorneys, Anthony L. Germano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellants, John Simmons and Armatrue Simmons, appeal the December 17, 2004 Law Division order that ordered the Monmouth County prosecutor to provide appellants' counsel with the full names of any and all officers involved in the execution of the search warrant of a rooming house owned by them at 33 Lockwood Avenue, Freehold, on March 3, 2004, but denied appellants' application for names of the police departments that the officers belong to, the affidavit in support of the search warrant and other paperwork, including police reports stemming from the issuance and execution of the search warrant. We affirm in part, reverse in part, and remand in part for further proceedings in accordance with this opinion.

Appellants, on August 24, 2004, filed a notice of motion seeking an order requiring the State [Monmouth County Prosecutor] to provide them copies of all documents relating to a search at 33 Lockwood Avenue, Freehold. The application was made upon the ground that they were "aggrieved persons" within the meaning of Rule 3:5-6(c).

The specific documents sought by appellants were:

1. All applications for search warrant for the premises in question for the time period in question;

2. All supporting documents, affidavits, transcripts of oral testimony for those search warrants;

3. All search warrants issued as a result of the aforesaid applications and supporting papers; and

4. All returns of service, inventories, and other documentation reflecting the execution of the search warrants; ensued from the aforementioned search warrant, and results thereof.

The certification of Armatrue Simmons in support of the motion stated that police officers, in executing the search warrant, caused

[e]xtensive damage to the kitchen, living room, bedrooms, and the basement. This damage included broken doors, smokebomb damage, destruction of furniture, and enor-mous disarray in tenants' bedrooms . . . .

Officers from several municipalities participated in the raid. I believe that New Jersey State Police also participated. I am uncertain of the specific agencies involved. I also do not know the names of the officers who participated.

Appellants' purpose in seeking these documents was to enable them to file a subsequent civil action, based on the manner in which the warrant was executed, against the individuals and the public entities by whom they were employed, that caused the damage. Appellants also sought the information and documents to enable them to comply with the notice provisions governing claims against public entities contained in N.J.S.A. 59:8-8. Appellants seek to include, in a future civil complaint for money damages, all of those officers and public entities responsible for what they allege is wanton and perhaps willful damage to their property and to eliminate from potential inclusion those officers and public entities not responsible for the damage.

On the December 17, 2004 motion return date, the motion judge agreed that appellants were "aggrieved persons" within the meaning of Rule 3:5-6(c). The judge found, however, that appellants failed to demonstrate "good cause" within the meaning of the rule that would entitle them to obtain the application for the search warrant and the documents presented to the issuing judge in support thereof. The court, however, determined "good cause" had been shown to justify an order compelling release of the names of the police officers involved in the execution of the search warrant. The judge stated: "I think what the order should be is that the State Police, if they were involved, and any other law enforcement agency." The judge expounded:

Certainly the intent of my comments was that any officer involved in the search of that particular premises and the department that they belong to should be given to counsel. So I think that's a start for him to, you know, investigate this particular matter and make a decision where he's going. (emphasis added).

As respects appellants' request for police reports, the court stated:

[A]t this particular point, you know, I haven't seen any police reports concerning the execution of the search warrant. And at this particular point I don't even think that there's enough before me to order the release of those reports. There's no right to know about those particular reports.

But under the Common Law I could see a situation where I could produce police reports if they were relevant to any damage claims in this particular matter. And you know, on further application perhaps I would entertain that.

. . . .

I don't think that good cause has been demonstrated at this juncture to reveal the search warrant and affidavit having to do with the reasons why the police went into that particular location. In terms of the police report and revealing the police report, I think what would have to happen is the Court would have to make an in camera review of the police report and then determine at some point whether or not to release the police report to counsel.

But again, just based upon what I have before me at this particular point, I don't feel that there's a basis to do that. So I will deny the application without prejudice to any future attempt by Mr. Marain on behalf of his client to get the information from the Court.

But I will order the prosecutor to reveal the names of any police officers involved in this particular matter to defense counsel. And I will release it at this particular point. And the prosecutor can make a copy.

And I will release the return of the search warrant which indicates the individuals that were involved in assisting the particular officer in the exercise of the search warrant. So that information can be given to counsel. And if anybody else participated in it, you can check and those names should be given in addition.

The December 17, 2004 order memorializing the judge's oral decision required the prosecutor to provide appellant's counsel with "full names of any and all officers involved in the execution of the search warrant of 33 Lockwood Avenue, Freehold within ten days of the date of [the] order," but failed to require the prosecutor to provide names of the departments or agencies for which the officers were working at the time of the execution of the search warrant.

Defense counsel contacted the motion judge and provided a proposed form of "superseding" order for disclosure that would have required the prosecutor to furnish the names of all agencies that participated in the execution of the search warrant. However, the judge by letter dated January 5, 2005, advised counsel that he deemed the order entered December 17, 2004 to be sufficient.

The return of search warrant was provided to defense counsel on December 17, 2004. The return of search warrant, which was signed by Patrolman Chris Otlowski of the Freehold Police Department, reads in applicable part:

Returned this 4th day of May, 2004.

The within Warrant served on the 3rd day of March 2004, by making a search therein directed, with the assistance of persons hereinafter named: Freehold Twp/Boro Joint Investigation Team members- Lt Larry Loose (FTPD), K-9 unit Billy Martin (MTPD), Ptlm Walter Perski, Ptlm Joe Cicero, myself Ptlm Chris Otlowski, and Freehold Boro Detective Mike George. The NJ State Police T.E.A.M.S. unit assisted with the entry of the premises.

33 Lockwood Ave Freehold NJ 07728

No evidence was seized from this premises.

The police department for K-9 unit, Billy Martin, is designated only by the initials MTPD. There are six municipalities in Monmouth County with the letter "M" as their first initial. They are Manalapan, Manasquan, Marlboro, Matawan, Middletown and Millstone. The return of search warrant also indicates that the New Jersey State Police T.E.A.M.S. unit assisted with the search of the premises but does not indicate the names of the state police officers or the barrack(s) to which they are assigned.

Appellants argue that the motion judge's determination that "good cause" had not been demonstrated for release of the application for search warrant, all supporting documents, affidavits, transcripts of oral testimony in support of the warrants and all police reports memorializing the search, which ensued from the issuance of the search warrant and results thereof was erroneous.

Reviewing courts "'do not disturb the factual findings and legal conclusions of the [motion] judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . .'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). However, "[a] [motion judge's] interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

Rule 3:5-6(c) states:

All warrants that have been completely executed and the papers accompanying them, including the affidavits, transcript or summary of any oral testimony, duplicate original search warrant, return and inventory, and any original tape or stenographic recording shall be confidential except that the warrant and accompanying papers shall be available for inspection and copying by the defendant as provided in R. 3:13-3 and by any person claiming to be aggrieved by an unlawful search and seizure upon notice to the county prosecutor for good cause shown.

The rule is clear that documents and other materials used and prepared to secure a search warrant are confidential and not available for public inspection. Notwithstanding this privilege of confidentiality contained in the rule, there are limited exceptions. Thus, the privilege is not absolute.

Rule 3:5-6(c) sets forth two exceptions: The first states that a criminal defendant shall have access to a warrant and accompanying papers as provided for in Rule 3:13-3. The second exception states that any person claiming to be aggrieved by an unlawful search and seizure is entitled to inspect and copy the papers accompanying a warrant only upon good cause shown. R. 3:5-6(c). (emphasis added).

We have found no appellate level decision which defines "good cause" in the context of Rule 3:5-6(c). However, in defining "good cause" for a disclosure and inspection by an insurer of an insured's income tax returns in Ullman v. Hartford Fire Insurance Co., 87 N.J. Super. 409, 414-15 (App. Div. 1965), we stated:

It is impossible to lay down a universal definition of good cause for disclosure and inspection, or an all-inclusive and definitive catalogue of all of the circumstances to be considered by a court in determining whether there is good cause. Each case must be decided upon its own facts. However, as is said in 4 Moore's Federal Practice (2d ed), 34.08: "Considerations of practical convenience should play the leading role in determining what constitutes good cause . . . ."

Appellants are not criminal defendants and there is no criminal action pending or threatened against them. Therefore,

the first exception to the privilege does not apply. Appellants must, therefore, demonstrate that they are "aggrieved persons" and that "good cause" exists to pierce the privilege. Appellants' first two requests, "all applicants for search warrants" and "all supporting documents, affidavits and transcripts of oral testimony offered to procure the warrants," do not appear necessary to appellants' contemplated civil action or to satisfy the notice requirement of N.J.S.A. 59:8-8. These documents would only contain information proffered by the applicant for the warrant that would justify a judge in issuing a warrant upon a finding of probable cause. See R. 3:5-3; State v. Macri, 39 N.J. 250, 260, (1963).

It is clear from the search warrant itself, contained in the appendix to appellants' brief, that based upon the application of Ptlm. Otlowski who personally appeared before the judge, the judge who issued the warrant found that probable cause existed that 33 Lockwood Avenue is a two story multi-family dwelling set up with rooms for rent on the second level and that tenants have access to the entire house from inside the house. The warrant commanded Ptl. Otlowski "to enter the premises WITHOUT KNOCKING and search with the necessary and proper assistance, the residence . . . and to search with the necessary and proper assistance for the property specified, serving this warrant and making the search, and to take into your possession all such specified property which may be found in the said premises . . . ."

We are confident that the affidavit required as a necessary prerequisite to the judge's grant of the search warrant did not seek an order permitting the officers executing the warrant to damage the property at 33 Lockwood Avenue or contents within the premises to be searched. Clearly, the warrant itself gives no instruction or license to the officers to execute the warrant "unreasonably," thereby causing extensive damage. Additionally, appellants know what damage was caused in the execution of the warrant. Therefore, appellants have not established "good cause" for production of the affidavit or supporting papers to so advise them.

Appellants also sought copies of police reports including those relating to the execution of the search. New Jersey has an expansive policy regarding access to public records. In addition to the Right to Know law codified at N.J.S.A. 47:1A-1, our decisions recognize a strong common law right to access. In Higg-A-Rella, Inc. v. County of Essex, 141 N.J. 35 (1995), the Supreme Court explained:

Although the Right-to-Know Law makes a narrow class of documents unqualifiedly available, the common law makes a much broader class of documents available, but on a qualified basis. Atlantic City, supra, 135 N.J. at 60. Common-law records are any "records 'made by public officers in the exercise of public functions.'" North Jersey Newspapers, supra, 127 N.J. at 13 (quoting Nero, supra, 76 N.J. at 222). "These materials include almost every document recorded, generated, or produced by public officials, whether or not 'required by law to be made, maintained or kept on file,' as required under" the Right-to-Know Law. Shuttleworth v. City of Camden, 258 N.J. Super. 573, 582 (App. Div.) (quoting N.J.S.A. 47:1A-2), certif. denied, 133 N.J. 429 (1992).

However, the common-law right of access to this broad category of records is contingent on two factors. First, the person seeking access must "establish an interest in the subject matter of the material." South Jersey Publishing, supra, 124 N.J. at 487 (citing Irval Realty, Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 372 (1972)). Second, "the citizen's common-law right to gain access to [common-law] public records requires a balancing of interests." Techniscan Corp. v. Passaic Valley Water Comm'n, 113 N.J. 233, 236 (1988) (citing McClain v. College Hosp., 99 N.J. 346 (1985)). Unlike a citizen's absolute statutory right of access, a plaintiff's common-law right of access must be balanced against the State's interest in preventing disclosure. South Jersey Publishing, supra, 124 N.J. at 498. Finally, the common-law process, unlike the Right-to-Know process, "should be 'flexible and adaptable to different circumstances.'" Techniscan, supra, 113 N.J. at 236 (quoting McClain, supra, 99 N.J. at 362).

[Id. at 46-47.]

Irval Realty, Inc. v. Board of Public Utility Commissioners, 61 N.J. 366 (1972) is instructive based on the request for police reports generated in connection with the search at issue here. In Irval Realty, plaintiff instituted an action against the Board of Public Utility Commissioners (BPUC) asserting a right to inspect records and investigative reports to which they had been denied access by BPUC concerning two gas explosions, one of which caused substantial property damage at a turkey farm and the other of which caused fatal injuries to the owner of the property where the explosions occurred. Id. at 369. In determining that plaintiffs had a strong common law remedy for access to the BPUC records, the Supreme Court stated:

On the other hand in pressing their common law remedy plaintiffs' case is perhaps even stronger. [Plaintiffs] have a clear personal interest in examining the reports as an aid in preparing their damage claims for trial. This right to inspect and examine is, as we have said, curtailed in no way by the Right to Know Law.

. . . .

Although we hold, as did the courts below, that as between the interest of the public in maintaining the confidentiality of these records and the interest of the plaintiffs in examining them, the latter outweighs the former, nevertheless the facts of another case may quite possibly call for a different result. It may be that some material in a report such as those we are considering should not be revealed because the public interest will be best served by its remaining secret. In all future cases of this sort, where a controversy arises, the decision should be made by the trial judge to whom the issue will be presented, either on motion or otherwise. He should call for and examine the report or other record. If in his sound judgment some part or all of the information therein contained should not be revealed, he will so rule. If the whole of the record cannot be shown to the party seeking discovery, but certain portions may be, then the judge should extract these portions and make them available for perusal or direct that such other practical steps be taken as will achieve the desired result. This kind of selective practice has for some time been successfully followed with respect to such sensitive documents as income tax returns, corporate records that touch upon trade or business secrets and the like. Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409 (App. Div. 1965).

[Id. at 375-76 (footnote omitted).]

We are satisfied that any police reports by Ptlm. Otlowski or other officers involved in the execution of the search warrant that contain relevant information as to whom among the officers involved in the execution of the warrant might be responsible for the damage alleged to have been inflicted upon the real property at 33 Lockwood Avenue and the contents therein outweighs any concerns of potential privilege that has been asserted by the prosecutor. We do agree, however, with the State that any police reports involved in the criminal investigation that led to the search warrant are not relevant to appellants' inquiry and would not survive the balancing test required by Higg-A-Rella.

In opposing appellants' application, the State cites to our opinion in River Edge Savings and Loan Ass'n v. Hyland, 165 N.J. Super. 540 (App. Div.), certif. denied, 81 N.J. 58 (1979), where we stated:

The receipt by appropriate law enforcement officials of information concerning the existence or occurrence of criminal activities is critical to the uncovering and the prosecution of criminal offenses, and is thus crucial to effective law enforcement. In order that the flow of such information be not impeded or cut off, the law has long treated the information as confidential and privileged against disclosure, thereby protecting witness security, the State's relationship with its informants and witnesses, and other confidential relationships, among other things. The confidentiality extends as well to other materials such as investigative reports and, of necessity, it carries over to proceedings before the grand jury.

[Id. at 543-44 (citations omitted).]

The State, however, recognizes that this privilege is not absolute. "[W]here there are present considerations of fundamental fairness or other considerations of a compelling nature such as outweigh the imperative of the interests of the State in protecting and maintaining the confidentiality of the information, an exception is made and disclosure may be had." Id. at 544.

We are satisfied that the procedure outlined by the Supreme Court in Irval Realty will obviate any of the State's concerns with respect to confidentiality of informants and witness security and at the same time provide appellants with the potential identity of the alleged tortfeasors essential to their claim for damages to their property and its contents.

Therefore, we hold in accordance with the motion judge's oral opinion and with the prosecutor's concurrence, that appellants are entitled as an "aggrieved party" who has demonstrated "good cause" pursuant to Rule 3:5-6(c) to the names and police departments or agencies of the officers involved in the execution of the search of appellants' rooming house at 33 Lockwood Avenue, Freehold, on March 3, 2004. We are also satisfied that appellants have a common law right based on a clear personal interest to examine and receive the police report(s) prepared in connection with the execution of the search warrant, subject to appropriate redaction by the motion judge of those portions that represent legitimate security concerns of the prosecutor. We are further convinced that all other requests of appellants were properly denied by the motion judge based on an absence of demonstrated "good cause" or based on a proper balancing of the citizen's common law right to access against the state's interest in preventing disclosure. Accordingly, we affirm in part and remand in part for further proceedings in accordance with this opinion. We do not retain jurisdiction.

Affirmed in part and remanded in part.

 

Appellants' brief indicates at page 4 that appellants have received a copy of the search warrant and the return of service of the search warrant. Copies are contained in the appendix to appellants' brief at 33a and 36a respectively.

At oral argument, Monmouth County Assistant Prosecutor Mark P. Stalford stated that the Monmouth County Prosecutor had no objection to providing appellants counsel not only the names of every officer involved in the March 13, 2004 search but also the departments or agencies to which each officer is attached. We note that providing both the names and departments would be in conformance with the motion judge's oral opinion, which differs from the December 17, 2004 order purportedly memorializing the judge's oral opinion.

(continued)

(continued)

17

A-2516-04T2

December 27, 2005