New Jersey v. Dickerson

Annotate this Case

This appeal raised the question of whether, in cases involving a search warrant, Rule 3:4-2(c)(1)(B) required the State to produce the affidavit underlying the warrant prior to a pretrial detention hearing pursuant to the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26. During defendant Melvin Dickerson’s pretrial detention hearing, the court denied the State’s motion for pretrial detention. Relying on Rule 3:4-2(c)(1)(B), the court ordered defendant released subject to conditions as a discovery sanction for the State’s failure to produce the search warrant affidavit. On interlocutory appeal, the Appellate Division agreed that the State was obliged to produce the affidavit but held that the trial court erred by releasing defendant as a discovery sanction. Therefore, the Appellate Division directed the State to produce the affidavit and remanded for a full pretrial detention hearing. After review, the New Jersey Supreme Court reversed the Appellate Division’s judgment ordering production of the search warrant affidavit, and also found no evidence or allegation of misconduct on the part of the State justifying discovery sanctions for failure to produce the search warrant affidavit. Thus, the Court agreed with the Appellate Division that the pretrial release of defendant was in error and that the case should be remanded for a full pretrial detention hearing.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State v. Melvin T. Dickerson (A-1-17) (079769)

Argued November 8, 2017 -- Decided February 5, 2018

SOLOMON, J., writing for the Court.

This appeal raises the question whether, in cases involving a search warrant, Rule 3:4-2(c)(1)(B) obliges
the State to produce the affidavit underlying the warrant prior to a pretrial detention hearing pursuant to the Criminal
Justice Reform Act (CJRA),
N.J.S.A. 2A:162-15 to -26.

Police officers with the Asbury Park Police Department (APPD) applied for a warrant to search Welcome
Back Unisex Hair Cuts, a barbershop/hair salon in Asbury Park (the salon). A Superior Court judge issued the
warrant, which did not name any individuals as targets of the search but simply stated that the requesting officer had
“probable cause to believe” that within the salon “[t]here has been and now is located certain” contraband.

Upon execution of the search warrant, the APPD officers found four men inside the salon, including
defendant Melvin Dickerson and co-defendant Julius Franklin (Franklin). Defendant was observed to be at the rear
of the salon when the police entered, near where drugs and guns were later found. When questioned, Franklin told
the officers he worked at the salon. Defendant, however, was “uncooperative.” One of the two other men present
told the officers that he was at the salon waiting for a haircut; the other stated he had just “stopped in . . . briefly and
was not employed [at the salon].” The officers then conducted a search of the salon. The search revealed thirty-one
pieces of evidence including suspected marijuana, weapons, and several documents addressed to defendant at the
salon. After the search, officers arrested Franklin and defendant. That same day, a complaint warrant was issued
charging defendant with ten crimes. The complaint warrant was based upon an affidavit of probable cause that
stated “pursuant to the execution of a search warrant . . . [defendant] was arrested after being found to be in
possession of suspected CDS, weapons, and contraband.”

At defendant’s pretrial detention hearing, the State moved to detain defendant and disclosed the
Preliminary Law Enforcement Incident Report (PLEIR), the complaint, the supporting affidavit of probable cause,
the Public Safety Assessment (PSA), and the incident and arrest reports. Defendant’s PSA rated both his risk of
failure to appear and his risk of new criminal activity as a three out of six. No violence flag was indicated. The
PSA recommended that defendant be released pretrial with conditions and monthly reporting. When asked whether
the State had the affidavit to support the search warrant in its possession, the State responded that it did not have the
affidavit and that it was “not relying upon the affidavit.” The judge found that the affidavit must be produced and,
as a sanction, released defendant with conditions. The State moved for reconsideration, which was denied.

The Appellate Division granted the State’s request for leave to file an interlocutory appeal and affirmed the
trial court’s ruling that the State was required to produce the search warrant affidavit. However, the Appellate
Division reversed the trial court’s decision to release defendant and remanded for a pretrial detention hearing—both
to determine whether defendant should be detained and to determine the appropriate sanctions, if any, for the State’s
failure to provide the search warrant affidavit. The Court granted leave to appeal.
230 N.J. 544 (2017).

HELD: The affidavit supporting a search warrant disclosed in discovery need not be disclosed as a matter of course,
and no particular circumstances necessitated disclosure of that affidavit here. To the extent that the trial court’s order of
release served as a “sanction” for the State’s failure to meet what the court viewed to be the State’s discovery
requirements, that release order was improper.

1. In State v. Robinson, the Court underscored that the State must carry a twofold burden at pretrial detention
hearings—to demonstrate probable cause and to overcome the presumption of pretrial release—and noted that
“discovery should likewise be keyed to both areas.”
229 N.J. 44, 69 (2017). The Court accordingly clarified and
1
amplified the meaning of Rule 3:4-2(c)(1)(B). Rule 3:4-2(c)’s pretrial discovery requirements must “be read in
conjunction with Rule 3:13-3, which obligates the State to provide full discovery when it makes a pre-indictment plea
offer or when an indictment is returned or unsealed.” Id. at 72. That does not mean that the requirements of the two
rules are identical. Rather, the instruction mandates the adoption of “a workable standard.” Id. at 68. (pp. 15-21)

2. Together, Rules 3:5-4 and 3:5-6(c) establish strong confidentiality protections for warrants and their supporting
materials. Rule 3:5-6(c) provides: “the warrant and accompanying papers shall be provided to the defendant in
discovery pursuant to R. 3:13-3,” which provides for “open file” discovery upon indictment or in the event of a plea
offer. It is thus not until further along in the process that the confidentiality concerns protected by Rule 3:5–6(c) bow to
discovery requirements, whereas the discovery provided for in Rule 3:4-2 is to be turned over pretrial. (pp. 21-23)

3. Discovery is limited by the nature of the pretrial detention hearing, at which the State is required only to establish
probable cause and to refute the presumption of release. Whether a search warrant affidavit is discoverable at a
detention hearing will turn on whether it relates to the affidavit of probable cause or the State’s presentation on the risk
factors in the specific case. When charged offenses include an element of possession, trial courts must determine
whether the State has established a sufficient nexus between contraband and a defendant to support a finding of
probable cause based on the discovery it provides pursuant to Rule 3:4-2(c). If the court concludes that additional
related evidence is required to establish the nexus, the court may require production of additional discovery, including
the search warrant affidavit. If the State is then unable or unwilling to produce the evidence needed, it will fail to carry
its burden of proof, and the trial court must order release. The Court leaves it to the trial courts to apply Rule 3:4–2(c)
as clarified to resolve such disclosure issues. That approach is a natural application of existing principles of law.
Going far back in time, judges have made probable cause determinations without either the judge or the defendant
having the benefit of a search warrant affidavit. Likewise, judges have made bail decisions that affected a defendant’s
liberty without a search warrant affidavit. There is no basis under the CJRA or the Rules to require disclosure of search
warrant affidavits that do not relate to probable cause or detention—the only issues before the court. (pp. 23-29)

4. In the present case, the affidavit of probable cause did not refer to the search warrant affidavit, nor did the State rely
on the search warrant affidavit at the detention hearing. The search warrant affidavit did not “relate to” the affidavit of
probable cause. It is true that, where a defendant is one of several persons found on premises where contraband is
discovered, it may not be inferred that he knew of the presence or had control of the contraband unless there are other
circumstances tending to permit such an inference to be drawn. Defendant was in the area of the salon where drugs and
guns were found, and officers found mail addressed to defendant at the salon, a State of New Jersey Certificate of
Authority addressed to defendant, and an expired City of Asbury Park Barbershop/Salon License addressed to a Barbara
Dickerson. It is clear that defendant was not a customer. The State established a nexus sufficient to support probable
cause here. The Court reverses the affirmance of the order that compelled production of that document. (pp. 29-31)

5. The issue of discovery sanctions must be distinguished from a failure by the State to carry its burden as to probable
cause or as to the need for detention. When the State fails to carry its burden in either of those areas, then the
presumption of release under the CJRA carries the day. When the State withholds requisite discovery, there are
sanctions available under our court rules to penalize gamesmanship. Such sanctions cannot include release of a
defendant. As to whether any sanction was warranted, there is no allegation that the State was guilty of any
misbehavior here. No sanction was warranted and the pretrial detention hearing should have been allowed to proceed
as scheduled while interlocutory review of the legal dispute was pursued. The Court accordingly affirms the Appellate
Division’s determination to remand to the trial court for a detention hearing. (pp. 31-33)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is remanded for further proceedings consistent with this opinion.

JUSTICE ALBIN, DISSENTING, expresses the view the majority decision places Rule 3:4-2(c)(1)(B) at
odds with the CJRA and permits the State to disclose the search warrant affidavit only when it is to the State’s
advantage. Justice Albin would hold that when contraband is seized pursuant to a search warrant, the search warrant
affidavit should be disclosed in discovery pursuant to Rule 3:4-2(c) in the absence of extenuating circumstances.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, and TIMPONE
join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion, in which
JUSTICE LaVECCHIA joins.
2
SUPREME COURT OF NEW JERSEY
A-
1 September Term 2017
079769
STATE OF NEW JERSEY,

Plaintiff-Appellant,

MELVIN T. DICKERSON,

Defendant-Respondent.

Argued November 8, 2017 – Decided February 5, 2018
On appeal from the Superior Court, Appellate
Division.
Sarah Lichter, Deputy Attorney General,
argued the cause for appellant (Christopher
S. Porrino, Attorney General, attorney;
Sarah Lichter, of counsel and on the
briefs).
Cody T. Mason, Assistant Deputy Public
Defender, argued the cause for respondent
(Joseph E. Krakora, Public Defender,
attorney; Cody T. Mason, of counsel and on
the briefs).
Jeffrey L. Weinstein, Assistant Prosecutor,
argued the cause for amicus curiae County
Prosecutors Association of New Jersey
(Richard T. Burke, President, attorney;
Jeffrey L. Weinstein, of counsel and on the
brief).
Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney; Alexander R. Shalom,
Edward L. Barocas and Jeanne M. LoCicero, on
the brief).

1
JUSTICE SOLOMON delivered the opinion of the Court.

This appeal raises the question whether, in cases involving

a search warrant, Rule 3:4-2(c)(1)(B) obliges the State to

produce the affidavit underlying the warrant prior to a pretrial

detention hearing pursuant to the Criminal Justice Reform Act

(CJRA),
N.J.S.A. 2A:162-15 to -26.

During defendant Melvin Dickerson’s pretrial detention

hearing, the court denied the State’s motion for pretrial

detention. Relying on Rule 3:4-2(c)(1)(B), the court ordered

defendant released subject to conditions as a discovery sanction

for the State’s failure to produce the search warrant affidavit.

On interlocutory appeal, the Appellate Division agreed that

the State was obliged to produce the affidavit but held that the

trial court erred by releasing defendant as a discovery

sanction. Therefore, the Appellate Division directed the State

to produce the affidavit and remanded for a full pretrial

detention hearing.

We now reverse the Appellate Division’s judgment ordering

production of the search warrant affidavit. We further find no

evidence or allegation of misconduct on the part of the State

justifying discovery sanctions for failure to produce the search

warrant affidavit. Thus, we agree with the Appellate Division

that the pretrial release of defendant was in error and that the

case should be remanded for a full pretrial detention hearing.

2
I.

The following facts are elicited from record documents,

including the search warrant, the incident report prepared by

police, and the complaint-warrant.

After multiple meetings with a confidential informant

discussing the sales of controlled dangerous substances (CDS),

police officers with the Asbury Park Police Department (APPD)

applied for a warrant to search Welcome Back Unisex Hair Cuts, a

barbershop/hair salon in Asbury Park (the salon). A Superior

Court judge reviewed the application and issued the warrant.

The warrant did not name any individuals as targets of the

search but simply stated that the requesting officer had

“probable cause to believe” that within the salon “[t]here has

been and now is located certain” contraband.

Upon execution of the search warrant, the APPD officers

found four men inside the salon, including defendant and co-

defendant Julius Franklin (Franklin). Defendant was observed to

be at the rear of the salon when the police entered, near where

drugs and guns were later found. When questioned, Franklin told

the officers he worked at the salon. Defendant, however, was

“uncooperative.” One of the two other men present told the

officers that he was at the salon waiting for a haircut; the

3
other stated he had just “stopped in . . . briefly and was not

employed [at the salon].”

The officers then conducted a search of the salon. The

search revealed thirty-one pieces of evidence including two

plastic bags of suspected marijuana, a 9mm sub-machine gun, a

.38 caliber semi-automatic handgun, a stun gun, ammunition, two

digital scales, a heat-seal vacuum, a box of Ziploc vacuum

sealer gallon bags, a suspected police scanner, a cell phone, a

State of New Jersey Certificate of Authority addressed to

defendant, an expired City of Asbury Park Barbershop/Salon

License addressed to a Barbara Dickerson, and several more

documents addressed to defendant at the salon. After the

search, officers arrested Franklin and defendant.

That same day, a complaint warrant was issued charging

defendant with ten crimes: 1) fourth-degree possession of over

one-half ounce of marijuana,
N.J.S.A. 2C:35-10(a)(3); 2) third-

degree possession of marijuana with intent to distribute,

N.J.S.A. 2C:35-5(b)(11); 3) third-degree possession of marijuana

with intent to distribute in a school zone,
N.J.S.A. 2C:35-7(a);

4) fourth-degree unlawful interception or use of official

communications,
N.J.S.A. 2C:33-21; 5) two counts of second-

degree possession of a firearm while in the course of committing

a narcotics offense,
N.J.S.A. 2C:39-4.1(a); 6) fourth-degree

possession of a defaced handgun,
N.J.S.A. 2C:39-3(d); 7) second-

4
degree unlawful possession of a machine gun,
N.J.S.A. 2C:39-

5(a); 8) second-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b)(1); and 9) fourth-degree unlawful possession

of a stun gun,
N.J.S.A. 2C:39-3(h). The complaint warrant was

based upon an affidavit of probable cause that stated “pursuant

to the execution of a search warrant . . . [defendant] was

arrested after being found to be in possession of suspected CDS,

weapons, and contraband.”

At defendant’s pretrial detention hearing, the State moved

to detain defendant. In connection with the hearing, the State

disclosed the Preliminary Law Enforcement Incident Report

(PLEIR), 1 the complaint, the supporting affidavit of probable

cause, the Public Safety Assessment (PSA), and the incident and

arrest reports. Defendant’s PSA rated both his risk of failure

to appear and his risk of new criminal activity as a three out

of six. No violence flag was indicated. The PSA recommended

that defendant be released pretrial with conditions and monthly

reporting.

1 The PLEIR “is 'an electronic document that succinctly
describes the relevant factual circumstances’ relating to a
defendant’s arrest.” State v. Robinson,
229 N.J. 44, 61 (2017)
(quoting Office of the Attorney General, Directive Establishing
Interim Policies, Practices and Procedures to Implement Criminal
Justice Reform Pursuant to P.L. 2014, c. 31 § 5.2, at 48 (Oct.
11, 2016)).
5
During defendant’s pretrial detention hearing, the judge

explained to defendant that he had “the right to be provided

with all statements or reports in the prosecutor’s possession

relating to the pretrial detention application.” At that point,

defense counsel claimed that he had received “limited

discovery,” because “the affidavit to support the search warrant

is absent.” When asked whether the State had the affidavit in

its possession, the State responded that it did not have the

affidavit and that it was “not relying upon the affidavit.” The

judge found that the affidavit must be produced, stating:

It doesn’t matter what you’re relying on. If
it relates to the motion, it must be produced.
The Rule does not speak to what information
the State intends to rely upon. That is not
the litmus test for what must be produced. It
is anything that relates to the application.
The defendant is entitled to have all of that
information.

The State further argued that “[t]he affidavit is not

referenced in the PLEIR” and “has nothing to do with the

probable cause that is related to this offense.” The court,

however, found that the affidavit “should be produced . . . .

whether the State is intending to rely on it or not” and, as a

sanction, released defendant with conditions.

A day after defendant was released, the Appellate Division

decided State v. Robinson,
448 N.J. Super. 501, aff’d and

modified,
229 N.J. 44 (2017), and the State moved for

6
reconsideration based on the holding in that case. At the

reconsideration hearing, the State argued that “the only basis

for which the Defense would be able to use the affidavit in

support of the search warrant would be to attack the probable

cause” for the search itself -- a question not at issue at the

pretrial detention stage. The State also argued that “the

appropriate remedy here would not be simply to release the

defendant, but for the Court to issue an order . . . specifying

what documents that the State is to produce.” The State’s

motion for reconsideration was denied, and the Appellate

Division granted the State’s request for leave to file an

interlocutory appeal.

The Appellate Division affirmed the trial court’s ruling

that the State was required to produce the search warrant

affidavit. However, the Appellate Division reversed the trial

court’s decision to release defendant and remanded for a

pretrial detention hearing -- both to determine whether

defendant should be detained and to determine the appropriate

sanctions, if any, for the State’s failure to provide the search

warrant affidavit.

Specifically, the appellate panel held that, when the

State’s evidence in support of pretrial detention is largely

dependent on items seized under a search warrant, the affidavits

7
underlying that warrant are relevant evidence relating to

probable cause. The appellate panel relied on the text of Rule

3:4-2(c)(1)(B), as well as the sixth, seventh, and tenth

principles in State v. Robinson that this Court stated “should

govern the disclosure of evidence at a detention hearing”: (6)

“All statements and reports relating to the affidavit of

probable cause should be disclosed”; (7) “All statements or

reports that relate to any additional evidence the State relies

on to establish probable cause at the detention hearing should

be disclosed”; and (10) “The phrase 'statements and reports’

refers to items that exist at the time of the hearing. The

terms plainly include relevant police reports.”
229 N.J. 44,

70–71 (2017).

The appellate panel rejected the State’s contention that

warrant-related materials need only be produced post-indictment,

holding that the first exception to Rule 3:5-6(c) applied -- “the

warrant and accompanying papers shall be provided to the

defendant in discovery pursuant to R. 3:13-3” -- and that Rule

3:4-2(c) controls the timing of disclosure. The Appellate

Division also held that any confidentiality concerns regarding

production could be remedied by a protective order, which the

State did not seek.

The appellate panel affirmed the trial court’s ruling

compelling the State to produce the search warrant affidavit but

8
vacated the portion of the trial court’s order that denied

pretrial detention without a hearing. The appellate panel found

that the trial court never explained the reasons for imposing

the “sanction” of releasing defendant or why the sanction was

justified under the circumstances. Hence, the appellate panel

remanded for a pretrial detention hearing to evaluate whether

the State acted in good faith when it did not produce the

underlying affidavit, as well as whether the trial court

considered sanctions other than summary denial of the State’s

pretrial detention application.

We granted the State’s motion for leave to appeal.
230 N.J. 544 (2017). We also granted the motions of the American

Civil Liberties Union of New Jersey (ACLU) and the County

Prosecutors Association of New Jersey (CPANJ) to participate as

amici curiae.

II.

The State asserts that, at the pretrial detention stage,

its burden is only to establish probable cause and the

defendant’s risk of danger, flight, and obstruction. According

to the State, an expansive discovery obligation at the pretrial

detention stage would strain the judicial system. Further, the

State argues that search warrant affidavits are not relevant at

the pretrial detention stage.

9
The State contends that defendant was not charged with any

crimes predicated upon activity that occurred before the search

of the salon -- only upon what police found there. Thus, the

search warrant and related affidavit do not establish either

probable cause for any charged offense or defendant’s risk of

danger, flight, or obstruction.

The State claims that the twelve principles governing

disclosure of evidence at pretrial detention hearings set forth

in Robinson all provide that discovery must be “keyed” to the

State’s two tasks at the pretrial detention stage --

establishing probable cause and risk of danger, flight, or

obstruction. Thus, in the State’s view, because defendant’s

charges stem only from evidence seized upon execution of the

search warrant, and not from the search warrant application, the

warrant application materials are not “keyed” to the State’s

dual burdens. 2

The State points out that Rule 3:5-6(c), which governs the

confidentiality of warrants and ancillary materials, allows for

an exception under Rule 3:13-3 but not pursuant to Rule 3:4-

2(c)(1)(B). Furthermore, the State notes that this Court

2 We do not consider the arguments raised by the State or the
other parties inferencing an unpublished Appellate Division
decision reversing a trial court’s order compelling discovery of
a search warrant affidavit. That unpublished decision does not
fall within the narrow exceptions set forth in Rule 1:36-3.
10
adopted a version of Rule 3:4-2 that did not include a proposed

reference to Rule 3:13-3 in order to mark the difference between

pretrial detention discovery and post-indictment discovery.

The State stresses that search warrants often incorporate

information gleaned from the undercover work of confidential

informants. Given the short arrest-to-detention-hearing

schedule the CJRA imposes, the State argues that production of

search warrant affidavits would often endanger confidential

informants by making their identity easily discernable.

The State acknowledges that the materials it relies on to

establish probable cause may be a subset of the materials that

are relevant to probable cause. The State argues, however, that

if it chooses to rely on less than all the relevant materials,

it “runs the risk that the court will deny its pretrial

detention application.”

Defendant argues for affirmance of the Appellate Division’s

decision. Defendant claims that the State’s production

obligation is “'not limited to documents upon which the State

claims to rely’ . . . and instead extends to all materials

related to 'the factual assertions contained in the probable

cause affidavit’ . . . or that 'can be expected to provide the

basic background facts’ concerning the crime and charges.”

(quoting Robinson,
448 N.J. Super. at 517, 520). Defendant also

11
urges that “discovery 'must reflect’ the fact that defendants

face a complete loss of liberty and must be able to challenge

the State’s detention application.” (quoting Robinson,
229 N.J.

at 68). Hence, in defendant’s view, production of the affidavit

in this case was necessary to establish the connection between

himself and the contraband he was alleged to possess. Without

the affidavit, defendant argues, the State can establish only

that defendant -- like multiple other individuals -- was present

at the salon where contraband was found.

“As a result,” defendant argues, his “only established

connection to the contraband is that he, like two uncharged

individuals, was present during the search, and that he may have

worked at [the salon].” “Any additional information concerning

[his] connection to the contraband, or lack thereof, would

therefore relate to the State’s [pretrial detention] application

as much as anything previously disclosed in discovery.”

Defendant further argues that his approach harmonizes Rule

3:5-6 and Rule 3:4-2. According to defendant, the State’s

interpretation “would render Rule 3:4-2(c)(1)(B) moot whenever a

case involves a search warrant.”

Finally, defendant argues that the State has “made clear”

that concerns preventing disclosure, and justifying a protective

order, are not present here because the State did not seek a

protective order.

12
C.

Amicus ACLU does not argue that the State must produce

search warrant affidavits in every case but claims that such

production is required when: 1) the defendant is arrested in a

place other than his home; and 2) there is no evidence of the

defendant’s control over contraband found at the time of arrest.

In the ACLU’s view, the Appellate Division’s holding “need only

apply where the seizure of contraband serves as a basis for

pretrial detention and the location of the seizure alone is

insufficient to show a nexus between the defendant and the

contraband.” The ACLU argues that no production is required

where the contraband is found in a room owned or rented by the

defendant, or on the defendant’s person, because the nexus

between the defendant and the contraband in such situations is

already clear.

Lastly, the ACLU argues that the State can avoid otherwise-

compulsory production by obtaining a protective order where

merited -- that is, on a case-by-case basis and on a showing of

“legitimate, specific security concerns.” The ACLU points out

that, in this case, the State was aware it could move for a

protective order and explicitly chose not to seek one.

The CPANJ agrees with the State. The CPANJ argues that

because warrant confidentiality is paramount, this Court’s rules

13
permit post-execution disclosure in only two scenarios: 1)

post-indictment discovery; and 2) disclosure to any person

claiming to be aggrieved by an unlawful search and seizure.

Similarly, the CPANJ notes, this Court has made search warrants

an exception to the general public availability of criminal case

records.

In that vein, the CPANJ asserts a broad public policy

interest in warrant confidentiality, emphasizing that warrants

may describe ongoing investigations, active wiretaps, identities

of confidential informants, identities of uncharged but

implicated individuals, and witnesses. Therefore, the CPANJ

asserts that the rule for which defendant advocates would force

the State to move for a protective order in an inordinate number

of cases, transforming protective orders from the exception to

the rule and unduly burdening prosecutors.

The CPANJ also argues that, given how quickly law

enforcement must act on warrants to forestall a staleness

defense and how soon detention hearings must follow arrest,

requiring warrant affidavit production would increase the

probability that confidential informants would be identified and

potentially subjected to retaliation. In the CPANJ’s view, the

Appellate Division did not read Rule 3:5-6(c) “in harmony” with

Rule 3:4-2(c), but rather read Rule 3:4-2(c) to entirely trump

the warrant confidentiality rule.

14
The CPANJ notes that law enforcement typically does not

rely on information in search warrant affidavits in preparing

affidavits of probable cause and adds that the warrant materials

in this case did not relate to probable cause or pretrial

detention. Thus, the warrant affidavit here did not fall within

the State’s production obligation, according to the CPANJ.

III.

This case presents a narrow question regarding the State’s

discovery obligation at the pretrial detention stage left

unanswered in Robinson -- whether Rule 3:4-2(c)(1)(B) obliges

the State to produce the affidavit underlying a search warrant

in a pretrial detention hearing.

Appellate review of the meaning of the New Jersey Court

Rules is de novo. Robinson,
229 N.J. at 66; State v. Hernandez,

225 N.J. 451, 461 (2016). “We apply ordinary principles of

statutory construction to interpret the court rules and start

with the plain language of the Rule.” Robinson,
229 N.J. at 67.

The CJRA “allows for pretrial detention of defendants who

present such a serious risk of danger, flight, or obstruction

that no combination of release conditions would be adequate.”

Id. at 54. “After a complaint-warrant is issued, eligible

defendants 'shall be temporarily detained to allow the Pretrial

Services Program to prepare a risk assessment’ and recommend

15
conditions of release.” Id. at 55 (quoting
N.J.S.A. 2A:162-

16(a)).

“When a prosecutor applies for pretrial detention, the

defendant is held pending a hearing.” Id. at 57. “At the

hearing, the defendant has the right to counsel and . . . the

right to testify, to call witnesses, to cross-examine witnesses

who appear, and to present information by proffer or otherwise.”

Id. at 58 (citation omitted). “In the end, if a court orders

detention, its decision must be supported by clear and

convincing evidence.” Ibid.

“[T]he [CJRA] calls for a determination of probable cause

and an assessment of the risk of danger, flight, and

obstruction, which may include consideration of the nature and

circumstances of the offense and the weight of the

evidence . . . .” Id. at 69; see also
N.J.S.A. 2A:162-18(a)(1);

-19(e)(2); -20(a), (b). The statute does not, however, specify

what discovery must be turned over to defendants as to those

proofs.

We addressed the issue of discovery in crafting rules to

guide the implementation of the CJRA. This Court’s Criminal

Practice Committee issued a report, which became part of the

legislative history of the rules eventually adopted. See

Robinson,
229 N.J. at 59; see also Report of the Supreme Court

Committee on Criminal Practice on Recommended Court Rules to

16
Implement the Bail Reform Law, Part I: Pretrial Release (May 9,

2016); Report of the Supreme Court Committee on Criminal

Practice on Recommended Court Rules to Implement the Bail Reform

Law, Part II: Pretrial Detention & Speedy Trial (May 12, 2016).

The report indicated that “[t]he Committee divided sharply about

the amount and type of discovery that should be required for

pretrial detention hearings.” Robinson,
229 N.J. at 59.

Ultimately, the Court amended Rule 3:4-2 to set parameters for

that discovery. See R. 3:4-2 (as amended Dec. 6, 2016).

In Robinson, one of the earliest CJRA cases, this Court

revisited those parameters in connection with a discovery

dispute. We underscored that the State must carry a twofold

burden at pretrial detention hearings -- to demonstrate probable

cause and to overcome the presumption of pretrial release -- and

noted that “discovery should likewise be keyed to both areas.”

229 N.J. at 69. We accordingly clarified and amplified the

meaning of Rule 3:4-2(c)(1)(B). Id. at 71–72.

In so doing, we identified twelve “principles” that

“govern” the disclosure of evidence at a detention hearing, id.

at 69–71, many of which are relevant here. “All exculpatory

evidence must be disclosed.” Id. at 71. Further, there are

specific documents that the State must turn over: the

complaint, the PSA, the PLEIR, and the affidavit of probable

cause. Id. at 69. We specified that, “[i]f a similar document

17
with a different name is used [instead of an affidavit] to

establish probable cause, that document must be disclosed.”

Ibid. We also required the State to provide the defendant with

“[a]ll statements and reports relating to the affidavit of

probable cause. In other words, if an affidavit of probable

cause describes what a police officer or witness observed, an

initial police report or witness statement that relates to those

factual assertions must be disclosed.” Id. at 70. Disclosure

is also required for “statements or reports that relate to any

additional evidence the State relies on to establish probable

cause at the detention hearing.” Ibid. “For example, if the

State, at the detention hearing, refers to a witness whose

observations are not discussed in the affidavit of probable

cause, all statements and reports relating to the additional

witness should be disclosed.” Ibid.

In addition to those requirements, we offered two important

definitions in Robinson. First, we noted “[t]he phrase

'statements and reports’ refers to items that exist at the time

of the hearing. The terms plainly include relevant police

reports.” Id. at 70–71. Second, we stressed that, although the

phrase “relate to” can be construed broadly, see Webster’s

Second New College Dictionary 935 (2d ed. 2001) (defining

“relate” as “[t]o have a connection, relation, or reference”),

it must be given a workable meaning in New Jersey jurisprudence,

18
see Robinson,
229 N.J. at 72 (“Judges must also be mindful of

practical concerns . . . there may be dozens of police reports

at the time of arrest that arguably relate to the affidavit of

probable cause.”).

To implement the principles we identified, this Court

exercised its Article VI rulemaking power to bypass the

committee process and directly revise Rule 3:4-2(c) in the text

of Robinson. Id. at 72, 74; see also N.J. Const. art. VI, § 2,

¶ 3. Under Rule 3:4-2(c), as modified by Robinson, a prosecutor

seeking pretrial detention must now provide defense counsel with

five categories of materials:

[1] the discovery listed in subsection (A)
above [(i.e., “a copy of any available
preliminary law enforcement incident report
concerning the offense and the affidavit of
probable cause”)],

[2] all statements or reports relating to the
affidavit of probable cause,

[3] all statements or reports relating to
additional evidence the State relies on to
establish probable cause at the hearing,

[4] all statements or reports relating to the
factors listed in
N.J.S.A. 2A:162-18(a)(1)
that the State advances at the hearing,[ 3] and

3 The factors the State may advance are applicable to show that
no amount of monetary bail, non-monetary conditions of pretrial
release, or combination of monetary bail and conditions would
reasonably assure 1) defendant’s appearance in court when
required, 2) the protection of the safety of any other person or
the community, and 3) that defendant will not obstruct or
attempt to obstruct the criminal justice process.
N.J.S.A.
2A:162-18(a)(1).
19
[5] all exculpatory evidence.

[Robinson,
229 N.J. at 71–72; R. 3:4-
2(c)(1)(B).]

The revised Rule 3:4-2(c) provides defendants with “far

broader discovery” than they are entitled to at the pretrial

detention stage in the federal system, Robinson,
229 N.J. at 61,

and represents this Court’s carefully considered attempt to

strike a balance between the significant competing interests at

stake, see id. at 76. We noted in Robinson that making the

State’s discovery obligation at the pretrial detention stage any

“broader” would “impose a greater administrative burden on the

State” and thereby risk “frustrat[ing] the purpose of the

[CJRA].” Id. at 76. After all, “in light of the [CJRA’s] very

tight time constraints,” under a broader discovery obligation,

“the State might be forced to limit detention motions based on

the resources it can devote to discovery in the days after an

arrest, and not its assessment of the risk of danger, flight, or

obstruction that a defendant poses.” Ibid.

We further stressed the need for balance by instructing

that Rule 3:4-2(c)’s pretrial discovery requirements must “be

read in conjunction with Rule 3:13-3, which obligates the State

to provide full discovery when it makes a pre-indictment plea

offer or when an indictment is returned or unsealed.” Id. at

72. That does not mean that the requirements of the two rules

20
are identical; on the contrary, the Court declined to adopt

during the rulemaking process a proposal that would have

collapsed the distinctions between the two. See id. at 60-61.

Rather, the instruction mandates the adoption of “a

workable standard,” id. at 68 -- one that does “not impose

impractical demands on law enforcement” and that balances both

“the law’s tight timeframe,” ibid., and the limited purpose of

detention hearings, which “are not full-scale trials designed to

assess guilt,” id. at 73, against “the defendants’ liberty

interests,” id. at 68, and the fact that “[i]n our society

liberty is the norm, and detention prior to trial or without

trial is the carefully limited exception,” ibid. (quoting United

States v. Salerno,
481 U.S. 739, 755 (1987)).

That mandate is not self-executing, however. And although

Robinson provides a great deal of guidance as to discovery

requirements in pretrial detention proceedings, it does not

discuss search warrant affidavits. Nor did the report by the

Criminal Practice Committee refer to the discoverability of

search warrant affidavits at the pretrial detention stage. We

therefore turn to the rules that address search-warrant

discovery in general for guidance.

The court rules regarding warrants and supporting documents

predate the CJRA. “A search warrant shall be issued with all

21
practicable secrecy and the affidavit or testimony upon which it

is based shall not be . . . made public in any way prior to

execution,” with disclosure punishable by contempt. R. 3:5-4.

After the warrant’s execution, the warrant itself “and the

papers accompanying [it], 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.” R. 3:5-6(c).

Together, Rules 3:5-4 and 3:5-6(c) establish strong

confidentiality protections for warrants and their supporting

materials. The reason for warrant confidentiality is, in part,

that warrants may describe ongoing investigations, active

wiretaps, identities of confidential informants, identities of

uncharged but implicated individuals, and witnesses. See State

in Interest of N.H.,
226 N.J. 242, 256 (2016) (explaining a

protective order, in the pretrial detention context, is used “to

redact, delay, or withhold the disclosure of materials that

would expose witnesses and others to harm, hinder or jeopardize

ongoing investigations or prosecutions, undermine the secrecy of

informants and confidential information which the law

recognizes, or compromise some other legitimate interest”); R.

3:13–3(a)(1), (e)(1).

Despite those concerns for warrant confidentiality, Rule

3:5-6(c) provides two exceptions. First, “the warrant and

22
accompanying papers shall be provided to the defendant in

discovery pursuant to R. 3:13-3”; and second, the warrant and

accompanying papers shall be “available for inspection and

copying by any person claiming to be aggrieved by an unlawful

search and seizure upon notice to the county prosecutor for good

cause shown.” R. 3:5–6(c).

The first of those exceptions is relevant here. That

exception is tethered to Rule 3:13-3, which provides for the

defendant’s receipt of “open file” discovery upon indictment or

in the event the prosecutor makes a pre-indictment plea offer.

It is thus not until further along in the process that the

confidentiality concerns protected by Rule 3:5–6(c) bow to

discovery requirements, whereas the discovery provided for in

Rule 3:4-2 is to be turned over pretrial. In order to read the

pretrial discovery rule “in conjunction with Rule 3:13-3,”

therefore, we must determine whether the confidentiality

interests described above militate against imposing the full-

disclosure requirements of Rule 3:13-3 at the earlier proceeding

governed by Rule 3:4-2(c).

IV.

We first determine whether, as a matter of course, the

State is required to produce the affidavit of probable cause

supporting a search warrant before a pre-detention hearing under

23
the CJRA. Applying the principles set forth in Robinson and

considering the confidentiality concerns raised by search

warrants, we decline to establish such a blanket rule.

Discovery is limited by the nature of the pretrial

detention hearing, at which the State need not prove guilt, but

rather is required only to establish probable cause and to rebut

the presumption of release. See N.J.S.A. 2A:162–19(e)(2).

Defendants are entitled, in addition to “all exculpatory

evidence and a copy of the charging document,” to “statements or

reports that relate to (1) the affidavit of probable cause and

(2) additional evidence the prosecution relies on at the

detention hearing -- both to establish probable cause and to

advance any relevant risk factors.” Robinson,
229 N.J. at 76.

Therefore, as to probable cause, the evidence to be produced is

circumscribed by what the State chooses to include in its

affidavit of probable cause or equivalent document and what it

explicitly relies on during a detention hearing. See ibid. If,

through the manner in which it frames its presentation, the

State does not meet its burden of showing probable cause, the

defendant must be released. Ibid.

Whether a search warrant affidavit is discoverable at a

detention hearing, therefore, will turn on whether it relates to

the affidavit of probable cause or the State’s presentation on

the risk factors in the specific case. For example, if an

24
affidavit of probable cause alleged that defendant conducted a

series of drug transactions, and the search warrant affidavit

outlined those transactions, the State would have to disclose

the warrant affidavit in connection with the detention hearing.

On the other hand, if the affidavit of probable cause relied on

items found during a search but not a defendant’s prior history

of drug dealing, the warrant affidavit would not have to be

disclosed until the time of indictment.

The State may choose to include in its affidavit or discuss

at the detention hearing only a portion of the evidence in its

possession. In such circumstances, Rule 3:4-2(c) mandates only

that the State produce discovery related to its presentation.

That is true even if production of additional discovery would

better describe the strength of the State’s case.

At the pretrial detention hearing, the court will consider

the State’s application to “determine probable cause -- whether

an officer has a 'well grounded suspicion that a crime has been’

committed and that defendant committed the offense.” Id. at 68-

69 (quoting State v. Gibson,
218 N.J. 277, 292 (2014)). As we

stressed in Robinson, that determination “calls for 'less

evidence than is needed to convict at trial.’” Id. at 69

(quoting State v. Brown,
205 N.J. 133, 144 (2011)).

Nevertheless, when charged offenses include an element of

possession, a showing of probable cause that defendant committed

25
the offense requires the State to establish a nexus between the

defendant and the contraband sufficient to support a well-

grounded suspicion that the contraband was in defendant’s

possession within the meaning of the charged offenses.

Thus, at pretrial detention hearings, trial courts must

determine whether the State has established a sufficient nexus

between contraband and a defendant to support a finding of

probable cause based on the State’s presentation and the

discovery it provides pursuant to Rule 3:4-2(c). Moreover, if

“nexus” is rightly an issue, a defendant is free to challenge

probable cause on that basis.

The ACLU argues that search warrant affidavits should be

disclosed whenever the nexus between the defendant and the

contraband is the basis “for pretrial detention and the location

of the seizure alone is insufficient to show a nexus between the

defendant and the contraband.” We decline to adopt that

approach. Rule 3:4-2(c) instead calls for disclosure of

materials that relate to the State’s presentation at the

detention hearing. Thus, if the affidavit establishes the

particular nexus between the defendant and the contraband found,

the warrant should be disclosed. That will not be the case with

all search warrant affidavits, however.

Judges, of course, have discretion to require production of

additional discovery, including the search warrant affidavit,

26
when appropriate. State v. Ingram,
230 N.J. 190, 213 (2017).

Thus, if the trial court concludes that additional related

evidence is required to establish the nexus between a defendant

and the contraband, the court may require production of

additional discovery, including the search warrant affidavit.

Cf. ibid. (“We find that the State is not obligated to call a

live witness at each detention hearing. To be clear, though, we

repeat that the trial court has discretion to require direct

testimony if it is dissatisfied with the State’s proffer. In

those instances, the State must proceed reasonably promptly to

avoid unduly prolonging a defendant’s detention while the

hearing is pending.” (citation omitted)).

In this way the trial court, not the State as is claimed by

our dissenting colleague, “control[s] the information that flows

through the discovery spigot.” If the State is then unable or

unwilling to produce the evidence needed to establish probable

cause, it will fail to carry its burden of proof, and the trial

court must order release. See
N.J.S.A. 2A:162-19(e)(2);

Robinson,
229 N.J. at 58. In sum, we leave it to our trial

courts to apply Rule 3:4–2(c) as clarified by this Court to

resolve such disclosure issues.

Our approach is a natural application of existing

principles of law. Going far back in time, judges have made

probable cause determinations without either the judge or

27
the defendant having the benefit of a search warrant affidavit

in hand. Likewise, judges have made bail decisions that

affected a defendant's liberty without a search warrant

affidavit. Today, they are called upon to make both types of

decisions -- probable cause and detention -- at the same time,

with far more discovery than has been available previously at

this early stage under state law, and far more than is available

under comparable federal law. There is no basis under the CJRA

or the Rules to go further and require disclosure of search

warrant affidavits that do not relate to probable cause or

detention -- the only issues before the court. There will be

ample later to litigate the merits of the search warrant

affidavit.

Our holding also allows courts to maintain the

confidentiality of search warrants in many cases, in keeping

with Rules 3:5-4 and 3:5-6(c), and will promote efficiency in

pretrial proceedings. See ibid.; Robinson,
229 N.J. at 68. At

the same time, that approach respects the evidentiary burdens

established by the Legislature in the CJRA. See
N.J.S.A.

2A:162-19(e)(2). We note that, to the extent a search warrant

affidavit contains exculpatory information, its discovery is

already explicitly required by Rule 3:4-2(c)(1)(B)(v). We

stress that, if the circumstances of the case so warrant, the

State may seek a protective order if the trial court requires

28
discovery of a search warrant affidavit. See Robinson,
229 N.J.

at 72; N.H.,
226 N.J. at 256.

This approach also recognizes that detention hearings

differ from trials and suppression hearings. At the detention

hearing, the court only determines probable cause and assesses

the statutory risk factors. Challenges to the sufficiency of

the search warrant affidavit and the admissibility of evidence

come later in the judicial process, by which time the State will

have been required to comply with its discovery obligation under

Rule 3:13 and disclose any search warrant affidavits.

Having determined that automatic disclosure of search

warrant affidavits is not mandatory but that trial courts may

require such disclosure, we consider whether disclosure was

required in the present case.

As a part of discovery, the State provided, as required by

Robinson, the PLEIR, the complaint, the supporting affidavit of

probable cause, the PSA, and the incident and arrest reports,

which were, in this case, commendably detailed. Further, unlike

the “barebones affidavit” cautioned against in Robinson and

criticized in Ingram, the affidavit of probable cause that the

State provided stated in part: “Pursuant to the execution of a

search warrant on 02/01/2017 the accused was arrested after

being found to be in possession of suspected CDS, weapons, and

29
contraband.” Also, the State turned over the search warrant

referenced in that portion of the affidavit as required by

Robinson. See
229 N.J. at 70.

The affidavit of probable cause did not refer to the search

warrant affidavit, nor did the State rely on the search warrant

affidavit at the detention hearing. The search warrant

affidavit in this case simply did not “relate to” the affidavit

of probable cause. It is clear in this case that the evidence

relied upon by the State was obtained when the search warrant

was executed, not before.

Amicus ACLU asserts that that such production is required

when the defendant is arrested in a place other than his home

and that, here, there is no evidence of the defendant’s control

over contraband found at the time of arrest. Defendant claims

that additional information was required to establish a nexus

between him and the contraband. We disagree.

It is true that, “[w]here . . . a defendant is one of

several persons found on premises where [contraband is]

discovered, it may not be inferred that he knew of the presence

or had control of the [contraband] unless there are other

circumstances . . . tending to permit such an inference to be

drawn.” State v. Brown,
80 N.J. 587, 593 (1979) (first ellipsis

in original) (quoting State v. Sapp,
144 N.J. Super. 455, 461

(1975), rev’d on other grounds,
71 N.J. 476 (1976)). In this

30
case, such additional circumstances were present. First,

defendant was in the area of the salon where drugs and guns were

found. Second, officers found mail addressed to defendant at

the salon, a State of New Jersey Certificate of Authority

addressed to defendant, and an expired City of Asbury Park

Barbershop/Salon License addressed to a Barbara Dickerson. It

is clear that, unlike others present, defendant was not a

customer. The State established a nexus sufficient to support

probable cause here.

Because we find, first, that the affidavit supporting a

search warrant disclosed in discovery need not be disclosed as a

matter of course and, second, that no particular circumstances

necessitated disclosure of that affidavit here, we reverse the

Appellate Division’s affirmance of the trial court order that

compelled production of that document.

We turn now to the issue of the appropriate remedy for

failure to comply with the discovery requirements set forth in

Rule 3:4-2(c)(1)(B) and explained in greater detail here and in

Robinson. Although there was no such failure here -- inasmuch

as it was not necessary to turn over the search warrant

affidavit in this case -- we offer the following guidance.

The issue of discovery sanctions must be distinguished,

first and foremost, from a failure by the State to carry its

31
burden as to probable cause or as to the need for detention.

When the State fails to carry its burden in either of those

areas, then the presumption of release under the CJRA carries

the day. See
N.J.S.A. 2A:162-15, -19. When the State withholds

requisite discovery, there are sanctions available under our

court rules to penalize gamesmanship. See R. 3:13–3(f).

Such sanctions cannot include release of a defendant. Only

the failure of the State to establish probable cause or to

overcome the presumption of release justifies release. N.J.S.A.

2A:162–19(e)(2). Detention is required under the CJRA when

necessary to protect the public, prevent obstruction, or ensure

a defendant’s appearance. N.J.S.A. 2A:162–18(a)(1). The court

must not eschew those interests to punish what it perceives to

be bad conduct. The public cannot be imperiled, nor the

integrity of the judicial system compromised, due to a failure

to comply with a discovery order. Thus, to the extent that the

trial court’s order of release served as a “sanction” for the

State’s failure to meet what the court viewed to be the State’s

discovery requirements, that release order was improper.

As to whether any sanction was warranted, we note that

there is no allegation that the State was guilty of any

misbehavior. Indeed, the question of whether the search warrant

affidavit was related to the issues of probable cause or

detention was substantial and genuine. There was no

32
inappropriate conduct here –- only an honest legal dispute as to

the discovery requirements of Rule 3:4–2(c). We therefore find

that no sanction was warranted and that the pretrial detention

hearing should have been allowed to proceed as scheduled while

interlocutory review of the legal dispute was pursued. We

accordingly affirm the Appellate Division’s determination to

remand to the trial court for a detention hearing.

VI.

For the reasons set forth above, we reverse the judgment of

the Appellate Division requiring the State to produce the

affidavit in support of the search warrant issued here in pre-

detention hearing discovery. We affirm the judgment of the

Appellate Division remanding the matter to the trial court to

conduct a detention hearing.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion. JUSTICE
ALBIN filed a separate, dissenting opinion, in which JUSTICE
LaVECCHIA joins.

33
SUPREME COURT OF NEW JERSEY
A-
1 September Term 2017
079769
STATE OF NEW JERSEY,

Plaintiff-Appellant,

MELVIN T. DICKERSON,

Defendant-Respondent.

JUSTICE ALBIN, dissenting.

The purpose of the discovery rule in a pretrial detention

hearing is to give the defendant a fair opportunity to challenge

the State’s assertion that probable cause supports the charged

offense and that detention is the only means of assuring public

safety. The majority’s crabbed interpretation of Rule 3:4-2(c)

empowers and encourages the State to present the trial court

with as little evidence as possible to avoid giving the

defendant readily available information to contest the State’s

presentation. That approach not only disserves principles of

fair play, but also ultimately deprives the court of vital

evidence necessary to carry out its statutory obligation of

determining whether detention is appropriate under the Criminal

Justice Reform Act (CJRA),
N.J.S.A. 2A:162-15 to -26.

In this case, the State charged defendant Melvin Dickerson

with unlawful possession of drugs with intent to distribute,

1
unlawful possession of firearms, and related offenses. The

police -- armed with a search warrant -- seized drugs, drug

paraphernalia, and firearms from a hair salon in Asbury Park

where defendant allegedly worked. Defendant requested in

discovery the search warrant affidavit, which presumably would

show whether defendant had a true connection to the salon. The

State categorically denied the request. It did not claim that

disclosure of the search warrant affidavit would place in

jeopardy a confidential informant or a witness. Nor did it ask

for a protective order.

The trial court ordered the State to disclose the affidavit

to the defense, and the Appellate Division affirmed, holding

“that Rule 3:4-2(c)(1)(B) required the State to produce to

defendant the search warrant information before the detention

hearing.” In reversing both the trial court and Appellate

Division, the majority announces that discovery is limited to

the evidence the State presents at the detention hearing.

Because the State relied on the search warrant but did not utter

the words “search warrant affidavit,” the majority finds that

all relevant information in that affidavit is rendered non-

discoverable. In effect, the majority provides a guidebook to

the State on how to scrimp on its discovery obligations.

The majority decision also places our court rule at odds

with the CJRA, which requires that trial courts consider, in

2
determining whether detention is warranted, the “nature and

circumstances of the offense charged” and the “weight of the

evidence against the eligible defendant.” See
N.J.S.A. 2A:162-

20(a) to (b). That statutory obligation cannot be fulfilled

when the State parcels out only the evidence it wishes to

present to the trial court.

For those reasons, and more, I respectfully dissent.

After passage of the CJRA, this Court received input from

all stakeholders in the criminal justice system -- prosecutors,

defense attorneys, and judges -- and then adopted a discovery

rule detailing what the State must produce when it seeks pre-

trial detention. See Report of the Supreme Court Committee on

Criminal Practice on Recommended Court Rules to Implement Bail

Reform Law, Part I: Pretrial Release (May 9, 2016); Report of

the Supreme Court Committee on Criminal Practice on Recommended

Court Rules to Implement Bail Reform Law, Part II: Pretrial

Detention & Speedy Trial (May 12, 2016). The court rule

required the prosecutor to “provide the defendant with all

statements or reports in its possession relating to the pretrial

detention application[,]” including “all exculpatory evidence.”

R. 3:4-2(c)(1)(B).

The rule corresponded to the trial court’s statutory duty

in making pre-trial detention determinations.
N.J.S.A. 2A:162-

3
20(a) to (f) permits the trial court to consider such factors

as: “[t]he nature and circumstances of the offense charged”;

“[t]he weight of the evidence against the eligible defendant”;

“[t]he history and characteristics of the eligible defendant”;

the danger posed to any person or the community if defendant

were released; the risk of obstruction of justice if defendant

were released; and the recommendation of the pretrial services

program. To take account of those factors, the trial court

needs access to the State’s “discovery.”

In State v. Robinson,
229 N.J. 44 (2017), the majority

dispensed with the rulemaking process and redrafted the

discovery rule in pretrial detention hearings. The rule now

provides that when the prosecutor seeks pretrial detention,

the prosecutor shall provide the defendant
with

(i) [a copy of any available preliminary law
enforcement incident report concerning the
offense and the affidavit of probable cause],

(ii) all statements or reports relating to the
affidavit of probable cause,

(iii) all statements or reports relating to
additional evidence the State relies on to
establish probable cause at the hearing,

(iv) all statements or reports relating to the
factors listed in
N.J.S.A. 2A:162-18(a)(1)
that the State advances at the hearing, and

4
(v) all exculpatory evidence.1

[R. 3:4-2(c)(1)(B) (amended May 10, 2017 to be
effective immediately).]

Robinson does not alter the trial court’s right to consider

the factors set forth in
N.J.S.A. 2A:162-20(a) to (f) pursuant

to the CJRA. The trial court, however, will not know the nature

and circumstances of an offense or the weight of the evidence if

it is given only a partial account by the State.

The question here is whether the State was required to

disclose the search warrant affidavit to defendant and the trial

court. In light of Robinson and the revised discovery rule, the

Appellate Division answered in the affirmative. It held “that

when the State’s evidence is largely dependent on items seized

under a search warrant, the affidavits submitted in support of

the application for the search warrant and related police

reports are relevant evidence relating to the issue of probable

cause in a pretrial detention hearing.”

1 N.J.S.A. 2A:162-18(a)(1) provides that pretrial detention may
be ordered if

the court finds clear and convincing evidence
that no amount of monetary bail, non-monetary
conditions of pretrial release or combination
of monetary bail and conditions would
reasonably assure the eligible defendant’s
appearance in court when required, the
protection of the safety of any other person
or the community, and that the eligible
defendant will not obstruct or attempt to
obstruct the criminal justice process.

5
The majority, however, has determined otherwise, concluding

that the State can control the information that flows through

the discovery spigot. In that vein, the majority states, “the

evidence to be produced is circumscribed by what the State

chooses to include in its affidavit of probable cause or

equivalent document and what it explicitly relies on during a

detention hearing.” Ante at ___ (slip op. at 24). According to

the majority, “Rule 3:4-2(c) mandates only that the State

produce discovery related to its presentation,” and thus the

State can limit the scope of discovery by discussing “at the

detention hearing only a portion of the evidence in its

possession.” Ante at ___ (slip op. at 25). Because the State

made the strategic decision not to mention the search warrant

affidavit in its affidavit of probable cause, the search warrant

affidavit remains sealed in the vault, regardless of its

relevance.

But still the majority builds in a fail-safe mechanism in

case the State, in doling out the minimum amount of discovery,

falls short in its probable-cause presentation. “Thus, if the

trial court concludes that additional related evidence is

required to establish the nexus between a defendant and the

contraband, the court may require production of additional

discovery, including the search warrant affidavit.” Ante at ___

(slip op. at 27) (emphasis added). In contrast, the majority

6
does not require disclosure of the search warrant affidavit when

it may instead show that there is no clear nexus between a

defendant and the contraband.

I do not read Rule 3:4-2(c) to permit such gamesmanship. A

fair reading of the rule would let the trial court assess --

after reviewing the search warrant affidavit -- whether there is

a strong or weak nexus between the defendant and the contraband.

II.

In my view, Rule 3:4-2(c)(1)(B) allows for the disclosure

of the search warrant affidavit, in the absence of a claim of

danger to a witness or a confidential informant. That rule

requires that the State provide “all statements or reports

relating to”: (1) “the affidavit of probable cause,” Rule 3:4-

2(c)(1)(B)(ii) (emphasis added), (2) “additional evidence the

State relies on to establish probable cause at the hearing,”

Rule 3:4-2(c)(1)(B)(iii), and (3) “the factors listed in

N.J.S.A. 2A:162-18(a)(1) that the State advances at the

hearing,” Rule 3:4-2(c)(1)(B)(iv). The search warrant affidavit

relates to all three categories because it undoubtedly provides

evidence of the connection, if any, between defendant and the

contraband that he is charged with possessing. The search

warrant affidavit directly relates both to the confiscated drugs

and weapons relied on by the State at the detention hearing and

7
to the factors relevant to detention, which include the nature

and circumstances of the offense and the weight of the evidence.

Last, it relates to the search warrant itself.

Discovery rules are intended to illuminate not obscure, to

eliminate surprise, and to advance the integrity of the truth-

seeking process. The majority’s paradigm permits the State to

disclose the search warrant affidavit only when it is to the

State’s advantage. Why would we construe our discovery rule to

allow the State to hide a search warrant affidavit that weakens

its case? That surely will not enhance a court’s ability to

make a just determination at a pretrial detention hearing. I do

not believe our rules permit the State to satisfy its discovery

obligations by dispensing morsels of information.

The State’s legitimate confidentiality concerns can be met

without eviscerating our discovery rule. I would hold that when

contraband is seized pursuant to a search warrant, the search

warrant affidavit should be disclosed in discovery pursuant to

Rule 3:4-2(c) in the absence of extenuating circumstances. For

example, if disclosure of the search warrant affidavit would

endanger or place at risk a witness or confidential informant,

or jeopardize an ongoing investigation, the State could apply

for a protective order. Because the pretrial detention hearing

occurs shortly after an arrest, when the State may not be in a

8
position to make a sound assessment concerning the risk to its

witnesses or investigation, I would give the State the benefit

of the doubt. If the State makes a good-faith representation

that a confidential informant or other witness, or the ongoing

investigation, would be placed at risk without a redaction of

the affidavit, then such a redaction should be made. If the

State makes a good-faith representation that a disclosure, with

or without a redaction, would imperil either the informant or

witness, or the ongoing investigation, then no disclosure would

be warranted.

At oral argument, we received representations that, in a

number of counties, the State releases search warrant affidavits

as part of the pretrial detention discovery obligations. That

commendable practice will likely come to an end with this case.

III.

For the reasons expressed, I respectfully dissent.

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