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NJ: Conditioning search warrant on police determining probable cause after further investigation violated the Fourth Amendment

By John Wesley Hall, Jr.

A judge issued a search warrant for an apartment in a multiple unit structure but required that the police further investigate which of two apartments was allegedly involved in criminality; he did not require that the police return with this additional, necessary information, but instead issued the warrant on the condition that it not be executed until that additional information was obtained. The appellate court concluded that this process violated the constitutional requirement of the Fourth Amendment and N.J. Const. art. I, ¶ 7, that a search warrant be issued by a "neutral and detached magistrate" because the judge ceded his authority to the discretion of the police. State v. Marshall, 2008 N.J. Super. LEXIS 27 (January 29, 2008): Based upon what was presented at that time, and based upon the issuing judge's implicit determination that the police had failed to identify the particular apartment within 105 Wayne Avenue that was being used by Daniels, the warrant should not have issued...continue to full post

Full post as published by Fourth Amendment on February 03, 2008 (boomark / email).