probable cause for a warrant without this purportedly false
information, then there is no need for a hearing. State v.
Howery, 80 N.J. at 568; State v. Chaney, 318 N.J. Super.
- If a reviewing court determines that there was
insufficient probable cause to support the issuance of a
warrant, the search cannot be saved by demonstrating the
good faith reliance of the police on the warrant because
New Jersey has rejected the good faith exception to the
exclusionary rule. United States v. Leon, 468 U.S. 897, 913,
104 S.Ct. 3405, 3415, 82 L.Ed.2d 677 (1984); State v.
Novembrino, 105 N.J. at 159.
When the requested search intrudes on the attorney
client relationship, that special expectation of privacy leads
to a heightened Fourth Amendment scrutiny but premises
are not immune to a search warrant merely because they
contain lawyer’s offices. State v. Marshall III, 148 N.J. at
193.
The “knock and announce” rule, a common law
principle which requires the police to announce their
presence when executing a warrant, forms a part of the
reasonableness inquiry under the Fourth Amendment.
Wilson v. Arkansas, 514 U.S. 927, 929, 115 S.Ct. 1914,
1915, 131 L.Ed.2d 976 (1995); State v. Bilancio, 318 N.J.
Super. 408, 410 (App. Div. 1999), certif. denied, 160 N.J.
478 (1999).
A per se rule dispensing with the knock and announce
requirement for certain crimes is unconstitutional.
Richards v. Wisconsin, 520 U.S. 385, 394, 117 S.Ct. 1416,
1421, 137 L.Ed.2d 615 (1997). Rather, to use the “no
knock” option, the State must show that there is a
reasonable suspicion that knocking and announcing would
be dangerous, futile or would inhibit investigation of crime
by allowing the destruction of evidence. Id. The Fourth
Amendment does not hold officers to a higher standard
than that required in the no knock situation when the no
knock entry results in destruction of evidence. United
States v. Ramirez, 523 U.S. 65, 118 S.Ct. 992, 140 L.Ed.2d
191 (1998). When a no knock provision is erroneously
authorized, suppression is unjustified if the residence
searched was unoccupied. State v. Bilancio, 318 N.J. Super.
at 418-19. See also State v. Nunez, 333 N.J. Super. 42, 49-
51 (App. Div. 2000) (police did not have to knock on
unlocked back door before proceeding further into multi-
family dwelling).
Anticipatory search warrants are valid so long as they
are executed after probable cause arises and so long as the
affidavit in support of the anticipatory warrant specifically
relates the facts upon which the affiant relies in asserting
that the items to be seized will be at the specified place at a
specified later time. State v. Ulrich, 265 N.J. Super. 569,
575 (App. Div. 1993), certif. denied, 135 N.J. 304 (1994).A judge may issue a search warrant upon the sworn oral
testimony of an applicant who is not physically present.
The judge must contemporaneously record the applicant’s
sworn testimony if possible or take “adequate” longhand
notes summarizing the testimony of the applicant. A
search warrant may be issued if the applicant demonstrates
that probable cause exists and exigent circumstances
preclude obtaining a written warrant. N.J. Ct. R. 3:5-3(b);
State v. Valencia, 93 N.J. 126 (1983).III. WARRANTLESS SEARCHES
The federal and state constitutions both require the
prior approval of an impartial judicial officer before most
searches can be undertaken. State v. Hill, 115 N.J. 169, 173
(1989). As such, any warrantless search is prima facie
invalid unless the State can demonstrate that it falls within
one of the specific exceptions to the warrant requirement
created by the United States Supreme Court. Id. at 174.A. AbandonmentBecause the constitution provides protection only
against unlawful searches and seizures, a defendant must
establish that a reasonable or legitimate expectation of
privacy was invaded by government action. State v.
Marshall I, 123 N.J. 1, 66 (1991), cert. denied, 507 U.S. 929
(1993). A person who abandons property no longer has
any expectation of privacy in it and therefore, a warrantless
search of abandoned property cannot violate the
constitution. Abel v. United States, 362 U.S. 217, 240-41,
80 S.Ct. 683, 698, 41 L.Ed.2d 668 (1960); State v.
Hempele, 120 N.J. 182, 213 (1990); State v. List, 270 N.J.
Super. 252 (Law Div. 1990), aff’d, 270 N.J. Super. 169, 174
(App. Div. 1993); State v. Allen, 254 N.J.Super. 62, 67
(App. Div. 1992); State v. Lee, 245 N.J. Super. 441, 450
(App. Div. 1991); State v. Farinich, 179 N.J. Super. 1 (App.
Div. 1981), aff’d o.b., 89 N.J. 378 (1982).The search and seizure of abandoned property is
presumptively reasonable because the owner no longer has
an expectation of privacy in the property abandoned. The
test for determining abandonment is primarily one of
intent and therefore, is an objective one. An intent to
abandon a privacy interest in property may be inferred
from the words spoken, the acts done and other objective
facts. United States v. Wider, 951 F.2d 1283, 1285 (D.C.
Cir. 1991); United States v. Torres, 949 F.2d 606, 608 (2d
Cir. 1991). Abandonment is an ultimate fact or conclusion
generally based upon a combination of action and intent.