State v. McCann

Reproduced with permission from Muni-Mail.com.

Judge Issued Search Warrant for former Client - Evidence Admissible
State v. McCann

Posted on March 23, 2007

In today"s Appellate Division holding in State v. McCann, a municipal court judge issued a search warrant which targeted the property of a former, long-term client. The resulting search yielded evidence of criminal activity. The defendant sought to challenge the validity of the search warrant in that it had not been granted by a "neutral and detached magistrate", but rather by a judge with whom he had enjoyed a professional relationship for many years.

The Appellate Division declined to order suppression of the evidence in this case. The Court ruled that although a conflict existed in this case from a subjective viewpoint, objectively there was abundant evidence in the warrant application to support a finding of probable cause.

The Court went on to establish a new rule of procedure which will have prospective application only. In the future, if a defendant can provide a particularized and credible assertion of facts that objectively suggest an appearance of partiality based upon a prior relationship with the issuing judge, the search warrant will be invalidated. The same result will apply if the defendant can show he would have been entitled to a recusal by the judge based upon the criteria under Rule 1:12-1.

Click HERE to download a copy of State v. McCann.