The New Jersey Supreme Court continued in relevant part: The proper analysis for determining whether the State can obtain this physical evidence rests within the principles of search and seizure under the Fourth Amendment. Neither the Fifth nor the Sixth Amendment would preclude issuing a valid search warrant for the bullet in this case, and the trial court should have determined whether there exists probable cause on which to issue such a warrant.
The State applied for a search warrant, asserting that there was probable cause to believe that evidence related to the alleged offenses committed on December 3, 2017 was in Cooper Hospital’s possession. Instead of determining whether probable cause existed to issue the warrant, the trial court analyzed the bullet evidence through the lens of reciprocal discovery and determined that the State was not entitled to access the bullet because its extraction was precipitated by defense counsel’s litigation choice. That is the incorrect analysis. The bullet in this case is physical evidence related to a criminal offense. Defendant has been charged with attempted murder, among other offenses, and the bullet extracted from defendant’s abdomen is physical evidence of relevant events. A search warrant is therefore the proper means for the State to obtain the evidence.
Defendant argues that the constitutional protections offered by the Fifth and Sixth Amendments bar the State from obtaining the bullet. In State v. Knight, the Court held today that “compelling defense counsel to turn over in discovery an item in his possession that is physical evidence of a crime does not trigger” Sixth Amendment concerns. ___ N.J. ___, ___ (2024) (slip op. at 22). The Court further ruled that State v. Mingo, 77 N.J. 576 (1978), and State v. Williams, 80 N.J. 472 (1979), were inapplicable to the factual scenario in Knight because the materials at issue in Knight were physical evidence, not the product of the defense investigation.
Like the affidavits in Knight, the bullet in this case is nothing like the information the State sought in Mingo and Williams. Physical evidence of a crime cannot be shielded from the State simply by defense counsel obscuring the evidence under the cloak of the Sixth Amendment right to effective assistance of counsel. Notwithstanding the fact that defense counsel suggested the elective surgery, and irrespective of any agreements defense counsel believed she had with Cooper Hospital, the subject item is physical evidence and is reachable via search warrant if probable cause is established. Regarding the Fifth Amendment, as stated in Knight, the privilege against self-incrimination is a personal one and cannot be asserted by or on behalf of third parties. See ___ N.J. at ___ (slip op. at 24). Here, defendant is attempting to do just that.
In hindsight, the defendant probably would have chosen to have the elective surgery performed in another state or country where there would not have been jurisdiction for a New Jersey court to issue a search warrant. The defendant is likely now considering suing hospital employees for disclosing his personal medical information to the police before a subpoena or search warrant were issued.
