AG Modifications to CJ Reform Policies: Part 8

A footnote to the now-removed section 4.6.3 of the Attorney General Guidelines regarding Criminal Justice reform reads:

N.J.S.A. 2C:25-26(a), which is part of the Prevention of Domestic Violence Act and was not amended by the Bail Reform Law, provides: When a defendant charged with a crime or offense involving domestic violence is released from custody before trial on bail or personal recognizance, the court authorizing the release may as a condition of release issue an order prohibiting the defendant from having any contact with the victim including, but not limited to, restraining the defendant from entering the victim’s residence, place of employment or business, or school, and from harassing or stalking the victim or the victim’s friends, co-workers, or relatives in any way. The court may also enter an order prohibiting the defendant from having any contact with any animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household. In addition, the court may enter an order directing the possession of the animal and providing that the animal shall not be disposed of prior to the disposition of the crime or offense. The court may enter an order prohibiting the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S. 2C:39-1 and ordering the search for and seizure of any such weapon in any location where the judge has reasonable cause to believe the weapon is located. The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.

The use of the term “reasonable cause” is perplexing. The standard for the issuance of a search warrant is probable cause. While our courts recognize the lower standard of “reasonable suspicion”, it does not apply to the issuance of search or arrest warrants. Reasonable suspicion is all that is required for a brief motor vehicle stop or a limited pat-down search of the exterior of an individual who is suspected of concealing a weapon’s clothing. The muddling of the two standards might lend itself to the argument that something less than probable cause is all that is necessary for the issuance of a warrant in cases of alleged domestic violence. That argument flies in the face of the text of our federal and state constitutions, along with hundreds of years of federal and state case law.