“To ensure that the State’s interests are properly advocated during an application for a complaint-warrant, a County Prosecutor shall have the authority to require that an assistant prosecutor consulted pursuant to Section 3.2 participate directly in the colloquy with the judge or other court official to whom an application for a complaint-warrant is submitted.”
The fact that this sub-section does not call for the assistant prosecutor participating in the colloquy to be placed under oath or for the joint application to be electronically or otherwise recorded is a cause for concern. While the state might argue that it is the judge’s function to place affiant’s under oath and to record the application procedure, you would still expect the state to remind their officers of the legal requirements that they may have to demonstrate were followed at a subsequent court hearing. Notably, When a search or seizure is made pursuant to a warrant, the probable cause determination must be made based on the information contained within the four corners of the supporting affidavit, as may be supplemented by sworn testimony before the issuing judge that is recorded contemporaneously. State v. Marshall, 398 N.J. Super. 92, 101 (App. Div. 2008). An otherwise insufficient affidavit cannot be rehabilitated by testimony at a suppression hearing concerning information not disclosed by the affiant when he sought the warrant. Id. A contrary rule would render the requirements of the Fourth Amendment and Article I, Paragraph Seven meaningless. Id. A search warrant issued in the absence of an oath or affirmation is invalid and requires suppression of evidence obtained pursuant thereto. State v. Gioe, 401 N.J. Super. 331, 340 (App. Div. 2008). The oath or affirmation requirement constitutes a strong reminder that the affiant has a special obligation to testify truthfully and that he is subject to punishment should he fabricate. Id. Noncompliance with the requirement cannot be considered a mere technical irregularity. Id. While it may be regrettable that a warrant which would have been justified by the known facts must fall, the failure to comply with the oath or affirmation requirement of the Constitutions permits no other result. Id.