On February 9, 2021, the New Jersey Supreme Court decided the Union County case of State v. Herby Desir. The principal issue concerned the scope of discovery that a defendant is entitled to when pursuing a Franks Hearing.
Justice Solomon wrote for the 4-3 majority in relevant part: In this appeal, the Court considers whether defendant Herby Desir is entitled to discovery regarding the controlled purchase of narcotics by a confidential informant (CI). Defendant was not charged in connection with that controlled purchase; however, the purchase formed the probable cause for issuance of a search warrant for defendant’s home, and execution of the search warrant led to charges against defendant for multiple drug and weapons offenses. The affidavit submitted by a detective from the Union County Prosecutor’s Office (UCPO) in support of the search warrant application stated that a CI, who had previously provided reliable information that led to arrests, had contacted the detective and claimed defendant stored and sold Methylenedioxy-N-ethylcathinone (sometimes referred to as Molly) at his home.
According to the affidavit, the detective intercepted two phone calls between the CI and defendant and overheard them discuss the sale of Molly and firearms. The affidavit stated that, during the second call, defendant told the CI to come to his house. The detective followed the CI to defendant’s residence and monitored the home until after the CI exited. Afterward, the detective and the CI met at a pre-arranged location, where the CI gave the detective a substance obtained from defendant. The affidavit stated that the “suspected ‘Molly’ obtained from defendant was submitted to the UCPO Laboratory where it . . . tested positive for Molly, a Schedule I controlled dangerous substance.”
In cases that reveal multiple issues and potential motions to pursue, it is almost always the best strategy to pursue a motion to suppress physical evidence. That is because there is an automatic right for the defendant to appeal an adverse ruling with regard to physical evidence suppression motions. Therefore, even if the trial court denies the suppression motion, the defendant preserves his ability to appeal. Moreover, he can use the waiver of this automatic appeal right as a bargaining chip in an effort to get the best negotiated resolution.