                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5927-17T3

STATE OF NEW JERSEY,

                    Plaintiff-Respondent,

v.

D.H.,

          Defendant-Appellant.
______________________________

                    Submitted September 10, 2019 – Decided September 26, 209

                    Before Judges Messano and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 17-01-0086.

                    Jacobs & Barbone, PA, attorneys for appellant (Louis
                    Michael Barbone, on the brief).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (John Joseph Santoliquido, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant D.H. appeals from the denial of his motion for a Franks v.

Delaware1 hearing to challenge the veracity of the testimony that provided the

basis for a search warrant for weapons issued pursuant to the Prevention of

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant argues

that the fruits of that search should be suppressed. After reviewing the record,

we are satisfied that defendant's motion for a Franks hearing was properly denied

for the reasons set forth in the trial judge's thorough and well-reasoned letter

opinion.   We agree with Judge Waldman that defendant failed to make a

substantial preliminary showing that the testimony the court relied upon to issue

the PDVA search warrant contained a deliberate falsehood or exhibited reckless

disregard of the truth.

                                       I.

      On November 23, 2016, a judge issued a domestic violence temporary

restraining order (TRO) against defendant based on the ex parte telephonic

testimony of Z.C. Z.C. alleged that defendant had harassed her. During the

telephonic hearing, the judge inquired whether defendant possessed any



1
   438 U.S. 154 (1978); see also State v. Howery, 80 N.J. 563, 568 (1979)
(holding that under the New Jersey Constitution, "New Jersey courts, in
entertaining veracity challenges, need go no further than is required as a matter
of Federal Constitutional law by Franks v. Delaware").
                                                                         A-5927-17T3
                                        2
weapons.    After determining that there was probable cause to believe that

defendant possessed firearms in either of two residential premises, the judge

issued a search warrant pursuant to N.J.S.A. 2C:25-28(j). The execution of that

search warrant by police revealed firearms, other weapons, hollow-point

ammunition, a high-capacity magazine, and controlled substances.

      On December 15, 2016, a different judge held a plenary hearing to decide

whether to convert the domestic violence TRO into a final restraining order

(FRO). After hearing testimony from both defendant and Z.C., this judge

concluded that Z.C. failed to prove the predicate offense of harassment by a

preponderance of the evidence. The judge found that the heated encounters

between defendant and Z.C. were "domestic contretemps" not rising to the level

of domestic violence. On that basis, the judge denied Z.C.'s request for an FRO

and dismissed the TRO. So far as the plenary hearing record before us indicates,

the judge did not make explicit credibility findings with respect to the testimony

of either defendant or Z.C.

      Defendant was subsequently charged with multiple weapon and drug

offenses, including three counts of possession of a firearm by a "certain person,"

that is, a person who has previously been convicted of a predicate indictable

crime. N.J.S.A. 2C:39-7(b)(1). Defendant moved to suppress the evidence that


                                                                          A-5927-17T3
                                        3
had been seized pursuant to the PDVA search warrant. A third judge, Judge

Jeffrey J. Waldman, denied defendant's motion for a Franks hearing in a ten-

page letter-opinion. This Court denied defendant's motion for leave to file an

interlocutory appeal. Defendant thereafter pled guilty to one of the certain

persons gun charges pursuant to a plea agreement under which all remaining

charges were dismissed. Defendant was sentenced in accordance with his plea

agreement to a State Prison sentence with a five-year period of parole

ineligibility.

      Defendant in this appeal contends:

             POINT I

             WHERE A TRO AFFIANT LATER RECANTS
             THOSE MATERIAL FACTS NECESSARY TO
             ESTABLISH AN ACT OF DOMESTIC VIOLENCE
             AT   A    SUBSEQUENT     FRO   TRIAL,   A
             SUBSTANTIAL PRELIMINARY SHOWING OF
             FALSITY HAS BEEN ESTABLISHED AND A
             FRANK'S [sic] HEARING MUST BE CONVENED.

             POINT II

             DEFENDANT     MADE    A    SUBSTANTIAL
             PRELIMINARY   SHOWING    OF   MATERIAL
             FACTUAL     MISREPRESENTATIONS    AND
             FLASEHOODS BY THE DV APPLICANT BASED
             UPON HER SUBSEQUENT TESTIMONY AT TRIAL
             AND HER FRAUDULENT PROSECUTION OF A
             PATERNTIY    ACTION     AGAINST    THE
             DEFENDANT.

                                                                      A-5927-17T3
                                      4
                                       II.

        As the New Jersey Supreme Court has recently reaffirmed, "[a] search that

is executed pursuant to a warrant is 'presumptively valid,' and a defendant

challenging the issuance of that warrant has the burden of proof to establish a

lack of probable cause 'or that the search was otherwise unreasonable.'" State

v. Boone, 232 N.J. 417, 427 (2017) (quoting State v. Watts, 223 N.J. 503, 513-

14 (2015) (citation omitted)). It is well-established that a defendant is not

automatically entitled to a hearing to challenge the veracity of a supporting

affidavit. Rather, as the New Jersey Supreme Court explained in Howery, "[t]he

limitations imposed by Franks are not insignificant." 80 N.J. at 567. "First, [a]

defendant must make a 'substantial preliminary showing' of falsity in the

warrant." Ibid. (quoting Franks, 438 U.S. at 170). The defendant "must allege

'deliberate falsehood or reckless disregard for the truth.'" Ibid. Furthermore,

"the misstatements claimed to be false must be material to the extent that when

they are excised from the affidavit, that document no longer contains facts

sufficient to establish probable cause." Id. at 568 (citing Franks, 438 U.S. at

171).

        Typically, challenges to the veracity of a search warrant affidavit under

Franks and Howery occur in cases where law enforcement affiants are seeking


                                                                         A-5927-17T3
                                         5
a criminal-law search warrant. Defendant asks us to extend the Franks doctrine

to PDVA search warrants issued pursuant to N.J.S.A. 2C:25-28(j). Defendant

cites no authority for the proposition that a Franks challenge applies in these

circumstances. It is important to note, however, that the State does not appear

to contest that a PDVA search warrant can be challenged based on deliberate

and material misstatements made by a civilian who is applying for a domestic

violence TRO.

      We need not decide whether under the United States and New Jersey

Constitutions, a PDVA search warrant may be invalidated if it would not have

been issued but for a deliberate falsehood or reckless disregard for the truth by

a civilian who is seeking a domestic violence TRO. The State does not contest

that a PDVA search warrant predicated on such false testimony is

constitutionally defective and that the exclusionary rule and "fruit of the

poisonous tree" doctrine is properly invoked if the search warrant is found

defective on those grounds.

      In State v. Dispoto, the New Jersey Supreme Court made clear that

"'evidence seized pursuant to a defectively authorized search warrant' is

inadmissible in a subsequent criminal prosecution." 189 N.J. 108, 121 (2007)

(quoting State v. Cassidy, 179 N.J. 150, 159 (2004), abrogated on other grounds


                                                                         A-5927-17T3
                                       6
by State v. Edmonds, 211 N.J. 117 (2012)). In Dispoto, law enforcement

officers were directly involved in the process of obtaining the domestic violence

TRO—a circumstance that the municipal court judge hearing the TRO

application thought to be "odd." Id. at 115. The Court in Dispoto thus had no

occasion to consider whether the suppression remedy would apply as well with

respect to a defective TRO application in which there is no law enforcement

involvement.

      Any question concerning the applicability of the suppression remedy to

civilian TRO applications appears to have been resolved in State v. Hemenway.

__ N.J. __ (2019) (slip op. at 3-4). The Court suppressed the fruits of a search

authorized by a defective PDVA search warrant in a case where law enforcement

played no role in the TRO application. Hemenway, __ N.J. __ (slip op. at 35).

The Court definitively held that a search warrant issued pursuant to N.J.S.A.

2C:25-8(j), while civil in nature, must meet the probable cause threshold that

applies to all warrants under the Fourth Amendment and its state constitutional

counterpart, Article 1, par. 7. Hemenway, __ N.J. __ (slip op. at 16, 33).

      The facts in Hemenway did not present an opportunity for the Court to

consider whether the principles undergirding Franks apply to a search warrant

issued upon information contained within a civilian's application for a domestic


                                                                         A-5927-17T3
                                       7
violence TRO. We nonetheless read Hemenway to apply to any constitutional

defect in a PDVA search warrant. The probable cause requirement, of course,

is a cornerstone of Fourth Amendment protections and is explicitly set forth in

the text of the Fourth Amendment. 2 But so too is the requirement that all

warrants be "supported by Oath or affirmation." U.S. Const. amend. IV. We

therefore view a defect with respect to the truthfulness of a sworn TRO

application to be as fundamental, for purposes of constitutional analysis and

remedy, as a defect pertaining to the existence of probable cause. Indeed, a

finding of a material3 falsehood under the Franks standard would be tantamount

to a finding that probable cause did not exist to support the warrant.

      The Court in Hemenway at the very outset of its opinion emphasized that

"[n]o principle is more firmly rooted in our Federal and State Constitutions than

the right of the people to be free from unreasonable searches of their homes."

__ N.J. __ (slip op. at 2). The Court later expounded on that principle, noting,


2
   "The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized." U.S. Const. amend. IV (emphasis added).
3
   As noted above, under Howery, a misstatement is material only if, when
excised from the affidavit, "that document no longer contains facts sufficient to
establish probable cause." 80 N.J. at 568.
                                                                          A-5927-17T3
                                        8
"[w]hether a government official is armed with a criminal warrant or a civil or

administrative warrant, 'physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.'" Hemenway, __ N.J.

__ (slip op. at 16) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313

(1972)). We believe this foundational principle would be ill-served if any form

of court-authorized search of a home were based on sworn testimony that was

deliberately false or that exhibited a reckless disregard for the truth.

                                      III.

      We next address whether in this particular instance, defendant has

established the basis for a Franks hearing. Defendant points to inconsistencies

between Z.C.'s ex parte telephonic testimony in support of her TRO application

and her testimony at the plenary FRO hearing.            Defendant contends, for

example, that in her TRO application testimony, Z.C. claimed that defendant

had threatened physical violence against her by "balling up his fists." Defendant

argues that her testimony at the FRO plenary hearing contradicted her earlier

testimony noting, for example, that she made no mention that defendant had

balled up his fists. After reviewing the record on appeal, we find no basis to

disturb Judge Waldman's conclusion that that any discrepancies between Z.C.'s




                                                                           A-5927-17T3
                                         9
ex parte TRO application testimony and her subsequent FRO testimony were

minor and not sufficient to entitle defendant to a Franks hearing.

      We take this opportunity to make clear that testimony in support of a TRO

application is not to be deemed false for purposes of Franks analysis merely

because an application for an FRO ultimately is denied after a plenary hearing.

For one thing, the legal standard for obtaining an FRO—a preponderance of the

evidence—is higher than the probable cause standard needed to issue a TRO and

PDVA search warrant. Furthermore, an FRO judge at a contested plenary

hearing may have the benefit of the defendant's testimony and other evidence.

In this instance, as Judge Waldman aptly noted, defendant's plenary hearing

testimony cast the predicate act encounter in a new light, showing it to be

domestic contretemps rather than domestic violence.

                                     IV.

      Finally, we note that neither party has raised any issue arising from the

Supreme Court's recent decision in Hemenway, which was decided after the

briefs were filed in this appeal.    Neither party has sought leave to file a

supplemental brief. Our review of the record indicates that the PDVA search

warrant was issued upon a finding of probable cause in accordance with the rule

set forth in Hemenway.


                                                                       A-5927-17T3
                                      10
Affirmed.




                 A-5927-17T3
            11
