                             NOT FOR PUBLICATION WITHOUT THE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-1547-18T4

IN THE MATTER OF
THE SEARCH OF
219 EMMET STREET,
NEWARK, NEW JERSEY.
_______________________

                 Argued March 3, 2020 – Decided May 7, 2020

                 Before Judges Yannotti and Currier.

                 On appeal from the Superior Court of New Jersey, Law
                 Division, Union County.

                 Isaac Wright, Jr. argued the cause for appellant Daniel
                 Zuniga (Hunt Hamlin & Ridley, attorneys; Isaac
                 Wright, Jr., on the brief).

                 Milton Samuel Leibowitz, Special Deputy Attorney
                 General/Acting Assistant Prosecutor, argued the cause
                 for respondent State of New Jersey (Lyndsay V.
                 Ruotolo, Acting Union County Prosecutor, attorney;
                 Milton Samuel Leibowitz, of counsel and on the brief).

PER CURIAM

       Daniel Zuniga appeals from an October 5, 2018 order denying his request

under Rule 3:5-6(c) to compel the Union County Prosecutor's Office (UCPO) to
produce copies of documents related to a search warrant executed at his

property. The trial court found it lacked jurisdiction to consider Zuniga's request

because the State had not charged him with any crimes. Therefore, the court did

not consider whether Zuniga established "good cause" to obtain the documents

as an "aggrieved person" under the rule.

      Before this court, the State concedes the trial court had jurisdiction. We

agree. We therefore reverse and remand to the trial court for a review of the

application on its merits to determine whether Zuniga has established good

cause for the release of the search warrant and accompanying documents.

      While investigating a homicide in March 2018, the UCPO learned that the

victim had been at a nightclub in Newark shortly before being shot. The

property was rented to and managed by Zuniga and his brother-in-law. The

UCPO obtained a search warrant to recover surveillance footage from the

property. When the officers arrived at the premises to execute the warrant,

Zuniga let them in.

      Once inside, the officers observed a black handgun, several glassine

envelopes containing a substance that appeared to be heroin, and a sealed plastic

bag containing a substance that appeared to be marijuana. They also observed

several marijuana plants with high-powered grow lamps and a water filtration


                                                                           A-1547-18T4
                                        2
system enclosed in heavy plastic, and noted a strong odor of marijuana. They

contacted the Newark Police Department (NPD), who secured the scene and

obtained a search warrant. During the search, the NPD retrieved multiple guns

and rounds of ammunition, marijuana, cocaine, heroin, and drug distribution

paraphernalia.

       Several days later, Zuniga was arrested and charged in a federal criminal

complaint with: possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1); possession with intent to distribute cocaine, heroin and

marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); using and carrying

a firearm during and in relation to a drug trafficking crime in violation of 18

U.S.C. § 924(c)(1)(A)(i); and maintaining drug-involved premises in violation

of 21 U.S.C. § 856(a)(1). 1 Zuniga was not charged by the UCPO or in Essex

County.

       In August 2018, Zuniga's counsel spoke with the law clerk of the Union

County Superior Court judge who had signed the UCPO warrant, inquiring as to

the procedure to obtain a copy of the warrant and its accompanying

documentation, including the telephonic affidavit and police reports. Counsel

advised the judge that Zuniga was charged with federal offenses as a result of


1
    Zuniga was indicted by a federal grand jury on October 31, 2018.
                                                                         A-1547-18T4
                                        3
the search.    However, when counsel requested information regarding the

warrant, the federal authorities told him the UCPO warrant "was not relevant to

their case because they [were] relying on a subsequent warrant issued by an

Essex County Superior Court judge." Therefore, the federal government did not

have the warrant or the supporting documents in its possession. The judge

directed counsel to file a request with the UCPO and, if unsuccessful, to file the

proper application with the trial court.

      Thereafter, Zuniga filed an application with the trial court requesting an

order directing the UCPO to provide him with a copy of the search warrant,

related police reports, and other documents.

      On October 5, 2018, the court denied Zuniga's request. In its order, the

court found Zuniga could not seek the requested discovery items because (1) the

State had not charged him with any crimes, and (2) the court lacked jurisdiction

to order the UCPO to provide him with the requested discovery. The order refers

to a telephone conference, but we were not supplied with any transcripts.

      On appeal, Zuniga argues the trial court improperly denied his request for

copies of the search warrant, accompanying affidavit and other related

documents because (1) the court had jurisdiction to hear his application, and (2)




                                                                          A-1547-18T4
                                           4
he established good cause to pierce the privilege of confidentiality afforded to

search warrant documents as an "aggrieved person" under Rule 3:5-6(c).

      As conceded by the State, the trial court erred in finding it lacked

jurisdiction to entertain Zuniga's application.     Dual sovereignty principles

permit "[s]tates [to] possess sovereignty concurrent with that of the [f]ederal

[g]overnment, subject only to limitations imposed by the Supremacy Clause."

Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) (quoting Tafflin v. Levitt, 493

U.S. 455, 458 (1990)); see U.S. Const. art. VI, cl. 2.

      The dual sovereignty doctrine "recognizes that separate governmental

jurisdictions have concurrent power to proscribe criminal conduct and to

prosecute crime; and, further, each sovereign may exercise this power without

regard to whether particular conduct is or was the subject of separate criminal

proceedings undertaken by another jurisdiction." State v. Goodman, 92 N.J. 43,

51 (1983) (citing United States v. Lanza, 260 U.S. 377 (1922)); ibid.

(recognizing that dual sovereignty is firmly established in New Jersey) (citing

State v. Cooper, 54 N.J. 330, 338 (1969)).

      Therefore, although Zuniga was charged with federal offenses, New

Jersey retained its police powers to establish and enforce laws. This included




                                                                        A-1547-18T4
                                        5
the authority to consider Zuniga's application for the UCPO warrant and

accompanying documents under Rule 3:5-6(c).

      Because the trial court concluded it lacked jurisdiction to consider

Zuniga's application, it made no determination whether Zuniga was entitled to

production of the requested documents.           Nevertheless, Zuniga contends he

satisfied the requirements of the rule. We disagree.

      Under Rule 3:5-6(c), a search warrant and its related documents are

confidential, "except that the warrant and accompanying papers shall be

provided to the defendant in discovery pursuant to [Rule] 3:13-3 and available

for inspection and copying by any person claiming to be aggrieved by an

unlawful search and seizure upon notice to the county prosecutor for good cause

shown." (emphasis added).

      The State does not dispute that Zuniga is an aggrieved person. Indeed,

Zuniga operated a business at the location that was searched and was indicted

as a result of evidence seized pursuant to the search. The State does dispute that

Zuniga established good cause because he has not explained why he needs the

information he seeks, and he has not outlined what information was provided to

the trial court in support of his application.




                                                                          A-1547-18T4
                                         6
      Presumably, Zuniga seeks the UCPO search warrant and related

documents to aid in his defense against the federal charges. He asserts he cannot

obtain the materials as part of the federal discovery production because the

federal authorities do not have the documents. On remand, the trial court must

determine whether Zuniga has established good cause to order the UCPO to

produce the warrant and other requested materials.

      Reverse and remand for proceedings consistent with this opinion. We do

not retain jurisdiction.




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