State v. Herby v. Desir

SYLLABUS This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court. In the interest of brevity, portions of an opinion may not have been summarized. State v. Herby V. Desir (A-43-19) (083584) Argued October 13, 2020 -- Decided February 9, 2021 SOLOMON, J., writing for the Court. 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.” The affidavit did not state that the detective provided the CI with “buy money” with which to purchase the drugs. Based solely on that affidavit, a judge granted a no-knock search warrant for defendant’s home. Defendant moved to suppress the contraband seized during the execution of the warrant and for a Franks hearing, which is a hearing to challenge the veracity of an affidavit upon which a facially valid search warrant is based. Counsel asserted that defendant did not sell Molly from his home. Five months after filing his motion to suppress and for a hearing, defendant moved to compel discovery, seeking the initial investigation report, any proof of money provided to the CI for the controlled buy, laboratory reports, and a transcript or audio recording of the intercepted calls. 1  The trial court denied defendant’s motion to suppress and for a Franks hearing. Six months later, a different judge considered and denied defendant’s motion to compel discovery. Defendant pled guilty to possession of Molly with intent to distribute, reserving the right to appeal the denial of his motions. The Appellate Division reversed the denial of defendant’s motion to compel discovery and remanded for further proceedings. 461 N.J. Super. 185, 187 (App. Div. 2019). The court permitted defendant, after receiving discovery, “either to withdraw his plea and proceed to trial . . . or to accept his earlier conviction and sentence.” Id. at 194. Even though the indictment did not charge defendant with the sale of narcotics to the CI, the Appellate Division found that, under provisions of Rule 3:13-3(b)(1), the State should have automatically given defendant the laboratory report -- along with any police reports and video and sound recordings -- once the indictment was filed. Id. at 193. The Court granted certification. 240 N.J. 553 (2020). HELD: A defendant seeking discovery in connection with a Franks hearing may -- in the trial court’s discretion and on showing a plausible justification that casts reasonable doubt on the veracity of the affidavit -- be entitled to limited discovery described with particularity that is material to the determination of probable cause. The Court affirms and modifies the Appellate Division’s judgment and remands to the trial court for consideration under the standard adopted in this decision. 1. Rule 3:13-3(b)(1) codifies the criminal defendant’s right to automatic post-indictment discovery of the evidence the State has gathered in support of its charges, including “exculpatory information or material” and a list of other “relevant material[s].” To qualify as “relevant material,” the evidence must have a tendency in reason to prove or disprove a fact of consequence to the determination of the action. Courts have the inherent power to order discovery beyond the automatic discovery provisions of Rule 3:13-3(b) when justice so requires. But the discovery process is not a fishing expedition or an unfocused, haphazard search for evidence. One significant limit on defendants’ discovery rights is the chilling and inhibiting effect that discovery can have on material witnesses. Recognizing that CIs play an indispensable role in police work, New Jersey has a privilege against disclosing the identity of the informant. (pp. 12-14) 2. Defendants seeking to challenge the basis of a search warrant must make an evidentiary showing before a hearing will be granted: they must first establish by a preponderance of the evidence that the allegedly false statement in the affidavit was made either deliberately or in reckless disregard of the truth. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). In State v. Howery, the Court adopted and repeated the principles of Franks. 80 N.J. 563, 567 (1979). Under the Franks/Howery standard, a defendant’s “attack must be more than conclusory,” “supported by more than a mere desire to cross- examine,” and “accompanied by an offer of proof.” Franks, 438 U.S. at 171. (pp. 15-20) 2 3. In People v. Luttenberger, the California Supreme Court “adopt[ed] a preliminary showing requirement . . . that is somewhat less demanding than the” showing Franks requires “for purposes of discovery motions” challenging warrant affidavits “based on statements of an unidentified informant.” 784 P.2d 633, 646 (Cal. 1990). Specifically, the Luttenberger court held that, “[t]o justify in camera review and discovery, preliminary to a subfacial challenge to a search warrant, a defendant must offer evidence casting some reasonable doubt on the veracity of material statements made by the affiant.” Ibid. The court noted that, like requests for a Franks hearing, such discovery requests “should include affidavits supporting defendant’s assertions of misstatements or omissions in the warrant affidavit. Further, a defendant should, if possible, specify the information he seeks, the basis for his belief the information exists, and the purpose for which he seeks it.” Ibid. The Luttenberger court applied those requirements separately to discovery requests and motions for hearings, id. at 647, and then described what steps a trial court should take after a preliminary showing has been made, id. at 648. The Luttenberger court provided guidance about when, and, after redactions, what materials should be disclosed to defendants, to “assure the defendant of a judicial check on possible police misrepresentations, while preventing both unfounded fishing expeditions and inadvertent revelations of the identity of confidential police informants.” See ibid. (pp. 20-25) 4. The Court adopts the Luttenberger standard and will require a defendant to describe with reasonable particularity the information sought in discovery, sustained by a plausible justification “casting a reasonable doubt on the truthfulness of statements made in the affidavit.” Id. at 647. The discovery request should be buttressed by support for assertions of misstatements or omissions in the search warrant affidavit that are material to the determination of probable cause, the basis for believing that the information exists, and the purpose for which the information is sought. Application of this standard and the determination of whether it has been met in an individual case rest in the sound discretion of the trial judge, who will review the appropriately redacted discovery in camera. Only after such in camera review will the judge determine whether the discovery sought contradicts material facts set forth in the affidavit, should therefore be disclosed, and to what limitations or redactions the discovery might be subject. (pp. 26-28) 5. Applying that standard here, the Court first notes that the requested materials do not pertain to the “determination” of the charges against defendant, but rather to uncharged conduct; they are therefore not “relevant” within the meaning of Rule 3:13-3(b)(1), nor are they exculpatory. As a result, the materials were not subject to automatic disclosure under Rule 3:13-3(b)(1). (pp. 28-30) 6. The Court thus considers whether, to ensure the fairness of judicial proceedings, materials identified with reasonable particularity that fall beyond the scope of Rule 3:13- 3(b)(1), but may call into question the validity of a search warrant affidavit, are discoverable to defendants who have shown a plausible justification for requesting the materials. Defendant clearly met the standard of reasonable specificity as to the lab 3 report, which was described in the affidavit. Defendant barely met the standard of plausible justification, given the importance of the lab report to the warrant affidavit, the dependence of the charges on the execution of that warrant, and the affiant’s omission of any mention of “buy money” in the affidavit. In contrast, the other requested materials were broadly categorized, would not be amenable to necessary redactions, and were not identified with reasonable specificity. And the only justification offered in support of those materials was defendant’s blanket denial, which is not sufficient. The Court stresses, moreover, that defendant’s preliminary showing as to the lab report does not mean he is guaranteed access to that information. Rather, the court will have to review the report in camera. The ultimate discovery decision resides in the discretion of the trial court. The Court underscores its adherence to the Franks/Howery framework and reemphasizes the importance of preserving the confidentiality of informants. (pp. 30-35) 7. The Court acknowledges the error of the trial court in hearing defendant’s motion to compel discovery six months after hearing his motion to suppress evidence. The Court urges counsel to file these motions together and courts to schedule these motions close in time. The Court relies on the trial courts to hold defendants to the proofs required by the preliminary standard adopted in this decision and, when defendants make that requisite showing, to exercise their discretion, after an in camera review, in determining whether, and in what manner, discovery should be allowed. (p. 35) The judgment of the Appellate Division is AFFIRMED AS MODIFIED. JUSTICE ALBIN, dissenting, agrees that defendant is entitled to discovery as set forth in Luttenberger but finds that the majority violates the essential tenets of that standard, citing the majority’s announcement that a defendant’s sworn statement contradicting averments in a warrant affidavit will not be sufficient to cast “reasonable doubt” on the veracity of the affidavit and therefore to entitle him to an in camera hearing. That pronouncement, Justice Albin notes, presupposes that the averments in a police officer’s affidavit will always be truthful and that the averments in a defendant’s affidavit will always be false -- a notion soundly rejected by other courts. Unlike the Luttenberger court, Justice Albin adds, the majority also requires the defendant to have telepathic powers -- to always be able to identify the specific items of discovery withheld from him. Crafting an illusory particularity requirement that defendants cannot reasonably meet will throttle meritorious claims for discovery, in Justice Albin’s view. Justice Albin would remand to the trial court for application of the Luttenberger standard as it is and would require as a prerequisite to defendant’s discovery request that he support his claim by sworn statements in an affidavit or certification. Justice Albin would also make clear that a pre-Franks discovery motion must always be resolved before a court considers whether a defendant is entitled to a Franks hearing. CHIEF JUSTICE RABNER and JUSTICES PATTERSON and FERNANDEZ- VINA join in JUSTICE SOLOMON’s opinion. JUSTICE ALBIN filed a dissent, in which JUSTICES LaVECCHIA and PIERRE-LOUIS join. 4  SUPREME COURT OF NEW JERSEY A-43 September Term 2019 083584 State of New Jersey, Plaintiff-Appellant, v. Herby V. Desir, a/k/a Johnathan Desir, Defendant-Respondent. On certification to the Superior Court, Appellate Division, whose opinion is reported at 461 N.J. Super. 185 (App. Div. 2019). Argued Decided October 13, 2020 February 9, 2021 Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Steven A. Yomtov, of counsel and on the briefs). Alicia J. Hubbard, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Alicia J. Hubbard, of counsel and on the briefs). Patrick F. Galdieri, II, Assistant Middlesex County Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Angelo J. Onofri, Mercer County Prosecutor, President, attorney; Patrick F. Galdieri, II, of counsel and on the brief). 1  Elyla Huertas argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Elyla Huertas, Alexander Shalom, and Jeanne LoCicero, on the brief). JUSTICE SOLOMON delivered the opinion of the Court. A confidential informant (CI) made a controlled purchase of narcotics from defendant. That purchase formed the probable cause for issuance of a search warrant for defendant’s home. Execution of the search warrant led to charges against defendant for multiple drug and weapons offenses. Defendant was not charged with the underlying narcotics sale to the CI. Defense counsel filed a motion to suppress the evidence seized from defendant’s home pursuant to the search warrant and for a Franks hearing1 because defendant claimed he never sold Methylenedioxy-N-ethylcathinone 1 Named for the case in which the United States Supreme Court first ordered such a hearing, a Franks hearing is an evidentiary proceeding in which a defendant, upon a certain showing discussed later in this opinion, may challenge the veracity of an affidavit upon which a facially valid search warrant was based. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978); see also State v. Robinson, 200 N.J. 1, 7 (2009) (stating that when “a defendant challeng[es] the veracity of the allegations contained in an affidavit in support of a warrant . . . ‘if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request’” (quoting Franks, 438 U.S. at 156)). 2 (sometimes referred to as Molly) from his house. Five months later, defendant filed a motion to compel discovery. Defendant sought items related to the uncharged sale by defendant to the CI, including a laboratory report mentioned in the search warrant affidavit, any police paperwork, and recordings of the phone calls between defendant and the CI. The State did not provide the requested discovery. The trial court denied defendant’s motion to suppress and for a Franks hearing, and months later denied his motion to compel discovery. Defendant then pled guilty to second-degree possession of Methylenedioxy-N- ethylcathinone with intent to distribute. Defendant appealed. The Appellate Division determined that defendant was entitled to the discovery he requested and remanded to the trial court so that the defendant could elect to either withdraw his guilty plea or accept his earlier conviction and sentence. The issue in this appeal is whether defendant is entitled to discovery regarding the uncharged purchase of narcotics by the CI. We determine that a defendant seeking discovery in connection with a Franks hearing may -- in the trial court’s discretion and on showing a plausible justification that casts reasonable doubt on the veracity of the affidavit -- be entitled to limited discovery described with particularity that is material to the determination of 3 probable cause. We therefore affirm and modify the Appellate Division’s judgment and remand to the trial court for consideration under the standard adopted herein. I. A. We derive the facts of this case from the trial and appellate records, including the affidavit submitted by a detective from the Union County Prosecutor’s Office in support of the search warrant application. That affidavit stated that a CI, who had previously provided reliable information that led to arrests, had contacted the detective and claimed defendant stored and sold Molly at his home. According to the affidavit, the detective acted on that tip by conducting two consensual interceptions of telephone conversations between the CI and defendant, and he overheard the two 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 Union County Prosecutor’s Office Laboratory 4 where it was analyzed and tested positive for [Molly,] a Schedule I controlled dangerous substance.” The affidavit did not state that the detective provided the CI with “buy money” with which to purchase the drugs. Based solely on that affidavit, a judge granted a no-knock search warrant for defendant’s home, where the police recovered 125 ounces of Molly, a handgun, hollow point bullets, currency, and drug paraphernalia. B. A Union County grand jury thereafter indicted defendant on the following drug possession charges relating to Methylenedioxy-N- ethylcathinone: third-degree possession, N.J.S.A. 2C:35-10(a)(1); second- degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(4); third-degree possession with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7; and second-degree possession with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35- 7.1. The grand jury also charged defendant with second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a); and fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f). Defendant filed a motion to suppress the contraband seized by police during the execution of the search warrant and for a Franks hearing. Defense counsel argued that the search warrant affidavit “was so defective and/or made 5 with reckless disregard for truth that the judge who signed the warrant could not possibly have fairly evaluated the existence of probable cause.” In support of his motion for a Franks hearing, counsel asserted that, contrary to the allegations in the search warrant affidavit, defendant did not sell Molly from his home. Five months later, defendant filed a motion to compel discovery pursuant to Rule 3:13-3(b), seeking the detective’s initial investigation report, any proof of money provided to the CI for the controlled buy, laboratory reports, and a transcript or audio recording of the consensual intercept ions between defendant and the CI. Defendant reiterated his denial that he was selling Molly out of his home and argued he was not on a “fishing expedition” to determine the identity of the CI. The trial court first heard argument on defendant’s motion to suppress and for a Franks hearing. The court denied the motion, finding defendant had failed to meet his burden of demonstrating that any of the statements in the search warrant affidavit were untrue. Six months later, a different judge considered and denied defendant’s motion to compel discovery. The judge found defendant’s discovery request to be a fishing expedition to uncover the identity of the CI. Relying in part on the previous denial of defendant’s motion for a Franks hearing, the judge 6 concluded that further discovery relating to the validity of the warrant would be irrelevant to the charges defendant faced. Defendant pled guilty to second-degree possession of Methylenedioxy- N-ethylcathinone with intent to distribute. He reserved his right to appeal the denial of his motions to suppress and compel discovery. The trial court sentenced defendant to a seven-year prison term with three-and-one-half years of parole ineligibility. The remaining counts of the indictment were dismissed. C. The Appellate Division reversed the denial of defendant’s motion to compel discovery and remanded for further proceedings. State v. Desir, 461 N.J. Super. 185, 187 (App. Div. 2019). The Appellate Division concluded that, because defendant was not able to investigate anything in the detective’s affidavit by obtaining routine discovery that should have been automatically provided to him, defendant did not have a fair opportunity to pursue his motion to suppress the evidence seized during the search authorized by the warrant or to obtain a Franks hearing. [Id. at 194.] The Appellate Division permitted defendant, after receiving discovery, “either to withdraw his plea and proceed to trial . . . or to accept his earlier conviction 7 and sentence.” Ibid. (omission in original) (quoting State v. Cummings, 184 N.J. 84, 100 (2005)). The Appellate Division decided that defendant needed access to the lab report to “mount a viable attack on the validity of the search warrant.” Id. at 192. Thus, “the timing of the court’s consideration of the motion [to suppress] unduly prejudiced defendant.” Ibid. Acknowledging a defendant’s already heavy burden under Franks, the Appellate Division found the burden for this defendant “even more onerous because the State had still not responded to defendant’s request for specific information about the warrant application, including a copy of the laboratory report.” Id. at 190. The Appellate Division therefore held that considering the motion to compel discovery after denying the motion to suppress “did nothing to remedy the prejudice defendant had already suffered.” Id. at 192-93. Even though the indictment did not charge defendant with the sale of narcotics to the CI, the Appellate Division found that, under Rule 3:13- 3(b)(1)(C), the State should have automatically given defendant the laboratory report -- along with any police reports, R. 3:13-3(b)(1)(E) and (H), and video and sound recordings, R. 3:13-3(b)(1)(A) -- once the indictment was filed. 461 N.J. Super. at 193. As to the contention that defendant sought discovery solely to determine the identity of the informant, the Appellate Division noted 8 that “defendant did not object to receiving redacted versions” of the records. Ibid. Finally, the Appellate Division distinguished State v. Broom-Smith,2 noting that Broom-Smith involved a confirmatory drug analysis, while in this case, the detective had no first-hand knowledge that the item he received was Molly. Ibid. We granted certification. 240 N.J. 553 (2020). We also granted amicus curiae status to the County Prosecutors Association of New Jersey (CPA) and the American Civil Liberties Union of New Jersey (ACLU). II. The State asserts that the Appellate Division’s decision is contrary to Franks and State v. Howery3 since defendant did not meet the standard to challenge the veracity of the search warrant affidavit. The State also claims that Rule 3:13-3 does not entitle defendant to the information he seeks, redacted or otherwise, because the information is not relevant to the charges against him. The State further claims the Appellate Division’s holding risks disclosure of the identity of confidential informants and will therefore have a chilling effect on their use. The State relies on Broom-Smith for support and 2 406 N.J. Super. 228 (App. Div. 2009), aff’d, 201 N.J. 229 (2010). 3 80 N.J. 563, 571 (1979) (prospectively adopting the Supreme Court’s holding in Franks). 9 argues its result controls here. Finally, the State asks this Court to follow states which hold that when the credibility of an informant is at issue, but the judicial officer has been found truthful, the defendant’s interest in disclosure is less compelling. Amicus CPA reiterates many of the State’s arguments but emphasizes the importance of confidential informants and the “informer’s privilege.” The CPA contends that redaction and in camera review do not protect confidential informants because even general information may allow a seasoned drug dealer to deduce the informant’s identity. The CPA argues that the need for information in this case cannot outweigh the importance of protecting the identity of the confidential informant. Defendant argues for affirmance of the Appellate Division’s decision and expresses concern that a contrary result would mean “no one can hold accountable to the law those entrusted with the power to enforce the law,” because false affidavits could be presented to a magistrate without recourse. Defendant contends that the Franks standard is so high that defendants cannot challenge affidavits without full and complete discovery. Furthermore, defendant points to examples of discovery that must be provided “to allow the defense to . . . examine the veracity of the State’s witnesses’ . . . accounts.” Defendant therefore challenges the State’s reliance on the Franks/Howery 10 framework, arguing that existing case law allows “affidavits to exist in an impenetrable tower of secrecy.” Lastly, defendant claims that the information he seeks is relevant to the validity of the search warrant and challenges the State’s reliance on Broom-Smith, emphasizing that the failure to conduct a field test of the drugs in this case is a key distinction. Amicus ACLU supports defendant’s arguments and emphasizes that the court’s failure to permit him full discovery before proceeding with a hearin g on the evidentiary issue denied defendant a fair trial. The ACLU also argues that remedies such as in camera review of evidence and redactions can protect the rights of both CIs and defendants. III. The issue presented by this appeal is whether defendant is entitled to discovery regarding the underlying search warrant affidavit, even though he was not charged with the narcotics transaction referred to in that affidavit. Answering that question requires review of our rules governing criminal discovery generally, as well as applicable federal and New Jersey case law, including Franks, Howery, and Broom-Smith. We begin with our rules for discovery in criminal cases. 11  A. “In New Jersey, an accused has a right to broad discovery after the return of an indictment in a criminal case.” State v. Hernandez, 225 N.J. 451, 461 (2016). Our “open-file approach to pretrial discovery in criminal matters post-indictment” aims “[t]o advance the goal of providing fair and just criminal trials.” State v. Scoles, 214 N.J. 236, 252 (2013). Rule 3:13-3(b)(1) codifies the criminal defendant’s “right to automatic and broad discovery of the evidence the State has gathered in support of its charges.” State v. Stein, 225 N.J. 582, 594 (2016) (quoting Scoles, 214 N.J. at 252). That Rule “obligates the State to provide full discovery . . . when an indictment is returned or unsealed,” State v. Robinson, 229 N.J. 44, 72 (2017), “[e]xcept for good cause shown,” R. 3:13-3(b)(1). Full discovery, under Rule 3:13-3(b)(1), “shall include exculpatory information or material.” The Rule thus explicitly renders automatic the turnover of exculpatory evidence mandated by the United States Supreme Court’s holding in Brady v. Maryland.4 4 373 U.S. 83, 87 (1963) (holding that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”). 12  Significantly, the Rule further provides that post-indictment discovery “shall also include, but is not limited to, [a list of] relevant material[s] .” R. 3:13-3(b)(1). “Relevance is measured in terms of the opportunity of the defendant to present a complete defense.” Pressler & Verniero, Current N.J. Court Rules, cmt. 3.2 on R. 3:13-3 (2020). “To qualify as ‘relevant material,’ the evidence must have ‘“a tendency in reason to prove or disprove [a] fact of consequence to the determination of the action.”’” State v. Richardson, 452 N.J. Super. 124, 132 (App. Div. 2017) (alteration in original) (quoting State v. Gilchrist, 381 N.J. Super. 138, 146 (App. Div. 2005)). The kinds of items listed as discoverable include video and audio recordings, police reports, and lab reports. See R. 3:13-3(b)(1)(A), (C), (E), and (H). Further, a court’s “power to order discovery is not limited to the express terms of the automatic discovery provisions of Rule 3:13-3(b).” Richardson, 452 N.J. Super. at 132. Indeed, “courts have ‘the inherent power to order discovery when justice so requires.’” Ibid. (quoting State ex rel. A.B., 219 N.J. 542, 555 (2014)). “While discovery in criminal cases is broad,” however, “it is not unlimited.” Hernandez, 225 N.J. at 463. The discovery process is not “a fishing expedition.” State v. Broom-Smith, 406 N.J. Super. 228, 239 (App. Div. 2009), aff’d, 201 N.J. 229 (2010). It is not “an unfocused, haphazard 13 search for evidence.” State v. D.R.H., 127 N.J. 249, 256 (1992). And one “significant limitation on defendants’ discovery rights is the chilling and inhibiting effect that discovery can have on material witnesses who are subjected to intimidation, harassment, or embarrassment.” Ibid. As an example, New Jersey “recognize[s] that informants play ‘an indispensable role in police work’ and that, in consequence, the privilege against disclosing the identity of the informant ‘has long been considered essential to effective enforcement of the criminal code.’” State v. Williams, 356 N.J. Super. 599, 603 (App. Div. 2003) (quoting State v. Milligan, 71 N.J. 373, 381 (1976)). New Jersey law therefore protects the identity of confidential informants from disclosure in criminal proceedings by allowing a witness “to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the law[] . . . to a representative of the State or the United States.” N.J.S.A. 2A:84A-28; N.J.R.E. 516. Here, defendant’s discovery request, which pertains to a transaction with the CI, implicates those concerns as well as our recognition of the fundamental importance of broad discovery to the fairness of criminal proceedings. But the ultimate focus of defendant’s request -- his desire to challenge an alleged drug transaction that served as the basis for a search warrant but was not itself the 14 subject of any criminal charge -- raises additional considerations. Under federal and state case law, defendants seeking to challenge the basis of a search warrant must make an evidentiary showing before a hearing will be granted. We now turn to that case law, beginning with the United States Supreme Court’s decision in Franks v. Delaware. B. In Franks, officers took the defendant into custody for the assault of a fifteen-year-old girl. 438 U.S. at 156. At the same time, officers were investigating the sexual assault at knifepoint of another woman, Cynthia Bailey, who provided a detailed description of her assailant, including the clothes he wore. Ibid. Officers prepared an affidavit purportedly supporting probable cause to search the defendant’s residence. Id. at 157. The affidavit asserted that information provided by personnel at defendant’s workplace confirmed his “normal dress” to be consistent with the clothing worn by Ms. Bailey’s attacker. Ibid. A search warrant was issued, and a search of the defendant’s residence revealed the described clothing and a knife. Ibid. Before trial, the defendant’s counsel filed a motion to suppress the clothing and knife seized, claiming that “the warrant on its face did not show probable cause and that the search and seizure were in violation of the Fourth and Fourteenth Amendments.” Id. at 157-58. At the hearing on the motion to 15 suppress, defense counsel attacked the veracity of the warrant affidavits, claiming the purported sources of information in the affidavits never spoke to the affiants “and that, although they might have talked to another police officer, any information given by them to that officer was ‘somewhat different’ from what was recited in the affidavit.” Id. at 158. Defense counsel offered to produce the supposed sources of the affidavits’ information at the hearing on the motion to suppress. Ibid. The State of Delaware objected, asserting “that the court must decide petitioner’s motion ‘on the four corners’ of the affidavit.” Id. at 160. The trial judge agreed and admitted the evidence at the defendant’s trial for both assaults. Ibid. The jury convicted the defendant, and the Delaware Supreme Court affirmed. Ibid. The United States Supreme Court granted the defendant’s petition for certiorari to consider “whether the trial court had erred in refusing to consider his allegation of misrepresentation in the warrant affidavit.” Id. at 161. The Court reversed the defendant’s conviction, holding that where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. [Id. at 155-56.] 16  Thus, according to the holding in Franks, a defendant who requests a hearing to challenge a search warrant affidavit must first establish by a preponderance of the evidence that the allegedly false statement in the affidavit was made either deliberately or in reckless disregard of the truth. Ibid. Then, “with the affidavit’s false material set to one side, [if] the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Id. at 156. While Franks was pending before the United States Supreme Court, this Court granted the defendant’s petition in State v. Howery, 80 N.J. 563, 566 (1979). In that case, the defendant, Richard Howery, challenged a search warrant affidavit based on information supplied by a cooperating witness and evidence lawfully seized from a second cooperator’s residence. Id. at 572. The defendant pointed out two errors in the affidavit: (1) a reference to two “bundles” of heroin in a note signed by “Richie,” when the note was actually signed by “Rich” and did not mention “bundles,” which is a term used to “specify a quantity of heroin”; and (2) a statement attributed to a cooperator that the defendant stored heroin at his house when, in fact, the cooperator told the detective that it was stored by Jimmy Howery, the defendant’s brother. Id. 17 at 573-74. Relying on Franks, we affirmed the defendant’s conviction for heroin possession and distribution, concluding that both errors were mistakes rather than “the type of bad-faith, perjurious misconduct which would necessitate excision of the challenged paragraph from the affidavit.” Id. at 575. In affirming the defendant’s conviction, this Court recognized the significant limitations and burdens Franks places upon defendants. Id. at 567. In Howery, we adopted and repeated the principles of Franks, stating that a “defendant must make a ‘substantial preliminary showing’ of falsity in the warrant.” Ibid. (quoting Franks, 438 U.S. at 170). We reiterated that a defendant must first allege that the false statements in the warrant were made deliberately or in “‘reckless disregard for the truth,’” ibid. (quoting Franks, 438 U.S. at 170), and we explained that the defendant must “point[] out with specificity the portions of the warrant that are claimed to be untrue ,” ibid. We added that the defendant should support those allegations with “an offer of proof including reliable statements by witnesses.” Ibid. We also noted that the defendant’s allegations “must be proved by a preponderance of the evidence” and that the false statements in the affidavit “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. 18  The Appellate Division later relied upon Howery in deciding Broom- Smith, 406 N.J. Super. at 241, which is cited by the State here. The defendant in Broom-Smith challenged the municipal judge’s authority to issue a search warrant that relied upon an affidavit attesting