Probable Cause and Bullet Evidence
March 17, 2024 - Posted by Larry E. Holtz, Esq.
In State v. Ross (3-5-2024), four years after defendant Ross exchanged gunfire with police officers, he underwent elective surgery to have the bullet that was lodged in his abdomen removed. “Defense counsel coordinated with the hospital where the surgery was conducted to have her investigator take possession of the bullet after the surgery. Post-surgery, however, the hospital’s director of security contacted law enforcement regarding the removal of the bullet and did not turn it over to the defense.”
The State subsequently sought a search warrant to obtain from Cooper Hospital the bullet and any fragments removed from defendant’s body during the elective surgery. The State also applied for a Dyal subpoena seeking all medical records that Cooper Hospital created regarding defendant’s treatment. Although the trial court denied the search warrant application and the State’s application for a subpoena, the Appellate Division reversed, holding that the trial court erred in applying discovery rules as opposed to search warrant principles to its analysis of the search warrant application.
Upon further appeal, the New Jersey Supreme Court held that “[t]he proper analysis for determining whether the State can obtain this physical evidence rests within the principles of search and seizure under the Fourth Amendment.” Said the Court:
"Instead of determining whether probable cause existed to issue the warrant, the trial court analyzed the bullet evidence through the lens of reciprocal discovery and determined that the State was not entitled to access the bullet because its extraction was precipitated by defense counsel's litigation choice.
We hold that to be the incorrect analysis. The bullet in this case is physical evidence related to a criminal offense. Defendant has been charged with attempted murder, among other offenses, related to the December 3, 2017, incident during which he allegedly fired a gun at police, prompting officers to return fire. The bullet extracted from defendant’s abdomen is physical evidence of that evening’s events. A search warrant is therefore the proper means for the State to obtain the evidence."
Accordingly, the Court remanded the matter to the trial court to determine whether the State has established probable cause for the issuance of the search warrant and the Dyal subpoena.
NOTE: A Dyal subpoena is an application to the court for the issuance of a subpoena to obtain medical records. State v. Dyal, 97 N.J. 229 (1984). In Dyal, the Court determined that, in light of the protection accorded to medical records due to the doctor-patient privilege, subpoenas for medical records are to be treated “as the functional equivalent of a search warrant” and issued only upon a showing of probable cause. Id., 97 N.J. at 241.
In State v. Ross (3-5-2024), four years after defendant Ross exchanged gunfire with police officers, he underwent elective surgery to have the bullet that was lodged in his abdomen removed. “Defense counsel coordinated with the hospital where the surgery was conducted to have her investigator take possession of the bullet after the surgery. Post-surgery, however, the hospital’s director of security contacted law enforcement regarding the removal of the bullet and did not turn it over to the defense.”
The State subsequently sought a search warrant to obtain from Cooper Hospital the bullet and any fragments removed from defendant’s body during the elective surgery. The State also applied for a Dyal subpoena seeking all medical records that Cooper Hospital created regarding defendant’s treatment. Although the trial court denied the search warrant application and the State’s application for a subpoena, the Appellate Division reversed, holding that the trial court erred in applying discovery rules as opposed to search warrant principles to its analysis of the search warrant application.
Upon further appeal, the New Jersey Supreme Court held that “[t]he proper analysis for determining whether the State can obtain this physical evidence rests within the principles of search and seizure under the Fourth Amendment.” Said the Court:
"Instead of determining whether probable cause existed to issue the warrant, the trial court analyzed the bullet evidence through the lens of reciprocal discovery and determined that the State was not entitled to access the bullet because its extraction was precipitated by defense counsel's litigation choice.
We hold that to be the incorrect analysis. The bullet in this case is physical evidence related to a criminal offense. Defendant has been charged with attempted murder, among other offenses, related to the December 3, 2017, incident during which he allegedly fired a gun at police, prompting officers to return fire. The bullet extracted from defendant’s abdomen is physical evidence of that evening’s events. A search warrant is therefore the proper means for the State to obtain the evidence."
Accordingly, the Court remanded the matter to the trial court to determine whether the State has established probable cause for the issuance of the search warrant and the Dyal subpoena.
NOTE: A Dyal subpoena is an application to the court for the issuance of a subpoena to obtain medical records. State v. Dyal, 97 N.J. 229 (1984). In Dyal, the Court determined that, in light of the protection accorded to medical records due to the doctor-patient privilege, subpoenas for medical records are to be treated “as the functional equivalent of a search warrant” and issued only upon a showing of probable cause. Id., 97 N.J. at 241.