In State v. Ross, ___ N.J. ___ (2024) (slip op. at 2), the New Jersey Supreme Court held that the State could obtain a bullet extracted from the defendant’s body during elective surgery pursuant to a search warrant.

In December 2017, the defendant, after having been denied re-entry into a bar or “speakeasy” in Camden, New Jersey, exchanged gunfire with law enforcement on Loius Street. Id. at ___ (slip op. at 3-4). After a brief foot chase, the officers arrested the defendant and transported him to Cooper University Hospital in Camden to obtain treatment for his gunshot wounds, including emergency surgery. Id. at ___ (slip op. 4). An X-ray located a bullet in the defendant’s abdomen, but the treating physician did not remove it during the surgery. Id. at ___ (slip op. at 5).

In 2022, while the defendant was awaiting trial on an attempted murder charge, he decided, on the advice of counsel, to “undergo elective surgery to remove the bullet that had remained lodged in his abdomen since the December 2017 incident.” Id. at ___ (slip op. at 5-6). Defense counsel coordinated with Cooper Hospital to have her investigator take possession of the bullet after the surgery. Id. at ___ (slip op. at 6). However, after the surgery the hospital’s director of security contacted law enforcement regarding the bullet and refused to turn it over to the defense investigator. Ibid.

The State applied for an ex parte search warrant to obtain from Cooper Hospital the bullet and any fragments removed from the defendant’s body during the elective surgery, and a Dyal subpoena seeking all the defendant’s medical records. Ibid. The trial court denied the State’s applications, holding that defense counsel was entitled to take possession of the bullet and any fragments according to the arrangements she made with the hospital staff before the surgery. Id. at ___ (slip op. at 7). “The trial court found that the discovery rules shielded the bullet from the State’s access because the bullet’s existence was the result of defense counsel’s ‘conscious litigation choice.’” Ibid. The trial court reasoned that “the defense is entitled to conduct an investigation and . . . to keep the results of that investigation to itself unless and until the defense chooses to use that information at trial.” Ibid. (quoting State v. Williams, 80 N.J. 472, 479 (1979)).

The Appellate Division reversed and remanded the matter to the trial court to determine whether probable cause existed to issue a search warrant and a Dyal subpoena. Id. at ___ (slip op. at 8). The Appellate Division concluded that the Fourth Amendment, not the Sixth Amendment right and reciprocal discovery rules, provided the appropriate legal framework because the State sought a search warrant and a subpoena to obtain physical evidence in a third party’s possession. Id. at ___ (slip op. at 8-9).

The New Jersey Supreme Court affirmed, finding that the bullet extracted from the defendant’s abdomen is physical evidence of the December 2017 events, and therefore a search warrant is the proper means for the State to obtain it. Id. at ___ (slip op. at 13). The Court held that “neither the Fifth nor the Sixth Amendment would preclude issuing a valid search warrant for the bullet in this case, and the trial court should have determined whether there exists probable cause on which to issue such a warrant.” Id. at ___ (slip op. at 17). The Court explained that physical evidence of a crime cannot “be shielded from the State simply by defense counsel obscuring the evidence under the cloak of the Sixth Amendment right to effective assistance of counsel.” Id. at ___ (slip op. at 16). “Notwithstanding the fact that defense counsel suggested the elective surgery, and irrespective of any agreements defense counsel believed she had with Cooper Hospital, the subject item is physical evidence and is reachable via search warrant if probable cause is established” Ibid. Additionally, the Fifth Amendment “privilege against self-incrimination is a personal one and cannot be asserted by or on behalf of third parties.” Ibid.

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