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Search Warrants in NJ Domestic Violence Cases Must Have Probable Cause

The Supreme Court of New Jersey recently issued an opinion requiring probable cause to issue a search warrant for weapons in domestic violence cases.


In State v. Hemenway, the Court found that the provision of the New Jersey Domestic Violence Act that authorizes the issuance of a warrant to search for weapons on less than probable cause violates the Fourth Amendment of the United States Constitution and the parallel section of the New Jersey Constitution.

In the underlying case, the victim, who was previously in a dating relationship with the defendant, filed a domestic violence complaint in the New Jersey family court for a Temporary Restraining Order (TRO) against the defendant.

What Happened

The complaint alleged that the defendant committed numerous offenses, including assault, criminal mischief (property damage), criminal trespass, and harassment. The victim alleged that the defendant made numerous threats to harm her and kill her family, and sought a TRO barring the defendant from having contact with her and her family and from possessing “firearms, knives & [a Taser].” During the hearing in Family Court, she testified that the defendant kept the “weapons,” i.e., knives/switchblades, in three cars and his apartment. The victim did not, however, provide information about “handguns.”

Following testimony, the Family Part judge entered an order for the issuance of a warrant and seizure of handguns, knives, and switchblades, since the victim testified that defendant was in possession of those things. Significantly, however, the judge did not make any further specific inquiries regarding the handguns and/or their location. Based on the judge’s order, police officers searched the defendant’s home and two vehicles and discovered drugs. No handguns or switchblades were found in the home or the vehicles. The defendant filed a motion to suppress the drug offenses based on a lack of probable cause.


The defendant appealed and the case then went to the Supreme Court of New Jersey, which reversed the judgment of the Appellate Division and noted that other jurisdictions have conformed their domestic violence statutory schemes to the Fourth Amendment, requiring probable cause for the issuance of a search warrant. The court found that in considering the issuance of a domestic violence search warrant for weapons, the Family Court judge should ask questions that will elicit the victim’s knowledge that the defendant possesses weapons and that the weapons will be found at a home or other location.

In other words, the court must have probable cause to believe that the weapons are located in the place to be searched. In Hemenway, the testimony before the Family Court judge was deficient.

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About this Author

Nicholas F. Pellitta attorney for commercial law, including contract review at Norris McLaughlin in New Jersey

Nicholas F. Pellitta, a Member of the firm, has substantial experience in a variety of legal areas in both federal and state courts. It is his goal to maximize efficiency for his clients by promptly analyzing their objectives, identifying necessary strategies, and implementing an appropriate course of action.

Nick provides a wide variety of litigation strategies and assistance for business clients in commercial matters, including contract review, insurance-related issues, and real property tax appeals.

In the area of higher education, Nick has represented colleges and...

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