In State v. Shlawrence Ross (A-34-22/087823) (Decided March 5, 2024), the Supreme Court of New Jersey held that prosecutors could obtain a bullet extracted from the defendant’s body via surgical procedure pursuant to a search warrant. According to the Court, the proper analysis for determining whether the State can obtain this physical evidence rests within the principles of search and seizure under the Fourth Amendment, and neither the Fifth nor the Sixth Amendment would preclude issuing a valid search warrant for the bullet.
Facts of State v. Ross
On December 3, 2017, Defendant Shlawrence Ross allegedly exchanged gunfire with police officers. Officers arrested Ross and transported him to Cooper University Hospital to obtain treatment for his gunshot wounds. The Defendant was later indicted for attempted murder and other offenses, and the prosecutor’s office asked the hospital whether any bullet or metal fragments were removed from the Defendant’s body. A hospital employee responded that an X-ray located a bullet in his abdomen, but the treating physician did not remove it.
In June 2022, on the advice of counsel, the Defendant underwent elective surgery to remove that bullet. Defense counsel coordinated with the hospital 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 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.
The trial court denied the applications, finding 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.” Concluding that the Fourth Amendment, rather than the Sixth Amendment and reciprocal discovery rules, was the appropriate legal framework, the Appellate Division reversed and remanded to the trial court to determine whether probable cause existed to issue a search warrant and a subpoena.
NJ Supreme Court Decision in State v. Ross
The New Jersey Supreme Court affirmed. “The proper analysis for determining whether the State can obtain this physical evidence rests within the principles of search and seizure under the Fourth Amendment,” Justice Pierre-Louis wrote. “The Appellate Division properly remanded the matter for a determination of whether probable cause existed to issue a search warrant to the hospital — a third party — that is in possession of physical evidence related to a criminal offense.”
The New Jersey Supreme Court first determined that a search warrant is the proper means for the State to obtain the evidence, and the trial court erred in analyzing the bullet evidence through the lens of reciprocal discovery
“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,” Justice Pierre-Louis explained “The bullet extracted from defendant’s abdomen is physical evidence of that evening’s events.”
The New Jersey Supreme Court went on to further conclude that the constitutional protections offered by the Fifth and Sixth Amendments to the U.S. Constitution do not bar the State from obtaining the bullet. According to the Court, physical evidence of a crime can’t 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.
“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,” Justice Pierre-Louis wrote.