New Jersey Section 2C:104-5 – Arrest without warrant

New Jersey Law Allows Warrantless Arrest of Material Witnesses – What You Need to Know

Being arrested can be a scary and unsettling experience for anyone. But imagine being arrested when you haven’t even committed a crime. Unfortunately, that happens more often than you might think under New Jersey law Section 2C:104-5, which allows police to arrest “material witnesses” without a warrant in certain circumstances.

As a New Jersey criminal defense lawyer, I want to shed some light on this little-known law so that people understand their rights. I’ll explain what the law says, who it impacts, what the police need to arrest you, your rights after being arrested, potential defenses, and why reform may be needed. My goal is to educate through an empathetic lens—not to judge or lecture.

What Does The Law Actually Allow?

Under Section 2C:104-5, police have the power to arrest someone without a warrant if they have “reasonable cause to believe” that person is a “material witness” to a crime.

To break that down:

• “Reasonable cause to believe” means the police have some evidence that you witnessed a crime. They don’t need rock-solid proof, just a reasonable basis.
• “Material witness” means you have important information about the crime that could help the case. Minor details don’t count.
• “Without a warrant” means the police don’t need advance permission from a judge to arrest you.

In other words, the police can arrest you on the spot if they reasonably think you are an important witness.

Who Can Be Impacted By This Law?

Anyone who witnesses a crime could potentially be arrested under this statute. Even if you’re just an innocent bystander.

Some examples of material witnesses who have been arrested without warrants include:

• Bystanders who witness a violent assault or murder
• Passengers in a car where the driver committed a crime
• Family members or roommates who have information about a crime

As you can see, this law grants the police very broad arrest power over witnesses. You don’t need to be involved in the crime at all. The mere fact you saw something is enough.

What Do Police Need To Arrest You?

For the police to arrest a material witness without a warrant, they need:

1. Reasonable cause – Some evidence you have important information about a crime as a witness. Hearsay or hunches are not enough.
2. Fear you won’t be available – A reasonable belief that you might miss court dates or hide from testifying unless arrested. If police think you’d testify voluntarily, no arrest is allowed.

Police often claim witnesses might flee or avoid testifying to justify arrests. But in reality, many witnesses would testify willingly without being jailed if simply subpoenaed or asked politely by police.

Your Legal Rights After A Warrantless Arrest

If you are arrested as a material witness, you still have crucial legal rights:

1. The Right to a Prompt Hearing

Police must bring you before a judge “immediately” after the arrest so the judge can explain your rights, set bail conditions, and assign you an attorney if you can’t afford one.

2. The Right to Challenge Your Arrest

During the hearing, your state-appointed lawyer can argue several defenses to challenge the arrest’s validity:

• No reasonable cause – The police lacked sufficient evidence you had material information about the crime.
• No risk of unavailability – There were no legitimate fears you would avoid testifying if simply subpoenaed rather than jailed.
• Excessive bail – The bail terms set by the court were unfairly harsh given your circumstances.

3. The Right Against Self-Incrimination

Police often arrest witnesses to obtain information about a crime. But you retain your Fifth Amendment right to remain silent during questioning. In other words, you don’t need to answer any questions if you fear accidentally incriminating yourself.

The Need for Reform

While New Jersey’s material witness law serves legitimate purposes, it raises civil liberties concerns because:

• No judge approval needed – Police can jail witnesses without any advance court oversight, risking abuse of power.
• Pre-conviction punishment – Innocent witnesses suffer bail costs, job loss, and stigma without even being accused of a crime.
• Disproportionate impact – Low-income and minority communities bear the brunt of over-policing.

Many experts argue New Jersey should reform the law to better protect witness rights. Potential changes include:

• Requiring police to get a judge’s arrest warrant first based on sworn testimony. This adds oversight and accountability.
• Limiting warrantless arrests to extreme cases with rock-solid proof a witness would flee or tamper with evidence if not jailed immediately. This prevents unnecessary deprivations of liberty.
• Requiring police exhaustion of less restrictive options first, like subpoenas or written promises to appear. Arrest is an absolute last resort for uncooperative witnesses.