State v. Lowry

• Citation: 230 A.2d 907,95 N.J.Super. 307
• Decision Date: 09 May 1967
• Docket Number: No. 1131,1131
• Parties: STATE of New Jersey, Plaintiff, v. Alan LOWRY and Benjamin Ferguson, Defendants. In re STATE of New Jersey, Complainant, in the Interest of B, Juvenile. Ind. (Criminal)
• Court: Superior Court of New Jersey

Page 307

95 N.J.Super. 307

230 A.2d 907

STATE of New Jersey, Plaintiff, v. Alan LOWRY and Benjamin Ferguson, Defendants In re STATE of New Jersey, Complainant, in the Interest of B, Juvenile.

Ind. No. 1131.

Superior Court of New Jersey, Law Division, (Criminal).

May 9, 1967.

Elmer J. Herrmann, Jr., Asst. Prosecutor, for the State (Brendan T. Byrne, Essex County Prosecutor).

Peter S. Valentine, Newark, for Alan Lowry (Glickman & Valentine, Newark, attorneys).

Charles B. Helfgott, South Orange, for Benjamin Ferguson.

Elliot M. Baumgart, for Juvenile B (Newark Lawyer Project).

SCHAPIRA, J.C.C. (temporarily assigned).

Alan Lowry and Benjamin Ferguson, adults, and B, a juvenile aged 17, move to suppress evidence, R.R. 3:2A--6, seized as the result of an allegedly illegal search of a parked car in which they were seated.

Defendants Lowry and Ferguson are charged with unlawful possession of a narcotic drug, to wit, marijuana, N.J.S.A. 24:18--4. Juvenile B is charged with an offense under the Juvenile Delinquency Act, N.J.S. 2A:4--14(1)(a) N.J.S.A., in the Essex County Juvenile Court, the disposition of which is awaiting the outcome of this motion.

All defendants urge the court to suppress the evidence--marijuana cigarettes and a handkerchief filled with pieces of chopped tobacco leaves, identified as marijuana--because the search of their person and the car was warrantless and not incident to a valid arrest.

The issues presented are (a) whether the Fourth Amendment right is applicable to a juvenile, and (b) if the answer is in the affirmative, is the motion to suppress rule, R.R. 3:2A--6, the proper method of implementing that right.

No authority has been cited by counsel nor has research disclosed any officially reported precedent dealing precisely with these issues in this State.

The State did not oppose the procedural aspect of the juvenile's motion to suppress, and it agreed with the court (also with the express consent of counsel for both adult defendants) to hear the entire matter In camera to insure privacy for the juvenile, R.R. 6:9--1, and to avoid hearing any portion of a juvenile matter in a courtroom regularly used for adult criminal cases, R.R. 6:2--6.

I

The Fourth Amendment to the United States Constitution provides:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to to be searched, and the persons or things to be seized.'

This constitutional mandate is a fundamental right of all Persons regardless of age. Urbasek v. People, 76 Ill.App.2d 375, 222 N.E.2d 233, 238 (App.Ct.1966.) The reason some basic constitutional rights, such as indictment by grand jury, right to speedy and public trial and right to trial by jury, were not applied with respect to juveniles was on the basis that the juvenile court was established as a civil court under a guardianship philosophy, the theory being that the interests of society and the minor would be served by a solicitous attitude in the juvenile's care and training. The State assumes the position as Parens patriae, and under its protective and rehabilitative ideals informal and confidential procedures developed, vouchsafing constitutional safeguards only when required by the concept of due process and fair treatment--not by direct application of the constitutional clauses. Pee v. United States, 107 U.S.App. D.C. 47, 274 F.2d 556 (D.C.Ct.App.1959). It is noteworthy that Pee decision referred to rights guaranteed by the Fifth, Sixth and Eighth Amendments, constitutional protections afforded persons involved in criminal prosecutions, thereby necessitating their application to a juvenile proceeding (noncriminal in nature) through the concept of due process. But the Fourth Amendment, not limited to persons accused of crime, should be interpreted to be applicable to all persons in accord with its terms, thereby rendering the media of due process unnecessary in granting that right to a juvenile.

Even adopting the view that a juvenile will realize constitutional rights only if required under due process of law and fair treatment, it appears that the evolution of the Fourth Amendment right leads to the same result.

The beginning concepts of illegal search and seizure were dealt with in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), wherein the court stated:

'It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; * * * it is the invasion of his Indefeasible right of personal security, personal liberty, and private property * * *.' (at p. 630, 6 S.Ct. at p. 532, emphasis added)

Less than 30 years later the exclusionary rule was born in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), applicable only to the federal courts, wherein the court stated that the protection of the Fourth Amendment 'reaches all alike, whether accused of crime or not * * *.' (at p. 392, 34 S.Ct. at p. 344) The rule subsequently became applicable to the states through the due process clause of the Fourteenth Amendment. Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

'The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause.' (at p. 27, 69 S.Ct. at p. 136)

To the extent Wolf refused to extend the Fourth Amendment right to state prosecutions wherein the evidence was illegally obtained by state officials, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), overruled it, applying the whole of the Fourth Amendment to the States through the Due Process Clause.

'Today we once again examine Wolf's constitutional documentation of the Right to privacy free from unreasonable state intrusion, and * * * are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that Basic right, reserved to All persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.' (at pp. 654--655, 81 S.Ct. at p. 1691, emphasis added)

The historical development clearly indicates that the rule is not only a basic right to All persons to privacy, security and liberty, whether accused of a crime or not, but is fundamental to the concept of due process, a principle precluding adjudications based on methods that offend a sense of justice and one that must endure if our society is to remain free. To insure a factfinding process which at least measures up to the essentials of fair treatment, State v. Carlo, 48 N.J. 224, 236, 225 A.2d 110 (1966), the constitutional safeguard enunciated in the Fourth Amendment must be applicable to juveniles.

The exclusionary rule of Mapp has become recognized as emphasizing a philosophy of governmental deterrence--a protection against official abuses--absenting from the limelight the basic right, itself. Such emphasis yields to theories espoused by some authorities that a juvenile hearing is only concerned with seeking the truth, and evidence, whether obtained lawfully or not, must be admissible for the avowed purpose of rehabilitating the youthful offender. The exclusionary rule, however, is the 'correlative duty' of the government to the 'constitutional right' of the individual to be secure from unreasonable searches and seizures. It is the essential ingredient of the constitutional guarantee of the right of privacy, providing a remedy for a preexisting constitutional right, State v. Johnson, 43 N.J. 572, 589, 206 A.2d 737 (1965), and it would best serve understanding to state that the exclusionary rule is a 'deterrent safeguard,' indicating it is more than a discouragement to improper police procedure; it is the force safeguarding the true substance of the rule-- the individual's right as embodied in the Fourth Amendment.

This constitutional provision perpetuates principles of humanity and liberty implanted in our mores and institutions. It is a basic right given to all persons which should not be undermined by the rehabilitative philosophy adopted by our Legislature and courts. Praiseworthy as that philosophy may be, the court is sensitive to the historical development of this constitutional mandate and the present trend toward granting a juvenile more of his basic freedoms, ever alert to prevent infringement of constitutional rights so bound up in order and society by well-meaning efforts of the Legislature and judiciary. Good intentions are not enough to deprive a juvenile of due process. Application of Gault, 99 Ariz. 181, 189, 407 P.2d 760,766 (Sup.Ct.1965), probable jurisdiction noted 384 U.S. 997, 86 S.Ct. 1922, 16 L.Ed.2d 1013 (1966), Kansas Association of Probate and Juvenile Judges granted leave to join appellee's brief, 385 U.S. 965, 87 S.Ct. 498, 17 L.Ed,2d 431 (1966). ^*

It appears more reasonable that the Juvenile Court Act was promulgated, not to deprive a juvenile of his rights but to ameliorate the harshness of the criminal law. True, all the niceties of the evidentiary rules and technicalities of procedure may be relaxed in ascertaining the 'truth' in a juvenile hearing, yet substantial rights cannot be so disregarded. As stated in In Re Contreras, 109 Cal.App.2d 787, 241 P.2d 631 (D.Ct.App.1952):

'* * * it cannot seriously be contended that the constitutional guarantee of due process of law does not extend to minors as well as to adults.' (109 Cal.App.2d, at p. 791, 241 P.2d, at p. 634)

Is it not more outrageous for the police to...