Bogish, Application of

• Citation: 173 A.2d 906,69 N.J.Super. 146
• Decision Date: 21 September 1961
• Docket Number: No. 132,132
• Parties: Application of Alexander Nicholas BOGISH.
• Court: Superior Court of New Jersey

Page 146

69 N.J.Super. 146

173 A.2d 906

Application of Alexander Nicholas BOGISH.

No. 132.

Superior Court of New Jersey

Law Division.

Sept. 21, 1961.

C. Zachary Seltzer, Camden, for petitioner.

Norman Heine, Camden County Prosecutor, Camden (Stephen M. Gretzkowski, Asst. Prosecutor, Camden, of counsel), for respondent.

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

Chief Justice Marshall first described the term Habeas corpus as a generic term. He said it encompassed, in addition to the great writ (Habeas corpus ad subjiciendum for an inquiry into the cause of restraint), the writ of Habeas corpus ad prosequendum. The Chief Justice noted, however, that when used in the Constitution, that is,

'When used singly--when we say the Writ of Habeas Corpus, without addition we most generally mean that Great Writ.' Ex parte Bollman, 4 Cranch 75, 95, 2 L.Ed. 554 (1807).

This great writ has suffered much by its abuse, yet it has had a great influence in the molding of those liberties which to us are sacred.

In this case the great writ was allowed and the matter proceeded to a plenary hearing. Counsel for petitioner was appointed and the trial transcript was supplied at the county's expense.

The petitioner was tried and convicted on an indictment which charged him with violation of R.S. 24:18--4, N.J.S.A., in that he had in his possession heroin. He was sentenced to a term of five to seven years, which judgment was entered on February 26, 1959. While he was confined to the New Jersey State Prison he addressed a letter to this court, which letter was treated as an application for a new trial and he was granted a hearing on April 23, 1959, at which time the application for a new trial was denied. He had privately engaged counsel for his trial and at the hearing for a new trial. He filed a petition for leave to appeal as an indigent in the Superior Court, Appellate Division. This was denied on September 19, 1959.

Another petition for Habeas corpus was filed in the Superior Court, Law Division, on October 20, 1959. This petition was denied by a formal but not reported opinion filed on October 26, 1959. He then filed a notice of appeal on November 6, 1959, which was followed by a petition for leave to appeal as an indigent, which petition was denied by the Appellate Division on December 17, 1959. He then filed a notice of appeal from the Appellate Division ruling, and on January 6, 1960 he filed a petition for leave to appeal as an indigent in the Supreme Court of New Jersey. This petition was also denied on March 14, 1960. A petition for writ of Certiorari, addressed to the Supreme Court of the United States, was denied on June 13, 1960, Bogish v. New Jersey, 363 U.S. 824, 80 S.Ct. 1265, 4 L.Ed.2d 1520 (1960). After this denial he petitioned the United States District Court, District of New Jersey, for a writ of Habeas corpus and invoked that court's jurisdiction under section 2241 of 28 U.S.C.A. Chief Judge Smith of that court filed a formal opinion and order in which he reviewed all the proceedings pursued by this relator. He denied the application, Application of Alexander Nicholas Bogish, Docket No. Civil 79--60, decided August 10, 1960 (not reported). Petitioner again petitioned the Superior Court Law Division, for a writ, and this was denied on December 7, 1960. Another application was made to the United States Supreme Court, and this was denied on July 19, 1961 (not reported officially but memo decision found at 366 U.S. 957, 81 S.Ct. 1947, 6 L.Ed.2d 1267). The petitioner has never denied that he was guilty of possession of heroin but insists that the officers involved were guilty of unreasonable search and seizure.

The following facts may be summarized from the trial testimony: On September 10, 1958, as the petitioner was alighting from a bus at the corner of Broadway and Lawrence Street in the City of Camden, a Camden city detective, who was accompanied by a federal agent, approached the bus exit. As the petitioner was leaving the bus the city detective observed a packet in one of his hands and as the police officer started to identify himself to the petitioner he observed that the petitioner started to move the hand containing the packet toward his mouth, whereupon he grabbed the petitioner's arm and the packet fell to the ground. As this incident occurred another federal agent, who was in the vicinity, observed a skirmish involving the petitioner and the detective and the other agent, each of whom was attempting to retrieve the packet from the ground. The city detective was able to retrieve the packet with the assistance of the agent. There was no attempt to hide the fact that the federal agents were in the area as a result of a previous arrangement. By whom this arrangement was made was never established. Neither the city detective nor the federal agents were armed with search or arrest warrants. The petitioner went to city hall peaceably. He was indicted by the Camden County grand jury and was tried on February 16, 1959. As related earlier, he was convicted and later granted a hearing on an informal application for a new trial, which was denied. The petitioner, on the occasion of the application for a new trial, confined the bulk of his argument, through counsel, to the veracity of the State's witnesses, and since he failed to take the witness stand at the original trial to deny the facts, this court decided that there was no justifiable reason to disturb that verdict.

The recent decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), has aroused the petitioner's desire to gain his freedom, and hence this present application for a writ of Habeas corpus. The petitioner has always contended that the evidence, which was obtained from him without the benefit of either a search or arrest warrant, was illegally obtained and violated his constitutional rights.

While the petitioner did not testify at the original trial he did take the stand on the return of this writ and for the first time he gave his version of what occurred on the day of his arrest. He stated that as he left the bus he was seized with one arm under his elbow and the other arm around his wrist, by a person who failed to identify himself, in which position he was held until another officer came over to assist. He contends now that the contraband was in his mouth and it was forcibly taken from his mouth by a federal officer named Bendon. The original trial minutes indicate that officer Bendon was a witness at the original trial and he came upon the skirmish after it had started, and his testimony was in conflict with that of the defendant. Agent Bendon corroborated the city policy officer as to the circumstances surrounding the recovery of the contraband. Significantly, during the cross-examination of agent Bendon by petitioner's counsel no reference was made or any indication given by the defense in his cross-examination that the petitioner at any time had the contraband in his mouth.

The petitioner has been incarcerated for the past two years and apparently has had a reading acquaintance with those federal decisions which have construed illegal search and seizure, and at this late date his testimony is beginning to fit the factual content of those cases which have resulted in freedom for certain defendants. The petitioner's testimony lacks trustworthiness, although if it had been given at the time of the trial it might have justified some consideration to justify the position he now takes.

At the original trial the admissibility of the evidence, assuming but not deciding that it was illegally obtained, was ruled by the decision of Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), which has since been overruled by Mapp v. Ohio, supra. Since the petitioner was undoubtedly acquainted with Wolf v. People of State of Colorado, supra, he attempted to fit the factual content of his case within the limits of Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233 (1956), in that federal agents were using city detectives to perform an act for them in the circumvention of due process. The Rea case, supra, and others similar thereto are inapposite. The federal officer or officers in this case did not arrest, did not seize the evidence, although one agent did corroborate the facts surrounding the arrest following the exposure of the illicit evidence. The principal purpose of the Federal Government's witness was to establish the content of the seized evidence.

The laws of this State afford every person convicted of crime a right to appeal, R.R. 1:2--7(a)(c), 1:2--8(a)(c), upon his compliance with the terms and conditions therein prescribed. This right of appeal does not justify the use of the great writ. Clifford v. Heller, 63 N.J.L. 105, 42 A. 155, 57 L.R.A. 312 (Sup.Ct.1899); State v. Osborne, 79 N.J.Eq. 430, 82 A. 424 (Ch.1911); In re Hall, 94 N.J.Eq. 108, 118 A. 347 (Ch.1922); In re Graham, 13 N.J.Super. 449, 80 A.2d 641 (App.Div.1951); In re Tremper, 126 N.J.Eq. 276, 8 A.2d 279 (Ch.1939), affirmed 129 N.J.Eq. 274, 19 A.2d 342 (E. & A.1940).

While the United States Supreme Court has relentlessly upheld the rights of defendants who have raised and established a violation of either or both the Fourth and Fifth Amendments, it has always been the rule of That court that where the defendant has knowledge of the unlawful seizure he must move for its suppression before trial. It is usually too late if the accused waits until the seized evidence has been offered at the trial. Segurola v. United States, 275 U.S. 106, 48 S.Ct. 77, 72 L.Ed. 186 (1927); United States v. Wernecke, 138 F.2d 561 (7 Cir. 1943), certiorari denied 321 U.S. 771, 64 S.Ct. 529, 88 L.Ed. 1066 (1944); Patterson v. United States, 31 F.2d 737 (9 Cir. 1929); Brink v. United States, 60 F.2d 231 (6 Cir. 1932) certiorari denied 287 U.S. 667, 53 S.Ct. 291, 77 L.Ed. 575 (1932); Harkline v. United States, 4 F.2d 256 (8...