Eleuteri v. Richman

• Decision Date: 26 December 1956
• Docket Number: No. C--1596,C--1596
• Citation: 128 A.2d 743,43 N.J.Super. 303
• Parties: Harry ELEUTERI and Edward Danley, Plaintiffs, v. Grover C. RICHMAN, Jr., Attorney General of New Jersey, and Martin J. Queenan, County Prosecutor of Burlington County, Defendants.
• Court: New Jersey Superior Court

Page 303

43 N.J.Super. 303

128 A.2d 743

Harry ELEUTERI and Edward Danley, Plaintiffs, v. Grover C. RICHMAN, Jr., Attorney General of New Jersey, and Martin J. Queenan, County Prosecutor of Burlington County, Defendants.

No. C--1596.

Superior Court of New Jersey Chancery Division.

Dec. 26, 1956

James M. Davis, Jr., Mt. Holly, Powell & Davis, Burlington, for plaintiffs.

Stanley Cohen, Deputy Atty. Gen., for defendants.

HANEMAN, J.S.C.

Defendant Grover C. Richman, Jr., Attorney General of New Jersey, has moved for a summary judgment on the pleadings. For the purpose of this motion, the facts as pleaded in the complaint must be taken as true.

The complaint is in two counts. One relates to the plaintiff Harry Eleuteri, the second to the plaintiff Edward Danley. Although the details of the two causes of action vary somewhat factually, the issues raised are common to both. The complaint alleges that:

The plaintiffs are residents and citizens of the State of New Jersey and entitled to the benefits and rights guaranteed by the Constitution and laws of this State and of the United States. Each of them possessed a dwelling house within the County of Burlington and each of them was subjected to a search which was illegal, as violative of both the Federal and State Constitutions. As a result of the unlawful search of the plaintiffs' properties, there was obtained by an unlawful seizure certain papers, documents and other property which was relied upon by the defendants to obtain indictments against the plaintiffs, charging them with bookmaking, and which the State of New Jersey relies and will rely upon as evidence against them in a trial of the said indictments.

Although the Constitution of the State of New Jersey guarantees to the plaintiffs the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures and against the violation of that right, by Article I and section VII, the courts of law of this State have ruled that evidence seized in a search and seizure which violates the State Constitution is nonetheless admissible at a criminal trial of those who own said property. The effect of said construction by the law courts in effect denies to the plaintiffs their right to be secure against unreasonable search and seizure.

The sole remedy they have is a civil action for damages against the officers who trespassed upon their property and against their persons in violation of the constitutional guarantee, and this remedy is not adequate.

They demand a judgment declaring that the searches and seizures complained of constitute an unconstitutional invasion of their persons and property, that the defendants be required to make a full disclosure and accounting of each and every item of property taken from the premises of the plaintiffs, and that they either be required to return it to them or deliver it to this court for destruction. They further seek a permanent injunction restraining the defendants from offering in evidence at the trial of the above indictments any of the papers, documents or property seized as above set forth, and an injunction against any other and further similar searches and seizures in the future.

Plaintiffs further allege that:

The above acts constituted a violation of the rights guaranteed to them under the Fourth Amendment to the Constitution of the United States, and through the Fourteenth Amendment of the Constitution of the United States the violation is a taking of their liberty and property without due process of law. The defendants were obligated to take an oath to support the Constitution of the United States, and the threatened conduct of the defendants is indicative of an official conscience departing from the obligation of the oath required by the Constitution of the United States, and actually taken by the defendants.

By way of relief they demand an injunction, the effect of which would be to direct the official conscience of the defendants in such fashion as to be consistent with and in harmony with the due process of law under the Fourteenth Amendment, including the obligations of the defendants to observe the rights the plaintiffs enjoy under the Fourth Amendment to the Constitution.

We will deal first with the defendant's contention that the defendant Richman is immune from suit because he is the Attorney General of the State of New Jersey and that, therefore, he is the Alter ego of the State, and that as such, this suit is a suit against the State, since a judgment obtained will operate to control the action of the State.

The suit here brought does not deny the principle of the sovereign immunity from suit without its consent. This is not a suit against the State, since the gravamen of the action is the invasion of the personal and property rights of the plaintiffs by an officer of the State acting in an unconstitutional manner. The keeping of officers and agencies of the state within lawful bounds does not constitute a restraint upon State action. The cloak of immunity from suit is stripped from them when their acts constitute an illegal or unconstitutional violation of the plaintiff's rights. Abelson's, Inc., v. New Jersey State Bd. of Optometrists, 5 N.J. 412, 75 A.2d 867, 22 A.L.R.2d 929 (1950); Interstate Milk Handlers v. Hoffman, 34 N.J.Super. 356, 112 A.2d 574 (App.Div.1955); Howard Co. Jewelers v. New Jersey State Bd. of Optometrists, 133 N.J.Eq. 4, 29 A.2d 742 (Ch.1943).

It is, therefore, here held that this basis of the defendants' motion is without merit.

It now becomes necessary to examine plaintiffs' complaint in order to ascertain whether it states a cause of action upon which relief can be granted.

At the outset it must be conceded that under the so-called Weeks doctrine, established by the United States Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), that in a federal prosecution of a crime, the Fourth Amendment to the United States Constitution bars the use of evidence secured through illegal search and seizure, but in a prosecution in a state court for a state crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure in violation of the Fourth Amendment. In Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782, 1792 (1949), the court said:

'Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment. But the ways of enforcing such a basis right raise questions of a different order. How such arbitrary conduct should be checked, what remedies against it should be afforded, the means by which the right should be made effective, are all questions that are not to be so dogmatically answered as to preclude the varying solutions which spring from an allowable range of judgment on issues not susceptible of quantitative solution.'

'Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective. Weighty testimony against such an insistence on our own view is furnished by the opinion of Mr. Justice, then Judge, Cardozo in People v. Defore, 242 N.Y. 13, 150 N.E. 585. We cannot brush aside the experience of States which deem the incidence of such conduct by the police too slight to call for a deterrent remedy not by way of disciplinary measures but by overriding the relevant rules of evidence.'

The remedy here sought by way of injunction has been denied in applications to the federal courts. Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Doyle v. Webb, 237 F.2d 335 (3 Cir.1956).

It must also be recognized that courts of law in this State have declared evidence illegally seized in an illegal search to be admissible in the courts of this State, State v. Haines, 103 N.J.L. 534, 138 A. 203 (Sup.Ct.1927); State v. Lyons, 99 N.J.L. 301, 122 A. 758 (E. & A.1923); State v. Merra, 103 N.J.L. 361, 137 A. 575 (E. & A.1927); State v. Gould, 99 N.J.L. 17, 122 A. 596 (Sup.Ct.1923); State v. Gillette, 103 N.J.L. 523, 138 A. 381 (Sup.Ct.1927); State v. Guida, 118 N.J.L. 289, 192 A. 445 (Sup.Ct.1937), affirmed 119 N.J.L. 464, 196 A. 711 (E. & A.1938); State v. Alexander, 7 N.J. 585, 83 A.2d 441 (1951), and that such courts of law will not suppress the evidence so obtained on a motion. In re 301--317 Clinton Avenue, Newark, New Jersey, 35 N.J.Super. 136, 113 A.2d 208 (Cty.Ct.1955); State v. Mausert, 88 N.J.L. 286, 95 A. 991, L.R.A.1916C, 1014 (E. & A.1915).

The question of the adequacy of plaintiffs' remedy in a court of law is quite patently the primary matter to be considered in concluding whether relief may be accorded in this action. This action concerns itself not with a threatened violation but rather with an accomplished act. There is no factual allegation that the defendants contemplate a further illegal search and seizure, and this opinion will treat only of the other relief demanded and not of the relief against acts in futuro.

There are open to the plaintiffs several civil remedies in the courts of law for redress of an illegal search and seizure. First, an action of replevin or of trespass De bonis asportatis would lie, the original taking of possession by the defendants being unlawful or tortious Ab initio. Baron v. Peoples National Bank of Secaucus, 9 N.J. 249, 87 A.2d 898 (1952); Hebrew v. Pulis, 73 N.J.L. 621, 64 A. 121, 7 L.R.A.,N.S., 580 (E. & A.1906). Second, a civil action for trespass Quare clausum fregit.

The plaintiffs, however, conceive that the relief thus accorded to them is inadequate. It is difficult to conceive why an action in replevin or trespass is an...