Eleuteri v. Richman

• Decision Date: 28 April 1958
• Docket Number: No. A--96,A--96
• Citation: 26 N.J. 506,141 A.2d 46
• Parties: Harry ELEUTERI et al., Plaintiffs-Appellants, v. Grover C. RICHMAN, Jr., Attorney General of New Jersey and Martin Queenan, Burlington County Prosecutor, Defendant-Respondents.
• Court: New Jersey Supreme Court

Page 506

26 N.J. 506

141 A.2d 46

Harry ELEUTERI et al., Plaintiffs-Appellants, v. Grover C. RICHMAN, Jr., Attorney General of New Jersey and Martin Queenan, Burlington County Prosecutor Defendant-Respondents.

No. A--96.

Supreme Court of New Jersey.

Argued March 4, 1958.

Decided April 28, 1958.

James M. Davis, Jr. Mount Holly, for plaintiffs-appellant. (Powell & Davis, Mount Holly, attorneys).

David D. Furman, Deputy Atty. Gen. of New Jersey, for defendants-respondents (Grover C. Richman, Jr., Atty. Gen. of New Jersey, Attorney; David D. Furman, Trenton, of counsel; Harold J. Ashby, Deputy Atty. Gen., on the brief).

The opinion of the court was delivered by

WEINTRAUB, C.J.

On August 22, 1954, a member of the New Jersey State Police applied to the magistrate of the Municipal Court of Chesterfield Township for search warrants. His affidavits alleged just and reasonable cause to believe that gaming was taking place in violation of N.J.S. 2A:112--3, N.J.S.A. The premises were described respectively as 134 Second Street in the City of Bordentown and 54 East Main Street in the Township of Mansfield. The search warrants issued and were executed.

Plaintiffs filed a complaint in the Chancery Division of the Superior Court seeking among other things to suppress the product of the raids. Both plaintiffs alleged illegality in that (1) the magistrate was without authority to issue a warrant for a search beyond the territorial limits of his court; (2) no authority exists for a warrant in connection with gambling; and (3) the warrants do not 'particularly' describe the papers and things to be seized as required by Article I, paragraph 7 of the Constitution of New Jersey. In the course of his complaint, plaintiff Danley described the premises searched as 52 East Main Street (the warrant reads '54') but no charge of illegality by reason of that variance is specifically pleaded. Both plaintiffs allege indictments were procured on the basis of the papers and property seized and add that the State 'will rely upon the same at the trial of said indictment and in the absence of the same cannot prove a prima facie case under said indictment.'

Defendants obtained summary judgment on motion. 43 N.J.Super. 303, 128 A.2d 743 (Ch.Div.1956). The Appellate Division affirmed, 47 N.J.Super. 1, 135 A.2d 191, (1957), and plaintiffs are before us as of right because of the constitutional questions asserted.

The State concedes the magistrate was without authority to issue a warrant for a search beyond the territorial jurisdiction of his court, N.J.S. 2A:8--20, N.J.S.A., and we think the concession is correct.

We find no substance in the second point, that the search warrants were void for want of a statute expressly authorizing them with respect to violations of the gaming statutes. The authority is implicit in the judicial power and is acknowledged in the very provision of the Constitution upon which plaintiffs rely. A different view cannot be found in the circumstance that the Legislature has expressly authorized searches in some situations, largely in aid of regulatory measures not involving criminal liability, such as R.S. 4:1--23; R.S. 23:4--35; R.S. 23:10--20; R.S. 26:3--59; R.S. 55:11--16; R.S. 56:3--25 and 47, N.J.S.A.; or that the Legislature saw fit to regulate searches and seizures in the field of alcoholic beverages, R.S. 33:1--56 et seq., N.J.S.A., wherein we note, parenthetically, that a provision appears for the return of lawful property illegally seized under color of a warrant, R.S. 33:1--62, N.J.S.A., and certain abuses connected with searches are denounced as misdemeanors, R.S. 33:1--64 and 65, N.J.S.A. In Application of Berlin, 19 N.J. 522, 117 A.2d 610 (1955), in which a search warrant in connection with a gaming offense was sustained, no one suggested the issue here tendered, and doubtless because of the common acceptance of the proposition that the power is inherent.

As to the third objection, we fail to understand how the papers and things to be seized could be more explicitly described. And with respect to plaintiff Danley, if we assume he pleads illegality because of the variance in the street number, it is enough to say that if that claim be correct, it would add nothing decisive to the conceded illegality arising out of the magistrate's lack of authority.

In sum total, for the purpose of this appeal, illegality is clear, but equally clear is the fact that the trooper in good faith attempted to comply with the applicable mandate of the Constitutions, Federal and State, that a magistrate's decision intervene between the police and the search.

Plaintiffs recognize that this State has adhered to the rule that proof otherwise admissible will be received notwithstanding illegality of search and seizure. State v. Alexander, 7 N.J. 585, 594, 83 A.2d 441 (1951), certiorari denied 343 U.S. 908, 72 S.Ct. 638, 96 L.Ed. 1326 (1952); 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. Cortese, 104 N.J.L. 447, 139 A. 923 (E. & A.1927) affirming 4 N.J.Misc. 683, 134 A. 294 (Sup.Ct.1926); State v. Guida, 119 N.J.L. 464, 196 A. 711 (E. & A.1938), affirming 118 N.J.L. 289, 192 A. 445 (Sup.Ct.1937). They contend, however, that the rule is designed to avoid interruption of a criminal trial by collateral inquiries, and hence that a proceeding may be maintained in advance of the trial for the return or suppression of the matters seized. In jurisdictions which exclude evidence obtained by unreasonable search and seizure, an objection at trial may come too late. 2 Wharton, Criminal Evidence (12th ed. 1955), § 699, p. 705. See, for example, Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Reliance is also placed upon the fact that in several of our cases the denial of an application for the return of the seized property was upheld upon a finding that the search or warrant was lawful, without ruling upon the right to relief if illegality had appeared. Application of Berlin, supra (19 N.J. at page 531, 117 A.2d 610); State v. Giberson, 99 N.J.L. 85, 122 A. 724 (E. & A.1923); State v. Mausert, 88 N.J.L. 286, 95 A. 991, L.R.A.1916C, 1014 (E. & A.1915). But our rule of admissibility does not hinge upon the mode or time of an application to suppress but rather rests upon a policy decision that competent proof shall be available for the prosecution of the offense notwithstanding illegality in the seizure. State v. First Criminal Judicial District Court, 10 N.J.Misc. 715, 160 A. 672 (Sup.Ct.1932); State v. Black, 5 N.J.Misc. 48, 135 A. 685 (Ct.Quart.Sess.1926). It was undoubtedly because of this understanding of our cases that this court omitted to adopt Federal Rule 41(e), cited above, when our rules of court were promulgated.

Our rules being silent as to procedure, we pass the adjective aspect with, however, the observation that it is contrary to our basic thesis to parcel a controversy among several trial courts. An application to the court in which the indictments are pending is the course which here would have been consonant with our approach. We nonetheless accept the meritorious issue, as did the Appellate Division. That court reviewed the subject exhaustively and concluded that, although it believed illegally seized proof should be suppressed, the issue should be settled by us.

The leading advocate of the exclusionary doctrine is the United States Supreme Court which ruled for federal purposes that evidence seized in violation of the Fourth Amendment must be returned or suppressed upon suitable application. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). In Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949), the court held the Fourth Amendment applicable to the states by way of the due process clause of the Fourteenth, but that the rule of exclusion 'was not derived from the explicit requirements of the Fourth Amendment' but rather 'was a matter of judicial implication' and as such is not binding upon the states. The court added, however, that it had 'no hesitation in saying that were a State affirmatively to sanction such police incursions into privacy it would run counter to the guaranty of the Fourteenth Amendment.' (338 U.S. at page 28, 69 S.Ct. at page 1361). The court has declined to interfere with a state prosecution notwithstanding a claimed violation of the Federal Civil Rights Act, 42 U.S.C.A. § 1981 et seq. Stefanelli v Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); cf. Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954).

The Weeks case unsettled confidence in the rule of admissibility, but a majority of the states, many after searching reconsideration, has retained it. Wolf v. People of State of Colorado, supra (338 U.S. at page 29, 69 S.Ct. 1359, 93 L.Ed. 1782); Annotation 50 A.L.R.2d 531, 535 (1956).

Article I, paragraph 7 of our State Constitution of 1947 repeats the earlier guaranty of the Constitution of 1844, in turn borrowed from the Fourth Amendment. At the Constitutional Convention of 1947, an amendment was proposed:

'Nothing obtained in violation hereof shall be received into evidence.'

The issue was debated, with specific reference to the merits of the federal rule. One delegate added that in any event he questioned the advisability of incorporating an answer either way in organic law. The amendment was defeated by a vote of 46 to 25. 1 Convention Proceedings Record, 598, 608. We do not infer that the delegates intended thereby to embed our case law, but it is equally clear that the rule of exclusion is not the unmistakable wake of the constitutional provision. Had the Constitution decided the issue, we would not concern ourselves with the utility or consequences of the decision. The question, however, being unresolved by either the Federal or State Constitutions, we must strike a balance...