Del Presto v. Del Presto

• Decision Date: 09 November 1967
• Docket Number: No. A--312,A--312
• Citation: 97 N.J.Super. 446,235 A.2d 240
• Parties: Rose DEL PRESTO, Plaintiff-Appellant, v. Anthony DEL PRESTO, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 446

97 N.J.Super. 446

235 A.2d 240

Rose DEL PRESTO, Plaintiff-Appellant, v. Anthony DEL PRESTO, Defendant-Respondent.

No. A--312.

Superior Court of New Jersey

Appellate Division.

Argued March 20, 1967.

Remanded April 11, 1967.

Decided Nov. 9, 1967.

[235 A.2d 241]

Herman E. Dultz, Newark, for appellant

Harold M. Savage, Bloomfield, for respondent.

Before Judges LEWIS, LABRECQUE and LEONARD.

The opinion of the court was delivered by

LEWIS, J.A.D.

In this suit by plaintiff wife for separate maintenance and incidental relief, the trial court, on motion of the defendant husband, suppressed certain evidence asserted to have been illegally obtained in violation of the Fourth Amendment to the United States Constitution. We granted plaintiff leave to appeal.

Involved are the evidentiary fruits of two searches: (a) a nighttime 'raid' by plaintiff and her private detectives on the apartment of defendant's alleged paramour, and (b) plaintiff's search of defendant's alleged 'private' business office and files. The opinion of the trial court, as reported in 92 N.J.Super. 305, 223 A.2d 217 (Ch.Div.1966), dealt with the evidence secured in the raid. In an unpublished letter opinion the attorneys for the parties were advised by the trial court that it would suppress 'all evidence secured by the plaintiff [235 A.2d 242] without legal right of the defendant,' but that the opinion would deal only with the raid because 'the same law applies to the illegally possessed personal property as applies to the evidence ascertained in the raid.'

The trial judge reached his determination based on the moving papers, supporting affidavits and the arguments of counsel. No testimony was taken and the court made no findings of fact. The issues raised on appeal are manifold and of constitutional import.

After oral argument we concluded that the record was so inadequate that we could not 'rationally evaluate the underpinning of the trial court's conclusion,' and thus we could not 'fairly assess the relative merits of the basic contentions urged by the litigating parties.' Accordingly, we remanded the matter to the trial court for specific findings of fact with respect to several enumerated questions.

The facts as developed on the remand are in substance as follows: The parties were married February 29, 1948. Shortly thereafter defendant became a licensed mortician of the State of New Jersey and entered into the business of conducting funerals. In 1955 he opened his current funeral

parlor at 185 Clifton Avenue, Newark, in a building owned by the litigants as tenants by the entirety. The structure consists of a basement and first floor devoted wholly to business use, and separate living quarters on the second floor which were 'very infrequently' used for conducting funerals. Also on the second floor is an office wherein the records of the business are kept in three file cabinets

The trial court specifically found that 'the office and the files therein were not ordinarily kept under lock and key and * * * that plaintiff as a wife and helper in the business had access to the office and files in performance of duties she undertook or was asked by defendant to undertake.' On cross-examination defendant admitted that some of his wife's dresses and other personal effects were, at the time of her alleged 'search' of the files, located in a closet in the office.

Plaintiff claims a partnership interest in the funeral business. Although the trial judge found that she had, from May 11, 1955 to June 14, 1965, a power of attorney as to the checking account and did some work in connection with the enterprise, he concluded that 'the funeral parlor business at that address (185 Clifton Avenue) was never operated by plaintiff and defendant as partners.'

Sometime in late 1964 or early 1965 plaintiff became aware of the fact that her husband was involved in what she suspected was an adulterous affair with a paramour. This information was apparently obtained by eavesdropping on telephone conversations between defendant and his girl friend. It was found by the trial court that, as the result of listening in on one of these telephone calls, plaintiff learned about the existence of the papers she later obtained from one of the file cabinets in the office. These included love letters and Christmas cards sent by the paramour to defendant, a pamphlet on oral contraceptives and pregnancy, and a receipt for an item of jewelry not given to plaintiff.

The Chancery Division further found that 'plaintiff did not have to make forcible entry into either the office or files

to secure the suppressed evidence.' Also, 'plaintiff did not have to, and did not make use of a key or keys to secure the suppressed evidence.' It should be noted that then, and even at the time of trial, both husband and wife resided at the Clifton Avenue premises

In late January 1965 plaintiff hired the Lynn Detective Bureau of South Orange, New Jersey, a private detective agency, to conduct an investigation of her husband's extra-marital relationship. The head of the bureau, one DeLorenzo, testified that plaintiff insisted upon a raid of the girl-friend's living quarters. Accordingly, the detectives rented an apartment in the same [235 A.2d 243] building and kept the parties under close surveillance.

On the night of March 4, 1965 defendant and the paramour went out, leaving the latter's six-year-old son home with a babysitter, a neighbor. They returned shortly after midnight and the babysitter left. At about 1 A.M., in response to a call from the private detectives, plaintiff arrived at the apartment building. What subsequently transpired is not altogether clear. It appears, however, that the detectives decided to enter the paramour's apartment and assaulted the door with their shoulders and feet. The door did not open, but it was bent both above and below the knob and lock. A tire iron was then applied to the area around the lock, but to no avail.

Relying heavily on the police 'captain's report,' submitted by patrolman George Sevilis at 3:15 A.M. on March 5, the trial judge made findings of fact:

'* * * that the police were summoned by a telephone call at 1:18 A.M. from * * * the tenant (paramour) in the apartment; that she told the police in the telephone call that some persons were attempting to push the apartment door in; that the police were also summoned by a telephone conversation from * * * (the babysitter) at 1:40 A.M. * * * that the police arrived very shortly after 1:30 A.M. * * * that two officers first came to the apartment and that in excess of two more joined them later after the 1:40 A.M. call; that they identified themselves to the besieged and the besiegers; that they gave no direction to anyone; that they did not

participate in the assault or seizure; * * * that the police announced themselves to the occupants of the apartment but did not in any way demand entry under the authority of their office.'

After the police arrived it was discovered that the door was jammed and could not be opened from either side. Eventually, at about 2 A.M., a cooperative effort resulted in opening the door. In response to the occupant's invitation, two police officers entered the apartment; they were followed by DeLorenzo and his cameraman, who were uninvited. The Chancery judge found that both defendant and the paramour objected to the taking of photographs in the apartment, and that, besides the photographs, 'no additional evidence was secured.' Plaintiff's counsel has supplied the court with four photographs, and has stipulated that 'No other evidence was taken from or in the apartment by the investigators, or anyone else * * *.'

One picture shows the paramour's head and left shoulder as she is apparently speaking to someone in the hallway from behind her partially open apartment door. Two show the paramour in her son's bedroom; in one she is sitting on his bed talking to the boy, in the other she is standing looking over her left shoulder toward the boy. The last photograph is one of defendant and two police officers who entered the apartment. In each picture the parties are fully clothed and well-groomed; defendant is wearing a tie and business suit; the girl friend appears to be in a dark dress with lace trim, wearing high-heeled shoes and jewelry.

The trial court suppressed these photographs and the various papers found in the office files.

THE 'RAID'

The opinion of the Chancery Division stated the question to be whether Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), 'applies to civil as well as criminal cases.' 92 N.J.Super., at p. 305, 223 A.2d at p. 217. That is not, however, the critical issue. It could be assumed that Mapp

applies to civil litigation, but here the central question remains whether plaintiff, acting alone or through nongovernmental agents, violated any rights protected by the Fourth Amendment. The trial judge recognized the problem when he said

'The Fiat upon which it is sought to limit the impact of Mapp to governmental [235 A.2d 244] seizures only and not to evidence illegally gathered by private persons is the holding in Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), that the Fourth Amendment is not involved in nongovernmental intrusions.' 92 N.J.Super., at p. 306, 223 A.2d at p. 217.

But he concluded that One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), in effect overruled Burdeau, citing Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), and Williams v. United States, 282 F.2d 940 (6 Cir. 1960). His opinion does not consider the problem of standing; it assumes, without giving reasons, that Mapp should govern a matrimonial action if Burdeau does not control; and it fails to explicate the standards by which it adjudged the searches as unreasonable.

Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, 751 (188...