State v. Black

• Decision Date: 16 December 1926
• Citation: 135 A. 685
• Parties: STATE v. BLACK et al.
• Court: New Jersey Supreme Court

135 A. 685

STATE

v. BLACK et al.

Court of Quarter Sessions of New Jersey, Essex County.

Dec. 16, 1926.

Roy Black and others were indicted for conspiracy. On a motion to suppress the use of certain books as evidence. Motion denied.

William A. Wachenfeld and Harold Simandl, both of Newark, for the motion.

J. Victor D'Aloia, of Newark, for the State.

FLANNAGAN, J. On the 4th day of October, 1926, certain county detectives, acting under the prosecutor of the pleas, arrested certain of the defendants at their respective places of business and there seized the minutes and other books in their possession of the "Federation of Kosher Butchers Association," a corporation organized under the laws of New Jersey. The detectives held a warrant for the arrest of the defendants individually, who stand indicted by the grand jury for conspiracy. Such books were in the defendants' possession as recording and financial secretary respectively of such corporation.

The prosecutor of the pleas, who has possession of these books, proposes to use them on the trial of the indictment as evidence against the defendants tending to support such charge. The corporation now comes into court and moves by petition to prevent the use of such books as evidence by an order directing their return and prohibiting their use, on the ground that they were obtained l>y illegal search and seizure in violation of paragraph 6 of article 1 of the Constitution of the state of New Jersey. The essence of the application is to prevent the use of the books as evidence. If possession of the books were the only object sought, resort could and would be had to the usual means of recovering personal property wrongfully taken or held, and no excuse for proceeding by motion in a criminal court could be found.

Testimony was taken upon the motion and an issue of fact raised, but, assuming for the moment that petitioner has the necessary standing to move in this action and that the books were seized by unreasonable search and seizure in violation of the constitutional provision, the question still remains as to whether the petitioner is entitled to an order directing their return and for their suppression as evidence herein.

The petitioner cites in support of its motion cases decided by the United States Supreme Court, all of which, taken together, establish that under 'the provisions of the Fourth Amendment of the United States Constitution against unreasonable searches and seizures, the federal court will on motion before trial order the return and suppression as evidence of books and papers of a private corporation seized by an officer of the government by unreasonable search and seizure, and, further, will on the trial, without any motion previous to the trial, exclude them as evidence if it appears uncontradicted by the testimony that they were so obtained, and, further, that evidence once obtained by the government by unreasonable search and seizure must remain effectively suppressed against any further subpoena or search warrant unless such subpoena or search warrant is based upon evidence obtained independently of the articles ordered returned or the information illegally obtained, even though holding that no privilege attaches to books and papers of a private corporation under the Fifth Amendment against self-incrimination either in favor of the corporation or the officers thereof or in favor of an officer having acquired personal ownership thereof. Silverthorn Lumber Co. v. V. S., 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 310; Wheeler v. U. S., 226 U. S. 478, 489, 33 S. Ct. 158, 57 L. Ed. 309; Wilson v. U. S., 221 U. S. 361, 385, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558; Grant v. U. S., 227 U. S. 74, 79, 80, 33 S. Ct 190, 57 L. Ed. 423; Agnello v. U. S., 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145.

It goes without saying that the provisions of the Constitution of this state against unreasonable searches and seizures must and will be respected and enforced by the courts of this state and by appropriate legislation if any be needed. The only question now to be determined is, has the particular practice adopted by the federal courts of enforcing the provisions of the federal Constitution by indirection, through motion and order thereon suppressing evidence tending to prove the defendants guilty of crime, been adopted by the courts of this state generally to enforce a corresponding provision of the state Constitution, and will this practice be adopted by this court? This course of the federal courts involves the creation of a new exception to the general rule of evidence that books and chattels illegally obtained will, notwithstanding, be received in evidence if evidential per se, and the adoption of a new practice of adjudging the right to possession to personal property on a motion and ordering its delivery thereon.

It will be observed that the result of such practice is not to punish the individual who has violated the constitutional provision by making an unreasonable search and seizure, but to shield the criminal and penalize the people of the state by suppressing evidence tending to prove an offense "against its peace and dignity."

The practice is, and must patently be applied without reference to the guilt or innocence of the defendant or the character of the article seized. It "extends to all equally —to those justly suspected or accused, as well as to the innocent." Agnello v. U. S., supra. It has been suggested that there is a distinction to be drawn between seized articles which are apparently contraband on inspection, like a blackjack, and books which are on their face innocent, though this distinction is seemingly not recognized in the Agnello Case. Whether a thing is innocent or not must depend upon the circumstances of its possession. If the doctrine applies to one class of incriminating evidence it must apply to another; if it covers books and papers it covers burglars' tools, narcotics, and infernal machines. If the unreasonable search and seizure is what condemns it, I can see no distinction in principle between the seizure of a blackjack and the seizure of books; either may be innocent in themselves and lawfully possessed depending upon the circumstances of the particular case. The one may be kept innocently in the home as a weapon of protection against robbery and the other in the office as a record of ordinary business transactions. Either may be possessed as instrumentalities in accomplishing a criminal purpose.

The whole subject is very fully and ably considered by Professor Wigmore, the authorities, state and federal, reviewed, and the practice in the federal courts vigorously attacked as a new and unwarranted innovation in the law of evidence. In commenting upon this method of enforcing the Constitution as enunciated by the Supreme Court, this distinguished author condemns it as "indirect and unnatural," and says:

"The natural way to do justice here would be to enforce the splendid and healthy principle of the Fourth Amendment directly, i. e., by sending for the high-handed, over zealous marshal who had searched without a warrant, imposing a thirty-day imprisonment for his contempt of the Constitution, and then proceed to affirm the sentence of the convicted criminal. But the proposed indirect and unnatural method is as follows: Titus, you have been found guilty of conducting a lottery; Flavius, you have confessedly violated the Constitution. Titus ought to suffer imprisonment for the crime, and Flavius for contempt. But no! We shall let you both go free. We shall not punish Flavius directly, but shall do so by reversing Titus's conviction. This is our way of teaching people like Flavius to behave, and of teaching people like Titus to behave, and incidentally of securing respect for the Constitution. Our way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else."

See Wigmore on Evidence (2d Ed.) vol. 4, §§ 2183, 2184, 2259b, and 2264.

The Fourth and Fifth Amendments of the United States Constitution have no application to state courts; they are limitations upon federal power alone, and rules of evidence and practice established in federal courts to enforce their provisions have no binding effect on state courts.

Decisions in the courts of many of the states adhere to the view supported by Professor Wigmore as opposed to that adopted by the federal courts. In People v. Defore, 242 N. Y. 13, 150 N. E. 585, Judge Cardozo (now elected Chief Judge), in a very learned and able opinion, says that the federal doctrine has been adopted in 14 states and rejected in 31. He reviews the authorities fully, and with the unanimous concurrence of the court rejects the federal view. See People v. Defore, 242 N. Y. 13, 150 N. E. 585, and cases there cited from the various states.

The administration of the law in New Jersey has always been practical and never over-sensitive to shield an accused. Where an accused on trial remains silent and does not take the stand and contradict evidence of facts adduced against him which he could deny, the judge may comment upon his failure to do so instead of sitting in impotent silence (Parker v. State, 61 N. J. Law, 313, 39 A. 651; Id., 62 N. J. Law, 801, 45 A. 1092; State v. Howard, 83 N. J. Law, 638, 87 A. 436; State v. Twining, 73 N. J. Law, 691, 64 A. 1073, 1135; State v. Schlosser, 85 N. J. Law, 165, 89 A. 522; Id., 86 N. J. Law, 376, 91 A. 1071; State v. Di Benedetto, 82 N. J. Law, 171, 82 A. 521; State v. Callahan, 76 N. J. Law, 427, 69 A. 957; State v....