State v. Burnett

• Decision Date: 17 May 1963
• Docket Number: No. A--719,A--719
• Citation: 191 A.2d 208,79 N.J.Super. 242
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Fletcher BURNETT, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 242

79 N.J.Super. 242

191 A.2d 208

The STATE of New Jersey, Plaintiff-Respondent, v. Fletcher BURNETT, Defendant-Appellant.

No. A--719.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 18, 1963.

Decided May 17, 1963.

Clive S. Cummis, Newark, for appellant (Maurer & Maurer, Newark, attorneys).

Peter Murray, Asst. Pros., for respondent (Brendan T. Byrne, Essex County Pros., attorney).

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

Defendant appeals from a conviction upon an indictment charging him with the knowing and unlawful possession of lottery slips, contrary to the provisions of N.J.S. 2A:121--3, N.J.S.A. The case was tried in the Essex County Court without a jury.

The only witness called by the State was Robert J. Murphy, a detective of the police department of the City of Newark. Detective Murphy testified that on February 15, 1961, at approximately 3:40 P.M. he and Detective Rothland were on patrol duty in the vicinity of Montgomery and High Streets, Newark, when they 'ran into an informant' who on nine or ten previous occasions had given them information which resulted in five or six arrests. The informant told them that 'in approximately the next ten or fifteen minutes a blue Mercury * * * around a '54 or '55--driven by a colored male would pull into a housing development parking lot across from or near Broome and Montgomery Street. When this colored male driving this Mercury left that parking lot he would have lottery slips on him.' They took up surveillance at Montgomery and Somerset Street, and approximately ten minutes later a car which met the description entered the parking lot. About four or five minutes thereafter they observed the car 'starting to come back out again.' They then 'went and blocked it in the parking lot, blocked it from coming out of the driveway, and informed the gentleman driving the car that (they) had a complaint of lottery against him,' and proceeded to search the vehicle and the defendant. Detective Rothland searched him 'in the obvious places, like pockets, and things like that, where we normally would find lottery slips.' Detective Murphy searched him again, 'proceeding to go through the entire length of his body, and in his waist band, in his belt by his spine were found five white lottery envelopes, or five white envelopes containing lottery slips.' The detectives also found cash in the amount of $135. At the police station defendant admitted that he had been a 'pickup' man for a period of three weeks. A pickup man collects lottery slips from various writers. The lottery slips were introduced into evidence as exhibit S--1--A, B, C, D, and E--over defendant's objection that the State had failed to show that the evidence was obtained by a reasonable search and seizure.

The defendant did not take the stand or otherwise contest the evidence given by Detective Murphy.

Defendant asserts in his brief that on the day prior to the trial, after a day-long argument on the question of the reasonableness of the search and seizure, the court denied his motion to suppress exhibit S--1. The argument on that motion is not reproduced in defendant's appendix, and we have no knowledge of the scope of it, or of the points therein advanced.

The issue raised upon this appeal is sharply defined. To quote from defendant's brief:

'This appeal poses a narrow question. Simply stated, it is whether a defendant has the right to learn the identity of a police informer upon whose information the police made a search and seizure on his person and automobile without obtaining a search warrant. The question is Res nova in New Jersey.'

Since defendant has chosen thus to limit his attack upon the seized evidence we need not concern ourselves with the question of whether or not there was probable cause for the search, or the ramifications of that problem. Cf. State v. Scharfstein, 79 N.J.Super. 236, 191 A.2d 205 (App.Div.1963).

Generally speaking, what is usually referred to as the informer's privilege is in reality the government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law; the purpose of the privilege is the protection of the public interest in effective law enforcement by recognizing the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encouraging them to perform that obligation. Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1956). See also Morss v. Forbes, 24 N.J. 341, 360--361, 132 A.2d 1 (1957). The government's privilege to withhold disclosure of an informer's identity must give way, where the disclosure of his identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause; in these situations the trial court may require disclosure and, if the government withholds the information, dismiss the action. Roviaro, supra, 353 U.S., at pp. 60--61, 77 S.Ct., at pp. 627--628, 1 L.Ed.2d 639.

The Legislature of this State has undertaken to balance the interests of the public and the individual and to accomplish the purposes above noted. N.J.S. 2A:84A--28, N.J.S.A. provides:

'A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) Disclosure of (the) identity is essential to assure a fair determination of the issues.' (Emphasis added)

The testimony taken at the trial directly relating to the question at issue was brief. In view of our disposition of the case, we deem it advisable to set it out verbatim:

'Q. You have no intention of disclosing the identity of this...