State v. Ferrara

• Decision Date: 21 October 1966
• Docket Number: 1851,Nos. 1850,s. 1850
• Citation: 92 N.J.Super. 549,224 A.2d 159
• Parties: STATE of New Jersey, Plaintiff, v. Daniel FERRARA, Defendant. --Criminal, New Jersey
• Court: New Jersey County Court

Page 549

92 N.J.Super. 549

224 A.2d 159

STATE of New Jersey, Plaintiff, v. Daniel FERRARA, Defendant.

Nos. 1850, 1851.

Essex County Court

Law Division--Criminal, New Jersey.

Oct. 21, 1966.

Joel Sondak, Asst. Pros., for plaintiff (Brendan T. Byrne, Essex County Pros., attorney).

Harvey Weissbard, Orange, for defendant (Querques & Isles, Orange, attorneys).

SCHAPIRA, J.C.C.

The court is presented with an issue of novel impression in New Jersey and one of importance in facilitating the administration of criminal procedure. The question posed is whether a confession obtained as a result of an illegal search and seizure may be suppressed by motion prior to trial under the authority of R.R. 3:2A--6(a).

The only case which specifically dealt with this matter was State v. Cicenia, 6 N.J. 296, 78 A.2d 568 (1951).

'There are no cases in this State where it has been held that the trial court has the right to suppress a confession in advance of trial, nor do the cases in other jurisdictions so hold In the absence of controlling statutes or rules. (emphasis added). In re Fried, 161 F.2d 453, 1 A.L.R.2d 996 (2d Cir.1947), certiorari dismissed, 332 U.S. 807, 68 S.Ct. 105, 92 L.Ed. 384 (1947), holding that the United States District Court has the power to suppress a confession taken in violation of the accused's constitutional rights was premised on Rule 41 of the Federal Rules of Criminal Procedure, which permits a person aggrieved by an unlawful search and seizure to move In advance of trial, among other things, to suppress for use as evidence anything so obtained. Federal Rule 41, however, has not been adopted here nor has any similar conterpart.' (emphasis added). State v. Cicenia, 6 N.J. supra, at pp. 301--302, 78 A.2d at p. 571.

In 1962 New Jersey adopted Criminal Practice Rule 3:2A--6(a) which was based upon Federal Rule 41.

'Except for proposed rules 3:2--5(3) and 3:2--9(2) (here not relevant) we believe these rules (dealing with search and seizure) are Substantially similar in all important aspects to rule 41 of the Federal Rules of Criminal Procedure.' New Jersey Fourteenth Annual Judicial Conference--Reports and Transcripts 1962, Report of the New Jersey Supreme Court's Committee on Criminal Procedure (April 12, 1962); and Annual Judicial Conference, May 4, 1962 (morning session--Report of the Committee on Criminal Procedure--Judge Edward Gaulkin, Chairman).

The only significant distinction between the rules is the time period within which defense counsel must move the court to suppress the evidence, the New Jersey Rule requiring the motion to be made within 30 days of the initial plea while the Federal Rule allows the motion to be brought any time prior to trial.

New Jersey having adopted a suppression rule substantially similar to Federal Rule 41(e), the basic premise of Cicenia is dissolved, and, therefore, drawing upon the strong inference of that decision, confessions taken in violation of an accused's rights may now be suppressed prior to trial. Simply stated, now that New Jersey has a rule substantially like Federal Rule of Criminal Procedure 41, the principle of In re Fried, suppressing a confession prior to trial, should be followed. R.R. 3:2A--6(a); State v. Cicenia, supra, at p. 301, 78 A.2d 568.

Notwithstanding the Cicenia decision, there is ample independent justification for permitting a pretrial suppression of a confession. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), is the leading case dealing with the effect of an illegal arrest with respect to the admissability of a subsequent confession, in which the court stated:

'It follows from our holding in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of 'papers and effects.' Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. McGinnis v. United States, 1 Cir., 227 F.2d 598. Thus verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest * * * is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion. See Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690. Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence * * * the danger in relaxing the exclusionary rules in the case of verbal evidence would seem too great to warrant introducing such a distinction.' (371 U.S. at pages 485--486, 83 S.Ct. at page 416.)

The underlying rationale is that the government shall not violate constitutional guarantees (here the Fourth Amendment guarantees that an individual shall be secure against unreasonable searches and seizures) 'and use the fruits of such unlawful conduct to secure a conviction,' Walder v. United States, 347 U.S. 62, 64--65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954); it matters not that these 'fruits' are confessions rather than some other type of evidence.

In view of the principle of Wong Sun that oral statements are not to be treated differently from other tangible evidence obtained as a result of an illegal search and seizure with respect to their admissibility into evidence, there appears no sound reason for differentiating statements and tangible evidence in a pretrial determination of admissibility.

In re Fried, supra, reflects the policy of the courts in safeguarding the individual's constitutional rights by excluding evidence obtained in violation of those rights, whether oral statements or tangible evidence, and permitted the suppression of a confession prior to trial.

Our present lack of uniformity in dealing with tangible items as opposed to verbal evidence at the pretrial level of a motion to suppress such evidence is illogical, and consistency in dealing with all evidence obtained as a result of an unlawful search and seizure is the most practical approach. In the words of Judge Learned Hand:

'Although, so far as I know, the same rule has not as yet been extended to confessions procured in violation of the Fifth Amendment, I feel too much the force of consistency not to take this added step. True, judges are not to be reformers, but law which depends upon irrational distinctions is rightly discredited, for one alternative or the other is patently wrong. Since I cannot see any rational basis here for distinguishing between the two Amendments when the situation is so nearly the same, I am content to accept this innovation.' In re Fried, supra, 161 F.2d at p. 465.

Since it is not inconsistent to treat tangible evidence and confessions alike when dealing with violations of the Fourth and Fifth Amendments, as was the situation confronting Judge Hand, it is much more consistent and logical to treat tangible and verbal evidence alike when such evidence is procured in a violation involving only the Fourth Amendment.

In addition to Fried, the Federal courts have taken the above view and granted motions to suppress confessions resulting from an illegal search. United States v. Pollack, 64 F.Supp. 554 (D.N.J.1946) (no objection made regarding prematurity of motion); United States v. General...