State v. Gerardo
| Decision Date | 17 February 1969 |
| Docket Number | No. M--124,M--124 |
| Citation | 53 N.J. 261,250 A.2d 130 |
| Parties | STATE of New Jersey, Plaintiff, v. Andrew GERARDO et al., Defendants. |
| Court | New Jersey Supreme Court |
Harold Krieger, Jersey City, for defendant Gerardo (Nicholas H. Politan, Jersey City, of counsel, Krieger, Chodash & Politan, Jersey City, attorneys).
Donald S. Coburn, Asst. Prosecutor, for the State (Joseph P. Lordi, Essex County Prosecutor, attorney).
The opinion of the court was delivered by
Defendant, with 18 others, is under indictment for violating the lottery laws of our State. The trial court denied his motion to suppress evidence he contends was illegally seized and to dismiss the indictment obtained by use of that evidence. The Appellate Division denied leave to appeal. Defendant now moves before us for such leave. At our request oral argument was had on this motion. Defendant's brief tenders the question whether the evidence must be suppressed because it was seized to support a federal prosecution which could not be successfully maintained under decisions of the United States Supreme Court handed down after the searches were made.
The evidence was obtained by federal authorities under warrants which were duly sought and duly issued. Thereafter, the federal indictments were dismissed on the authority of Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), which held that a plea of the Fifth Amendment privilege against self-incrimination would defeat prosecutions under the federal wagering statute for willful failure to register before engaging in the business of accepting wagers and for failure to pay a tax upon that occupation. Defendant contends it should follow that the use of the federally seized evidence in a State prosecution would likewise offend his right under the Fifth and also his right under the Fourth Amendment. We cannot find an infringement of either constitutional value.
The issue must be considered in the context of the values involved. It is an unhappy fact that the capacity of the judicial process to deal with the demands of law enforcement is doubted by a substantial body of responsible men. The reasons are several. One is the lengthening line of decisions which suppress the truth or block access to it. It is idle to suppose, as some do, that those decisions have no impact upon law enforcement or at the worst only a minimal one. The realities abound the other way. Nor should the topic be obscured by invoking the presumption of innocence. The presumption has no role on a motion to suppress. Such motions are not made for an academic end. The purpose is to suppress proof which will likely convict, so that offenders will go free.
It bears repeating that the first right of the individual is to be protected from criminal attack. That is the reason for government. The responsibility to that end rests no less upon the judiciary than upon its coordinate branches. If the judiciary exerts its undoubted power to create new constitutional doctrines, it must first learn what authority the other departments must have. The need must be found, not in abstract contemplation, but in the tumult of the streets. Cliches and slogans will not do. So it throws no light to inveigh against a 'police state.' It would be a bit absurd to say ours was a police state before, let us say, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), or to deride in such terms every nation which does not suppress the truth (if indeed there is any which does).
All the competing rights involved belong to the individual. The State has none--it has only duties, and powers with which to discharge them. To set criminals free is to exact a price, not from some pain-free societal entity, but from innocent individuals who will be their next victims. There are other hurts as well, for the suppression of proof of guilt must weaken respect for the reach of the law, thereby increasing the toll of victims and injuring as well those offenders who might have been deterred from a career of lawlessness. Some would add their belief that current doctrines tend to corrupt officials who, struggling to cope with the dirty realities of crime, strain to bring the facts within unrealistic concepts. These trespasses upon the first right of the individual to be protected from attack should not be suffered unless it is plain that some larger individual value is served.
The question then is whether there is such other value here which rises above the first right of the individual. If not strictly relevant, it is at least noteworthy that the evidence we are asked to suppress relates to syndicated crime, for it is syndicated crime which, above all other, has found a haven in the suppression of the truth.
With these matters in mind, we turn to the issues offered on the motion for leave to appeal. As to the Fifth Amendment, it is not claimed that the evidence was obtained as the result of any disclosure defendant was compelled to make under the statute. On the contrary, as we understand the situation, none of the defendants made any disclosure; the federal indictments were for failure to register and failure to pay the occupational tax. Rather the argument is that since a plea under the Fifth Amendment would defeat the federal prosecution, it somehow should follow that any use of the evidence to establish a violation of some other criminal law must also offend the privilege against self-incrimination.
Defendant is supported by Commonwealth v. Katz, 429 Pa. 406, 240 A.2d 809, 811 (Sup.Ct.1968), where the proposition is put this way:
'* * * We therefore believe that if a federal prosecution based upon violations of sections 4411 and 4412 () would infringe the accused's privilege against self-incrimination and if this privilege applies to the states, then a state prosecution based upon the same evidence seized by federal officers would equally violate that privilege. * * *'
We think there is an unbridgeable gap between the premise and the conclusion. Marchetti and Grosso did not find it was the use of seized evidence which infringed the Fifth Amendment privilege. Rather it was the statutory demand for registration and for payment of the occupational tax which involved the privilege, and for the reason that one who complied would thereby furnish evidence of his violation of gambling laws. The Fifth Amendment issue would be the same if proof of a defendant's violation of the federal statute were obtained solely from third parties. The opinions nowhere intimated the Fifth Amendment would be infringed by the use of evidence the defendant did not himself furnish in obedience to the statute. In fact,...
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