State v. Novembrino

Decision Date07 January 1987
CourtNew Jersey Supreme Court
Parties, 55 USLW 2402 STATE of New Jersey, Plaintiff-Appellant, v. Ottavio NOVEMBRINO, Defendant-Respondent.

James E. Flynn, First Asst. Prosecutor, for plaintiff-appellant (Harold J. Ruvoldt, Jr., Hudson County Prosecutor, attorney).

Joseph Charles, Newark, for defendant-respondent (Ashley & Charles, attorneys).

Allan J. Nodes, Deputy Atty. Gen., for amicus curiae Atty. Gen. (W. Cary Edwards, Jr., Atty. Gen., attorney).

Anderson D. Harkov, Asst. Deputy Public Defender, for amicus curiae Office of the Public Defender (Thomas S. Smith, Jr., Acting Public Defender, attorney).

Jeffrey E. Fogel, Executive Director, Newark, submitted a brief on behalf of amicus curiae American Civil Liberties Union of New Jersey.

Joseph A. Hayden, Jr., Hoboken, submitted a brief on behalf of amicus curiae Ass'n Criminal Defense Lawyers of New Jersey (Joseph A. Hayden, Jr., Hoboken, attorney; Harvey Weissbard, West Orange, and Judith Margulies Katz, Jersey City, on the brief).

The opinion of the Court was delivered by


Since 1961, when the United States Supreme Court decided Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, New Jersey and her sister states have been compelled by the federal constitution to exclude from the State's case-in-chief evidence obtained in violation of the fourth amendment. The so-called "exclusionary rule" has been applied in federal criminal cases since 1914 when the rule was first adopted to protect the rights secured by the fourth amendment. 1 Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Justice Day, writing for a unanimous Court, observed that without an exclusionary rule "the 4th Amendment * * * is of no value, and * * * might as well be stricken from the Constitution." Id. at 393, 34 S.Ct. at 344, 58 L.Ed. at 656.

For the first time since the Weeks decision, the Court in 1984 modified the exclusionary rule's application to the government's case-in-chief. In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, the Court held that evidence seized pursuant to a warrant issued without probable cause need not be excluded if the police officer who executed the warrant, judged by the objective standard of a reasonably well-trained police officer, relied in good faith on the defective warrant in gathering the evidence. In this case, we are asked by the Attorney General and the Hudson County Prosecutor to decide if article I, paragraph 7 of the New Jersey Constitution, which incorporates almost verbatim the protection against unreasonable searches and seizures set forth in the fourth amendment, will tolerate a modification of the exclusionary rule that recognizes the good-faith exception established by the United States Supreme Court in Leon.

We approach the issue posed here mindful of the controversy that has engulfed the exclusionary rule since its inception. 2 As Justice Blackmun acknowledged in United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046, 1056 (1976), "The debate within the Court on the exclusionary rule has always been a warm one."

Characteristic of the sharp criticism the exclusionary rule has provoked are the observations of Chief Justice Burger, dissenting in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 419-20, 91 S.Ct. 1999, 2016-17, 29 L.Ed.2d 619, 640 (1971):

I submit that society has at least as much right to expect rationally graded responses from judges in place of the universal "capital punishment" we inflict on all evidence when police error is shown in its acquisition. Yet for over 55 years, and with increasing scope and intensity * * * our legal system has treated vastly dissimilar cases as if they were the same. Our adherence to the exclusionary rule, our resistance to change, and our refusal even to acknowledge the need for effective enforcement mechanisms bring to mind Holmes' well-known statement:

"It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Holmes, The Path of the Law, 10 Harv L Rev 457, 469 (1897).

In characterizing the suppression doctrine as an anomalous and ineffective mechanism with which to regulate law enforcement, I intend no reflection on the motivation of those members of this Court who hoped it would be a means of enforcing the Fourth Amendment. Judges cannot be faulted for being offended by arrests, searches, and seizures that violate the Bill of Rights or statutes intended to regulate public officials. But we can and should be faulted for clinging to an unworkable and irrational concept of law.

In sharp contrast is the perception of the exclusionary rule articulated by Justice Clark in Mapp v. Ohio, supra:

There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine "[t]he criminal is to go free because the constable has blundered." People v. Defore, 242 NY , at 21, 150 NE , at 587 [1926]. In some cases this will undoubtedly be the result. But, as was said in Elkins, "there is another consideration--the imperative of judicial integrity." [Elkins v. U.S. ] 364 US , at 222 [80 S.Ct. 1437, at 1447, 4 L.Ed.2d 1669 (1960) ]. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v United States, 277 US 438, 485, 72 L.Ed. 944, 959, 48 SCt 564, 66 ALR 376 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.... If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

* * *

* * *

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice. [367 U.S. at 659-60, 81 S.Ct. at 1963-64, 6 L.Ed.2d at 1092-93 (footnote omitted).]

The question before us requires an appreciation of the conflicting views of the purpose and effectiveness of the exclusionary rule and the necessity and wisdom of the "good-faith" exception recognized by the Court in Leon. Moreover, we address this issue in the context of a federalist system in which "enforcement of criminal laws in federal and state courts, sometimes involving identical episodes, encourages application of uniform rules governing search and seizure," State v. Hunt, 91 N.J. 338, 345, 450 A.2d 952 (1982), yet mindful that because a state constitution may afford enhanced protection for individual liberties, we "should not uncritically adopt federal constitutional interpretations for the New Jersey Constitution merely for the sake of consistency," id. at 355, 450 A.2d 952 (Pashman, J., concurring).


Defendant, Ottavio Novembrino, was indicted for possession of controlled dangerous substances contrary to N.J.S.A. 24:21-20(a)(1), (4), and possession of controlled dangerous substances with intent to distribute in violation of N.J.S.A. 24:21-19(a)(1). A motion to suppress evidence was filed pursuant to Rule 3:5-7.

The suppression hearing resulted in sharply conflicting accounts of the circumstances surrounding defendant's arrest and the subsequent search of his service station. According to Detective Higgins, whose affidavit led to the issuance of the disputed search warrant, defendant was stopped by two officers from the Bayonne Police Department at about 6:15 p.m. on June 2, 1983. The stop occurred shortly after Novembrino closed his service station and was proceeding home by automobile. One officer conducted a pat-down search, while the other officer conducted a limited inspection of the interior of defendant's automobile. Defendant agreed to go with the officers to police headquarters. He drove to the station in his own car, accompanied by one of the officers. Detective Higgins testified that Novembrino was not placed under arrest and was free to leave, although neither officer advised him of his right to do so.

After being advised of his Miranda rights, Novembrino refused to consent to a search of his station. At about 6:30 p.m., Detective Higgins left a message requesting that the Bayonne municipal court judge telephone him. He then began to type an affidavit in support of a search warrant. Detective Higgins conceded that this was the first such affidavit he had ever prepared and estimated that its preparation took approximately ten or fifteen minutes. When the municipal court judge telephoned, Detective Higgins arranged to meet him at a shopping center. They met at approximately 6:50 p.m. The judge reviewed the affidavit and signed the warrant. Detective Higgins spoke...

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