State v. Zito

Decision Date26 June 1969
Citation254 A.2d 769,54 N.J. 206
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Vincent ZITO, Defendant-Appellant.
CourtNew Jersey Supreme Court

Miriam N. Span, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney).

Robert H. Altshuler, Asst. Prosecutor, for respondent (John G. Thevos, Passaic County Prosecutor, attorney).

The opinion of the court was delivered by


Vincent Zito, Charles Miller, and Karl Shucai were convicted of breaking and entering, N.J.S. 2A:94--1, N.J.S.A., and of larceny, N.J.S. 2A:119--2, N.J.S.A. Zito appealed. His convictions were affirmed by the Appellate Division, 103 N.J.Super. 552, 248 A.2d 254 (1968), and we granted his petition for certification, 53 N.J. 347, 250 A.2d 749 (1969).

The case turns upon an issue of search and seizure. Zito, Miller and Shucai were in Shucai's automobile when they were arrested. A search of the trunk of the car yielded stolen property, the fruit of the crimes for which they were convicted. Zito alleges the arrests were illegal because made under an invalid statute, and therefore the search cannot be upheld as incidental to the arrests. The statute to which Zito refers is N.J.S. 2A:170--1, N.J.S.A., which reads:

'Any person who is apprehended and cannot give a good account of himself, or who is engaged in an illegal occupation and who is in this state for an unlawful purpose, is a disorderly person. In any prosecution under this section the fact that the person apprehended cannot give a good account of himself or is engaged in an illegal occupation is prima facie evidence that he is present in this state for an unlawful purpose.'


The Appellate Division accepted the premise that the search depended upon the validity of the statute just quoted, and finding the statute sufficient, held the stolen property was correctly received in evidence. We think the evidence was correctly received even if that statute were unconstitutional, and this for two reasons.

The first is that the product of a search should not be suppressed when a search is made in good faith upon the strength of a statute later declared unconstitutional. State v. Gerardo, 53 N.J. 261, 250 A.2d 130 (1969). The Fourth Amendment does not bar the use of evidence obtained in violation of its terms. Suppression is a judge-made device to deter future acts of insolence in office rather that to rectify a wrong already done. It must not be overlooked that the contest is between the first right of the individual--the right to be protected from crime--and the right of the individual to be free from an unreasonable search and seizure, and that when criminals are set loose because patent evidence of their guilt is suppressed, a heavy price is exacted, not from an abstraction called the State or the police or society, but from law-abiding individuals whose right to be protected is thereby impaired. Here there is no reason to invade the first right of the individual. Surely it is not arrogant of an officer to abide by the statutes of his State. On the contrary, it would be presumptuous of him to sit in constitutional judgment. It is therefore correct, and realistic, to say in the language of the Fourth Amendment itself that the search was not at all 'unreasonable.'

The second reason why the search should be upheld even if the statute here questioned were invalid is that the officers had ample cause to arrest for other offenses, and this being so, it would serve no defensible end to suppress the truth. That other grounds for arrest were known to the officers is evident in the record.

The arrests occurred at about 2:50 a.m. on October 10, 1966, across the street from a tavern. On the prior night four men had been in the tavern as patrons. Their trips to the men's room struck the owner as unusual. He examined the room after they left it and discovered the latches on the window had been tampered with. At 4:00 a.m. that morning an attempt was made to gain entry into the tavern. It failed when a burglar alarm was set off. The owner was understandably disturbed when early the next morning he recognized the occupants of the car parked across the street as three of those four men. The car having been there for some 40 or 45 minutes and the closing time being near, the tavern owner called police headquarters. The officers responded. The tavern owner related to them the facts we have just recounted, and his fear that the occupants of the car were there to rob him or burglarize his place.

The officers thereupon questioned the occupants of the car. In plain view was a 14-inch length of pipe wrapped in tape, which lay on the floor between the driver and the man who sat in the center of the front seat. The officer deemed the pipe to be a weapon (and correctly so; Shucai testified he had it for 'protection'). None of the defendants responded to the officer when asked what that object was. Learning that Zito and Miller were parolees and receiving no explanation which met the thrust of what they had heard and seen, the officers told the occupants they were under arrest. The men were searched, and a toy pistol was found in Shucai's right rear pants pocket. The trunk of the car was then searched, and in it were articles and sundry tools which had been stolen, apparently earlier that same morning, from a garage next door to the tavern. It was that burglary and larceny for which defendants were convicted.

At the time of the arrest, the officer had in mind the disorderly persons statute quoted above. We gather, however, that defendants were 'booked' for the breaking and entry into the garage and the theft of the articles and tools, and this on the basis of the discovery made after the arrest.

From the foregoing it is plain the officers knew of two additional bases for an arrest. One was the carrying of the home-made weapon in the automobile. N.J.S. 2A:151--41, N.J.S.A. The arresting officer stressed that one of the facts he took into account was the presence of a weapon, I.e., the pipe taped for use as a club. Surely this was sufficient for the arrest of Shucai, the owner of the car that was searched. The second basis was a conspiracy to commit larceny, robbery or burglary in violation of N.J.S. 2A:98--1, N.J.S.A. The facts revealed by the owner of the tavern, coupled with the observation of the home-made blackjack, constituted an adequate basis to believe the men were there for one of the purposes we have stated.

The question then is whether it should matter that the arresting officer selected one of the known bases of arrest rather than another, and that, hypothetically for our immediate discussion, the basis selected is later adjudged to be inadequate. There are cases involving civil actions for false arrest in which the officer has been held to the single ground he used at the time of the arrest. See Donovan v. Guy 347 Mich. 457, 80 N.W.2d 190 (Sup.Ct.1956); Geldon v. Finnegan, 213 Wis. 539, 252 N.W. 369 (Sup.Ct.1934); Annotation, 64 A.L.R. 653 (1929). We need not say whether we would subscribe to that view in a civil suit, for here other values are involved. As we have said, the issue is whether an adjudged criminal shall be set free at the expense of the individual's right to be protected from criminal attack. It would be a windfall to the criminal, and serve no laundable end, to suppress evidence of his guilt upon the fortuitous ground that the arresting officer, who knew of several bases for the arrest, selected one a judge later found inadequate. Commonwealth v. Lawton, 348 Mass. 129, 202 N.E.2d 824, 826 (Sup.Jud.Ct.1964). In terms of the Fourth Amendment, a search cannot sensibly be called 'unreasonable' when ample cause existed for the arrest and was known to the arresting officer.


Hence we are satisfied the arrest was lawful even if the officers erred in relying upon N.J.S. 2A:170--1, N.J.S.A., quoted above. But we think that statute, properly construed, is valid, and the arrest may rest upon it.

The statute is assailed upon a reading of it which would make a man's inability to give a good account an element of the offense. So read, the statute, defendant says, would deny due process of law because 'good account' is too vague to forewarn a citizen with respect to what is forbidden. The further provision of the statute, that 'the fact that the person apprehended cannot give a good account of himself * * * is prima facie evidence that he is present in this state for an unlawful purpose,' is challenged too under the due-process clause, on the ground that the authorized inference does not rationally flow from the premise. Further, if a refusal to answer constitutes an element of the offense or evidence of it, these same provisions may be questioned under the self-incrimination provision of the Fifth Amendment.

In State v. Salerno, 27 N.J. 289, 142 A.2d 636 (1958), we pointed out that the statute sought to 'nip crime in the beginning' by proscribing conduct indicative of a purpose to violate the law (pp. 294--295, 142 A.2d 636). We noted that McNeilly v. State, 119 N.J.L. 237, 195 A. 725 (Sup.Ct.1937), had said the statute would be unconstitutional if a conviction could rest solely upon an inability to give a good account, and had upheld the act upon the thesis that an additional element was required, namely, that the defendant be present in the State for an unlawful purpose. McNeilly, however, did sustain the provision that inability to give a good account was prima facie evidence of presence for an unlawful purpose. We recognized in Salerno that the constitutional issues raised by McNeilly's view of the statute were 'formidable' (p. 296), and although we found it unnecessary to deal with them, we did refuse to apply so much of McNeilly as held that the failure to give a good account could sustain a finding of presence for an unlawful purpose. Accordingly, despite our belief that...

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