United States ex rel. Petillo v. State of NJ, Civ. A. No. 1252-73

• Decision Date: 25 August 1976
• Docket Number: 1808-73.,Civ. A. No. 1252-73
• Citation: 418 F. Supp. 686
• Parties: UNITED STATES of America ex rel. Frank PETILLO, Petitioner, v. STATE OF NEW JERSEY et al., Respondents. Angelo ALBANESE, Petitioner, v. Howard YEAGER et al., Respondents.
• Court: U.S. District Court — District of New Jersey

418 F. Supp. 686

UNITED STATES of America ex rel. Frank PETILLO, Petitioner, v. STATE OF NEW JERSEY et al., Respondents.

Angelo ALBANESE, Petitioner, v. Howard YEAGER et al., Respondents.

Civ. A. Nos. 1252-73, 1808-73.

United States District Court, D. New Jersey.

August 25, 1976.

Stanley C. Van Ness, Public Defender, Trenton, N.J., by Rosemary Karcher Reavey, Asst. Deputy Public Defender, East Orange, N.J., for petitioner Petillo.

Joseph P. Lordi, Essex County Prosecutor, Newark, N.J., by R. Benjamin Cohen, Asst. Prosecutor Atty., Newark, N.J., for respondents State of New Jersey, et al.

Noonan & Flynn, by Robert J. DeGroot, Newark, N.J., for petitioner Albanese.

Joseph P. Lordi, Essex County Prosecutor by Kenneth P. Ply, Asst. Prosecutor Atty., Newark, N.J., for respondents Howard Yeager, et al.

STERN, District Judge.

These consolidated petitions for writs of habeas corpus come before the Court on remand from the United States Court of Appeals for the Third Circuit for reconsideration in light of Stone v. Powell, ___ U.S. ___, 96 S.Ct. 3037, 49 L.Ed.2d ___ (1976), decided by the Supreme Court after oral argument was heard on these cases in the Court of Appeals. United States ex rel. Frank Petillo v. State of New Jersey, et al., No. 75-2311 (3rd Cir. August 4, 1976).¹ This Court incorporates by reference its original opinion, 400 F.Supp. 1152 (D.N.J. 1975), in this opinion.

In Stone, the Supreme Court held "that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." ___ U.S. at ___, 96 S.Ct. at 3052. The question to be addressed here, therefore, is whether these petitioners were provided such an opportunity.

In the original opinion, this Court discussed at length the question "whether the exclusion remedy for Fourth Amendment violations ought to be viewed as of constitutional dimension for purposes of collateral attack by petition for a writ of habeas corpus." 400 F.Supp. at 1186, n.17. The Court noted that such a constitutional claim often "has little or no bearing upon the issue of guilt or innocence or upon the integrity of the fact-finding process," and that on collateral review "the asserted deterrent purposes of the exclusionary rule are likely to be so attenuated as no longer to warrant its application." Id.

The Court was aware of the pendency of Stone,² and specifically examined the restrictive standard for application of the exclusionary rule on collateral review enunciated by Mr. Justice Powell, the author of the Supreme Court's opinion in Stone, in his concurring opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). 400 F.Supp. at 1186-1187, n.17. It is this Court's view that the reasoning and result of Mr. Justice Powell's concurring opinion have now been adopted by the majority of the Supreme Court in Stone. ___ U.S. at ___, 96 S.Ct. 3037.

In its original opinion this Court wrote:

. . . Even the concurring Justices in Bustamonte, who would reduce the scope of the exclusionary rule on collateral review, recognize the necessity of a full and fair hearing of Fourth Amendment claims in either state or federal court:

Where there is no constitutional claim bearing on innocence, the inquiry of the federal court on habeas review of a state prisoner's Fourth Amendment claim should be confined solely to the question of whether the defendant was provided a fair opportunity in the state courts to raise and have adjudicated the Fourth Amendment claim.

412 U.S. at 266, 93 S.Ct. at 2067 (Emphasis added)

Upon examination of the instant record within the scope of review suggested by Mr. Justice Powell, the Court must conclude that both petitioners were denied a full and fair hearing on their Fourth Amendment claims, in violation of the Due Process Clause of the Fourteenth Amendment. . . .

400 F.Supp. at 1187, n.17.

New Jersey has fashioned a rule which deprives all defendants of a state forum "for the full and fair litigation" of such Fourth Amendment claims. That rule was announced on the direct appeal of one of the petitioners now before the Court. State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973). Under the Petillo Rule the subject of a search is simply not entitled to litigate his federal claim—that evidence seized pursuant to a warrant procured by police perjury ought to be suppressed—in state court.³ Whatever his rights to sue later under the Civil Rights Act or to seek subsequent criminal prosecution of officers who have perjured themselves, and however effective these supposed remedies may be, the injured defendant still has a constitutional right to suppress the fruits of the search. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Stone does not diminish this right, but only the circumstances under which it may be claimed on collateral review. New Jersey thus effectively denies the subject of the search the right to suppress the fruits of warrants procured by perjury by denying him a hearing on the veracity of the underlying affidavit—no matter how compelling his preliminary showing of perjury may be.

This Court has carefully examined the opinion of the Supreme Court in Stone, and in compliance with the directive of the Court of Appeals has sought and received the views of counsel on the question of Stone's effect on the instant cases. The Court is convinced that both petitions fall squarely within the remaining ambit of application of the exclusionary rule on collateral review.

The Supreme Court's holding could not be more clear. The question before the Court involved only state prisoners "who have been afforded the opportunity for full and fair consideration of their reliance upon the exclusionary rule with respect to seized evidence by the state courts at trial and on direct review." ___ U.S. at ___, 96 S.Ct. at 3049. This Court has held that the instant petitioners do not fall into that category. Having determined that petitioners have made a sufficient "showing that they were denied an opportunity for a full and fair litigation of that Fourth Amendment claim at trial and on direct review," ___ U.S. at ___, 96 S.Ct. at 3052, n.37, this Court must issue the writs.⁴

For the reasons expressed in the Court's original opinion and for the additional reasons expressed herein, writs of habeas corpus will issue for both petitioners under the terms and conditions embodied in the Court's original opinion, 400 F.Supp. at 1190. The State is hereby instructed that upon issuance of the writs all incidents of the convictions at issue, including fines and parole requirements, are to be dissolved.

1 text of the per curiam opinion of the Court of Appeals follows:

In unrelated trials in the state courts of New Jersey, Frank Petillo and Angelo Albanese were convicted of having committed crimes. Each had filed a motion to suppress evidence;1 the motions were denied, and evidence that had been seized by law enforcement officials during searches of the defendants' homes was introduced at the trials.

1 It would appear that Albanese's motion to suppress was not timely made. The trial judge seems to have treated it as untimely, but then to have denied it on the merits as well. We express no views on whether the objection to the filing of the motion was waived in the state court.

Both convictions were affirmed on appeal.2 Petillo and Albanese subsequently filed petitions in the federal district court for writs of habeas corpus. The two cases were originally assigned to two district judges, but were later consolidated and determined by one judge.

2 State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973); State v. Albanese, No. A-2989-71 (N.J.Super.Ct., App. Div., Sept. 20, 1973) (per curiam), certif. denied, 64 N.J. 312, 315 A.2d 401 (1973).

The district court granted writs of habeas corpus to both petitioners.3 It did so on the the basis that each of them had made a prima facie showing that the warrant for the search of his home had been procured through material and knowing misstatements of fact by the officers who had sworn out the affidavits underlying the warrants, and that neither had been afforded a fair and adequate hearing at which it could be determined whether the magistrate who issued the warrants had been deceived. The State of New Jersey appealed to this Court.

3 400 F.Supp. 1152 (D.N.J.1975).

After the appeal had been filed and the matter had been briefed in this Court, the Supreme Court ruled in Stone v. Powell4 that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."5

4 ___ U.S. ___, 96 S.Ct. 3037, 49 L.Ed.2d ___ (1976).

5 Id. at ___, 96 S.Ct. at 3052 (footnotes omitted).

Although there is an indication that the district court may have anticipated the holding in Stone,6 neither the holding nor the reasoning of the Supreme Court was available to the district court when it rendered its decision, or to counsel when the briefs were filed in this Court. Our review of the important issue posed by the present cases can best be made with the assistance of the views of the district court, reflecting the impact of the Stone opinion on this litigation, after it has had the benefit of briefs submitted by all parties.

6 The Supreme Court had granted certiorari in Stone, 422 U.S. 1055, 96 S.Ct. 2676, 45 L.Ed.2d 708 (1975), almost three months prior to the decision of the district court.

Accordingly, the judgment of the district court will be vacated and the cause will be...