United States ex rel. Petillo v. State of NJ

• Decision Date: 18 September 1975
• Docket Number: 1808-73.,Civ. A. No. 1252-73
• Citation: 400 F. Supp. 1152
• 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

400 F. Supp. 1152

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.

September 12, 1975.

As Amended September 18, 1975.

COPYRIGHT MATERIAL OMITTED

Stanley C. Van Ness, Public Defender by Rosemary K. Reavey, Asst. Deputy Public Defender, for petitioner Petillo.

Joseph P. Lordi, Essex County Prosecutor by R. Benjamin Cohen, Asst. Prosecutor, for respondents State of New Jersey, and others.

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

Joseph P. Lordi, Essex County Prosecutor by Kenneth P. Ply, Asst. Prosecutor, for respondents Howard Yeager, and others.

OPINION

STERN, District Judge.

Petitioners seek writs of habeas corpus pursuant to the provisions of Title 28 U.S.C. § 2254. Petitioner Petillo commenced Civil Action No. 1252-73 on August 28, 1973. Petitioner Albanese began Civil Action No. 1808-73 on December 14, 1973. The two actions were consolidated by order of the Court on November 22, 1974, on consent of all parties, on the basis of the applicability to both of the common question of law known in this State as the "Petillo Rule." Federal Rule of Civil Procedure 42(a).

I. PROCEDURAL HISTORY

The Essex County Grand Jury charged Petitioner Petillo, in Indictment Nos. 3853-70 and 3854-70, with unlawfully keeping a place to which persons may resort for gambling, and with bookmaking, in violation of N.J.S.A. 2A:112-3.

A pretrial motion to suppress evidence seized pursuant to a search warrant signed by a judge of the Superior Court was denied on November 13, 1970. Petitioner filed a petition for leave to appeal from that ruling, which was denied on December 9, 1970. He was tried and convicted by a jury in Superior Court, on both charges, on February 17 and 18, 1971. Petitioner was sentenced, on March 18, 1971, to a term of one-to-three years in the State Prison and a $2,000 fine for bookmaking, and to a concurrent one-to-three year term for keeping a place to which persons may resort for gambling.

Petitioner appealed to the Appellate Division of the Superior Court, and the appeal was certified by the Supreme Court of New Jersey before argument in the Appellate Division. The convictions were affirmed by the Supreme Court on July 5, 1972. State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972). On February 20, 1973, a petition for a writ of certiorari was denied by the Supreme Court of the United States, Mr. Justice Douglas dissenting. Petillo v. New Jersey, 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973). Petitioner Petillo has thus exhausted all available state remedies, within the meaning of Title 28 U.S.C. § 2254(b).

The Essex County Grand Jury charged petitioner Albanese, in Indictment No. 373-71, with the following offenses: Count 1, possession of lottery slips, in violation of N.J.S.A. 2A:121-3; Count 2, keeping a place to which persons may resort for gambling, in violation of N.J.S.A. 2A:112-3; Count 3, working for a lottery business, in violation of N.J.S.A. 2A:121-3; and Count 4, bookmaking, in violation of N.J.S.A. 2A:112-3. Petitioner was tried before a jury in Superior Court from March 7 to March 13, 1972. A mistrial was declared after the jury was unable to agree on a verdict. On April 17, 1972, petitioner, on the ground of newly discovered evidence, moved for leave to file out of time a motion to suppress evidence. The motion was denied on May 1, 1972. Petitioner was retried and convicted in Superior Court, and was sentenced on July 13, 1972 to a term of one-to-two years on Count 1, two-to-three years on Count 2, one-to-three years on Count 3, and two-to-three years on Count 4, all terms to run concurrently with the term imposed on Count 2. Petitioner's conviction was affirmed by the Appellate Division on September 20, 1973, in reliance on State v. Petillo, supra,¹ and his petition for certification was denied by the New Jersey Supreme Court on November 27, 1973. Petitioner Albanese has thus exhausted all available state remedies, within the meaning of Title 28 U.S.C. § 2254(b).

Petitioner Petillo is presently on parole, but he is still "in custody" within the meaning of § 2254. Although the custody requirement has been interpreted broadly in recent years, cf. Preiser v. Rodriguez, 411 U.S. 475, 486 n. 7, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), "there still remains as a requirement of the habeas corpus jurisdiction of a district court that the petitioner be subject to some `physical restraint.'" Id. at 486, 93 S.Ct. at 1827. "This need not be actual confinement, but can include supervisory control over the person of the petitioner." Pueschel v. Leuba, 383 F.Supp. 576, 579 (D.Conn. 1974). Sufficient "supervisory control" has been found where a defendant was released on personal recognizance pending sentencing, Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L. Ed.2d 294 (1973), or awaiting trial, United States ex rel. Russo v. Superior Court, 483 F.2d 7, 12 (3rd Cir. 1973), cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973). The Supreme Court has held that "while a petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the `custody' of the members of the . . . Parole Board within the meaning of the habeas corpus statute . . .." Jones v. Cunningham, 371 U. S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963) (construing Title 28 U.S.C. § 2241). Petitioner Petillo, who is presently on parole, thus satisfies the "in custody" requirement. United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423-424 (3rd Cir. 1975).

Petitioner Albanese is presently at liberty until further order of the Court, having posted a $5,000 surety bond pursuant to an order of this Court filed on December 19, 1973. (Whipple, J.) Under Hensley and Russo, supra, petitioner Albanese is therefore also "in custody" within the meaning of the habeas corpus statute. The Albanese petition was ordered reassigned to this Court by Chief Judge Whipple on October 23, 1974, because of the pendency of the Petillo petition here and the New Jersey courts' reliance on the "Petillo Rule" in affirming the conviction of Albanese.

The legal issues presented by the two petitions are closely related. Each petitioner claims that evidence was seized from him under the authority of a search warrant which had been procured by police perjury in the underlying affidavit, and that the evidence so obtained was then used against him at trial. Petitioners further contend that due process was denied them because they did not receive a fair opportunity in state court to demonstrate that each issuing magistrate had been deceived, and that each warrant had been fraudulently procured.

Petillo, who was granted some opportunity to be heard in state court, alleges that the hearing there was neither full nor fair, and that the state court's factual findings after the hearing were not fairly supported by the record. Albanese, who was not afforded any hearing, alleges that his due process rights were thereby violated.

On appeal of the state convictions, the New Jersey Supreme Court in Petillo, and the Appellate Division in Albanese (in reliance on Petillo), found no due process violation. The basis for that conclusion was the Supreme Court's holding in Petillo that as a matter of law a defendant in a criminal case is not entitled to any hearing on his claim that the search warrant used to procure evidence against him was itself procured by police perjury, and that the use of such a warrant would not offend the Fourth Amendment:

For future guidance we feel obliged to deal with the basic question whether the truth of the factual assertions contained in the affidavit submitted in support of an application for a search warrant may be controverted on a subsequent motion to suppress the incriminatory evidence seized in the execution of the warrant. We hold that it may not be done.

* * * * * *

The Constitutions are satisfied if a judicial mind decides that the sworn factual allegations set out in the affidavit or testimony sworn to before him show the required probable cause. . . . Then the legal propriety of the issuance of the warrant ought to be beyond further question.

* * * * * *

The requirement is sworn statements of fact of sufficient legal quality to persuade an impartial judge that probable cause exists to believe that the crime described is being committed at the place. Once that test is met to the satisfaction of the judge, relitigation of the truth of the factual basis for issuance of the warrant should not be permitted. The ultimate truth of the criminal charge against the accused is not involved on a suppression motion. On the contrary his effort is to avoid the evidence of that truth which provides corroboration of the basic truthfulness of the affidavit. Citations omitted

In our view the constitutional safeguards are met when the impartial judge finds the affidavit for the warrant credible and legally sufficient. Compliance with the requirement for an oath by the officer must be regarded as a procedurally adequate manifestation of his veracity. That oath followed by the judge's determination that the facts vouched for show probable cause are all the Constitutions demand and guarantee to our citizens. If the police officers lie, the truth of the accused's alleged criminal activities as revealed by the evidence seized under the warrant will not be diluted. In that event, as the Chief Justice noted in State v. Burnett, supra 42 N.J. 377, 201 A.2d 39, the accused will have to meet nothing more nor worse than the "truth" at a plenary trial. 42 N.J. at 386, 201 A.2d 39. Further, so far as the untruthful officers are concerned, they expose themselves to the sanctions of indictment

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