The opinion of the court was delivered by
Defendants Dr. George Doyle and his wife, Mona Doyle, were convicted of committing a criminal abortion upon one Pauline Eealey in violation of
N. J. 8.
2A:87-1. The Appellate Division affirmed.
State v. Doyle,
77
N. J. Super.
328
(App. Div.
1962). Appeal as of right was taken to this Court under
B. B.
1:2-1 (a). The basis for resort to the rule was alleged violation of the Eourth Amendment to the
United States Constitution
which prohibits unreasonable searches and seizures. More specifically, defend
On the original argument of the appeal before us, we were convinced that the seized articles were inculpatory in character and their admission in evidence sufficiently prejudicial as to require reversal of the conviction if the seizure was unlawful. See Fahy v. Connecticut, 375 U. S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). On the argument, however, certain additional circumstances were brought to the fore which, in our judgment, required remand of the record to the trial court for the taking of further testimony with respect to the search and seizure problem. State v. Doyle, 40 N. J. 320 (1963).
The criminal offense occurred on December 2, 1960. The trial began on June 6, 1961, consumed 23 days and was completed on June 29, 1961. On June 19, 1961 the United States Supreme Court decided Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The day after Mapp came down, the prosecutor introduced certain inculpatory evidence which had been seized at the Doyle home on December 2, 1960. When the offer was made defense counsel conceded they were not questioning the lawfulness of the search. But, after conviction and sentence, the constitutionality of the search and seizure was questioned on appeal to the Appellate Division. The explanation for failure to raise the question during the remaining nine trial days after the Mapp decision, or before sentence, was that counsel did not become aware of the change in the law resulting therefrom until after the appeal was taken. The explanation was amplified by testimony on the remand referred to, and we have concluded that it should be accepted in order to dispose of the case on the merits of the constitutional issue.
Eollowing the remand considerable testimony was introduced with respect to the circumstances of the arrest and its relationship to the search and seizure. At the conclusion of the hearing, the trial court found that the police officers, although acting without an arrest warrant, had made a lawful arrest in the early morning of December 3, I960 because they had reasonable ground to believe that a felony had been committed by the Doyles. He further held that the search and seizure were incidental to the arrest and therefore also lawful. The additional testimony and findings have been returned to us, argument has been had thereon, and we now have the entire matter for determination.
The complete record, origina] and supplemental, adequately supports the conclusion of the trial court. It appears that on November 29, 1960 the county court issued a warrant to search the Doyle residence “in the daytime or in the evening at any time prior to midnight” within ten days. The affidavit on which it was based was palpably insufficient in the light of Mapp v. Ohio, supra, and more particularly, State v. Macri, 39 N. J. 250 (1963). For that reason the warrant has been disregarded in our determination of the appeal.
The police officers had information that an abortion was to be performed in the Doyle home on December 2, 1960. As a consequence they had the premises under surveillance. About
Immediately after Mrs. Eealey had been driven away. Captain Spahr asked Mrs. Intrieri to return to the Doyle house with him and Detective Kikkert, and ring the bell for them. She agreed to do so and on arriving there, they were met by two other police officers, Morrissey and Krause. At Spahr’s direction, the three officers stationed themselves on the Doyle porch and Mrs. Intrieri rang the bell. In response, the porch light went on and the front door was opened by the foster son of the D03d.es. When this occurred, the officers went in. The" time was about 12:20 a. m. Morrissey was first and the testimony shows that as they entered. Detective Kikkert said, “We are from the police.” Also, as they started up the stairs to the Doyle apartment which was on the second floor of what apparently is a two-family house, Morrissey called out that
The State contends that even though the offense was not committed in the presence of the police officers, the search and seizure of the articles offered in evidence at the trial were proper as incidents of a lawful arrest. Defendants, on the other hand, urge the arrest was unlawful because the officers had no arrest warrant and no probable cause existed for an arrest without a warrant. They contend also that the Fourth Amendment of the Federal Constitution was violated because the search and seizure followed an unannounced intrusion by the police officers into the Doyle home. There is no occasion in this case to consider when and for what type of offense police officers may arrest without a warrant for an infraction of the penal law committed in their presence. It is undisputed that the crime charged against defendants was not committed in the officers’ presence. Thus, the only question we deal with is whether their offense was such that under the existing circumstances the officers were justified legally in making an arrest without a warrant.
We are satisfied, as was the trial court on the remand, that the restraint of the persons of the defendants and the restriction of their liberty of movement by the police officers almost immediately upon the entry into the apartment, constituted an arrest.
Henry v. United
States, 361
U. S.
98, 103, 80
S. Ct.
168, 171-172, 4
L. Ed. 2d
134, 139 (1959);
Earl v. Winne,
14 N.
J.
119, 127 (1953). Moreover, the testimony shows clearly that the arrest preceded the search. Ordinarily the sequence is important because the validity of an arrest without a warrant cannot be judged by what a search revealed. The right to arrest must pre-exist the search. Officers cannot search in order to arrest, nor arrest because of the product of the search. A search undertaken merely for the purpose of uncovering evidence with which to arrest and convict of crime is not made lawful because the desired evidence is obtained.
Henry v. United
States,
supra.
Absent a valid search warrant, they must arrest validly in which event
This is not to say that where an arrest is valid independently of, and is not made to depend on, the search or its result, evidence produced by a search will be suppressed simply because in precise point of time the arrest does not precede the search. It is sufficient if the valid arrest and search are reasonably contemporaneous, that is, they occur as parts of a single transaction, as connected units of an integrated incident. In such a setting a search should not be condemned as constitutionally unreasonable. See Husty v. United States, 282 U. S. 694, 700, 51 S. Ct. 240, 241, 75 L. Ed. 629, 632 (1931); State v. Hoover, 219 Or. 288, 347 P. 2d 69, 89 A. L. R. 2d 695 (Sup. Ct. 1959); Henry v. United States, supra (361 U. S., at p. 106, 80 S. Ct., at p. 173, 4 L. Ed. 2d, at p. 141) (dissenting opinion); Annotation, 89 A. L. R. 2d 715 (1963). Likewise, if the arrest without a warrant is lawful the search and seizure are not invalidated solely because the officers had adequate time to procure a search or arrest warrant. United States v. Rabinowitz, 339 U. S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950); and, see Ker v. California, supra (374 U. S., at pp. 41-42, 83 S. Ct., at pp. 1634-1635, 10 L. Ed. 2d, at p. 743); People v. Maddox, 46 Cal. 2d 301, 294 P. 2d 6 (Sup. Ct. 1956), cert. denied 352 U. S. 858, 77 S. Ct. 81, 1 L. Ed. 2d 65 (1956). In United States v. Rabinowitz, the United States Supreme Court said:
“A rule of thumb requiring that a search warrant always be procured whenever practicable may be appealing from the vantage point of easy administration. But we cannot agree that this requirement should be crystallized into a sine qua non to the reasonableness of a search. It is fallacious to- judge events retrospectively and thus to determine, considering the time element alone, that there was time to procure a search warrant. Whether there was time may well be dependent upon considerations other than the ticking off of minutes or hours. The judgment of the officers as to when to close the trapon a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law oflicers engaged in daily battle with criminals for whose restraint criminal laws are essential.
It is appropriate to note that the Constitution does not say that the right of the people to be secure in their persons should not be violated without a search warrant if it is practicable for the oflicers to procure one. The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search warrant. Upon acceptance of this established rule that some authority to search follows from lawfully taking the person into custody, it becomes apparent that such searches turn upon the reasonableness under all the circumstances and not upon the practicability of procuring a search warrant, for the warrant is not required. * * * The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. * * *” 339 U. S., at pp. 65-66, 70 S. Ct., at p. 435, 94 L. Ed. 653.
It is important to note also that when a person is arrested lawfully, with or without a warrant, a search of his person or of the things within his immediate possession or control, or of the place of arrest to the extent that it is within his immediate possession or control, is considered incidental to the arrest. The rule was stated broadly in Rabinowitz as follows:
“The right ‘to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed’ seems to have stemmed not only from the acknowledged authority to search the person, but also from the long-standing practice of searching for other proofs of guilt within the control of the accused found upon arrest. Weeks v. United States,232 U. S. 383 , 392, 58 l. Ed. 652 [655],34 S. Ct. 341 , 344. It became accepted that the premises where the arrest was made, which premises wore under the control of the person arrested and where the crime was being committed, were subject to search without a search warrant.” 339 U. S., at p. 61, 70 S. Ct., at p. 433, 94 L. Ed. 653.
Obviously the search of the relatively small Doyle apartmeut, and particularly of the kitchen, was well within the outer limits of such a search.
Preston v. United
States,
supra; Ker v.
California,
supra; Abel v. United
States, 362
U. S.
217, 80
S. Ct.
683, 4
L. Ed. 2d
668 (1960);
Draper v. United
The further claim that the search and seizure were illegal because the officers failed to announce themselves and ask to be admitted to the premises before effecting their entry, cannot be sustained. The officers had strong basis for a belief that an abortion had been committed there. It was not unreasonable to believe that an identifying declaration and request for admittance to this second floor apartment would result in the destruction, elimination or secretion of at least some incriminating evidence. Moreover, they did not break into the house. The front door was opened in response to a ringing of the bell which enabled them to enter without breaking in. The proof supports the view that as they entered and either before starting up the stairway to the Doyle apartment or as they were ascending it, an identifying announcement was made. Assuming that a duty to request admittance exists in some situations (see dissent, Ker v. California, supra (374 U. S., at pp. 44-46, 83 S. Ct., at pp. 1635-1636, 10 L. Ed. 2d, at pp. 745, 746)), we think here the nature of the offense, the exigencies of the situation and the conduct of the officers were such that their search following the arrest should not be adjudged constitutionally impermissible. State v. Smith, 37 N. J. 481, 497-500 (1962). 1
The foregoing discussion brings us to the crucial aspect of the case: Was the arrest of the defendants without a warrant lawful? As the Chief Justice noted in his extensive discussion of the problem in
State v. Smith, supra,
under the common law a peace officer has authority to arrest without a
The English common law divided crime into three major groups: treasons, felonies and misdemeanors. 1
Burdich, Law of Crime,
§ 75 (1946);
Perlcins, Criminal Law, pp.
8-10 (1957); 1
Wharton, Criminal Law and Procedure.
§ 26 (12th
ed.
1957); 10
Halsbury’s Laws of England, p.
293
(3d ed.
1955). It is impossible to find an exact and all inclusive definition of felony or one upon which all the text writers agree. Wharton says the common law connotation is “lost in the shrouds of antiquity.”
Op. cit.
§ 28,
p.
58. Blackstone’s definition which, with some qualifications not important for our purposes, authorities generally seem to accept is that a felony was an offense which occasioned total forfeiture of either lands, or goods, or both; and to which capital or other punishment might be added according to the degree of guilt. 4
Blachstone, Commentaries on the Laws of England
95 (1765); 4
Chitiy’s Blachstone
67 (1895);
Bannon v. United States,
156
U. S.
464, 467, 468, 15
S. Ct.
467, 39
L. Ed.
494 (1895). Forfeiture for felony has long since been abolished in England and the United States. 22
C. J. S. Criminal Law
§ 6. Moreover, the significance of “felony” has been redefined in this country in many jurisdictions either by judicial decision
Judicial decision generally in this country has regarded a felony as any criminal offense for which the defendant may be executed or imprisoned in the state prison. For example, see:
Eckhardt v. People,
126
Colo.
18, 247
P. 2d
673
(Sup. Ct.
1952);
Hill v. State,
164
Ga.
298, 138
S. E.
229
(Sup. Ct.
1927);
State v. Vashon,
123
Me.
412, 123
A.
511
(Sup. Jud. Ct.
1924);
State v. McCormick,
84
Me.
566, 24
A.
938
(Sup. Jud. Ct.
1892);
State v. Siegel,
265
Mo.
239, 177
S. W.
353
(Sup. Ct.
1915);
Rains v. State,
142
Neb.
284, 5
N. W. 2d
887
(Sup. Ct.
1942);
State v. Harwood,
206
N. C.
87, 173
S. E.
24
(Sup. Ct.
1934);
Smith v. State,
115
Tex. Cr. R.
88, 29
S. W. 2d
350
(Crim. App.
1930);
Benton v. Commonwealth,
89
Va.
570, 16
S. E.
725
(Sup. Ct. App.
1893); 22
C. J. S. Criminal Law
§ 6,
p.
14. Many statutes classify offenses as felonies on the same basis.
Barrett v. Peo ple,
136
Colo.
144, 315
P. 2d
192
(Sup. Ct.
1957);
People v. O’Connor,
414
Ill.
51, 110
N. E. 2d
209
(Sup. Ct.
1953);
In re Stevens,
52
Kan.
56, 34
P.
459
(Sup. Ct.
1893);
State v. Spivey,
213
N. C.
45, 195
S. E.
1
(Sup. Ct.
1938);
Ex Parte Thorpe,
137
Ohio St.
325, 30
N. E. 2d
335
(Sup. Ct.
1940);
State ex rel. Grievance Committee of State Bar Ass’n v. Biggs,
52
Or.
433, 97
P.
713
(Sup. Ct.
1908);
Benton v. Commonwealth, supra; Clark and Marshall, Crimes, pp.
96, 99
(Wingersky ed.
1958);
Burdick, supra,
§ 80;
Wharton, supra,
§ 28,
fns.
12, 13. In New York a felony is a crime which is or may be punishable by death or imprisonment in a state prison. 39
McKinney’s Consolidated Laws of New York, Penal Law,
§ 2. On the federal scene Congress has declared any offense punishable by imprisonment for a term exceeding a year to be a felony. 18
U. S. C.
§ 1. The Model Penal Code designates a crime as a felony “if the person convicted thereof
Criminal codes in New Jersey have not utilized the felony-misdemeanor nomenclature or classification of the English common law. See, e. g., “An Act for the punishment of crimes,” adopted March 18, 1796, Paterson’s Laws of New Jersey 208 (1800); Brown v. State, 62 N. J. L. 666, 695 (E. & A. 1899); Leeman v. Public Service Ry. Co., 77 N. J. L. 420 (Sup. Ct. 1909). Our present crimes act makes all criminal offenses (other than treason, N. J. S. 2A:148-1, and murder, N. J. S. 2A:113-1 el seq.) misdemeanors or high misdemeanors, N. J. S. 2A :85-l to 12. All common law offenses of an indictable nature not expressly provided for by statute are denominated misdemeanors. N. J. S. 2A:85-1. Petty offenses are designated disorderly person offenses. N. J. S. 2A:169-1 et seq. Misdemeanors, with rare exceptions, are punishable by a fine of not more than $1,000 or imprisonment for not more than three years, or both. N. J. S. 2A:85-7. High misdemeanors, which under the statute are not in any way equated with common law felonies, are punishable generally by a fine of not more than $2,000 or imprisonment for a maximum term of seven years, or both. N. J. S. 2A:85-6. Disorderly persons may be punished by a fine of not more than $1,000 or incarceration in the county workhouse, penitentiary or jail for not more than one year, or both. N. J. S. 2A: 16 9-4.
The described classification and the absence of a specific “felony” category in our crimes act create a necessity for decision with respect to the kind of offense which will justify a police officer in arresting without a warrant. As has been shown above, most jurisdictions, either by statute or judicial declaration, regard an offense which may be punished by confinement in a state prison as sufficient for such purpose. In New Jersey a disorderly person infraction is not a crime and does not carry the stigma or disqualification associated with conviction of crime. Although it may be punished by a maximum term of one year, the imprisonment must be in a county
Abortion is a high misdemeanor. N. J. S. 2A :87-1. Thus the rule we now adopt is applicable to the present case. Cf. State v. Smith, 32 N. J. 501, 531 (1960). And, since the arresting officers did not have a warrant, the crucial issue becomes: Did they have reasonable ground to believe that Dr. Doyle had performed an abortion, and that Mrs. Doyle had assisted and participated in its commission? Our study of the evidence satisfies us that the officers were amply justified in making the arrests.
The affidavit of Detective Richard Kikkert submitted to obtain a search warrant recites that information had been received from a reliable source that an abortion would be performed at 12 Addison Avenue, Rutherford, New Jersey (the Doyle address) on December 2, 1960. While the address was under surveillance in the evening of that day, two women alighted from an automobile and entered the house. After several hours they emerged and walked down the porch steps with Dr. Doyle assisting Mrs. Fealey. The subsequent events, already described, which followed a very few minutes thereafter produced admissions by both women that Mrs. Fealey had been aborted by Dr. Doyle with Mrs. Doyle and
II.
Numerous alleged trial errors raised in the Appellate Division are covered again in defendants’ brief in this Court. We have examined them and are satisfied that they were properly disposed of by Judge Foley’s opinion. 77 N. J. Super., at pp. 336-341. Our examination of the entire record satisfies us that defendants suffered no prejudicial error in the admission or rejection of evidence, or any other aspect of the case. Moreover, the conclusion is inescapable that the facts and circumstances established at the trial pointed strongly to the result reached by the jury.
The judgments of conviction are affirmed.
For affirmance — Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Hane man — 7.
For reversal — None.
Notes
For a recent illuminating discussion of this problem, see Blakey, “The Rule of Announcement and Unlawful Entry,” 112 U. Pa. L. Rev. 499 (1964).