State v. HandState v. Hand
This is a timely motion to suppress evidence, pursuant to R.R. 3:2A-6. The facts as elicited in testimony are as follows:
On March 14, 1967 two detectives of the Orange Police Department were informed by telephone by a sergeant that a Mr. Williams had phoned and reported that a man had offered to sell him a “hot” Royal electric typewriter. Williams gave the license number of a car involved, and the detectives
Detective Paglucci testified that he, his partner Detective Butler and Lenhart arrived at 310 Lincoln Avenue, Orange, at about noon. They rang the downstairs bell and were admitted by the caretaker, who took them to Hand‘s apartment on the third floor. Detective Paglucci said he knocked on the door and a male voice asked, “Who‘s there?” A man opened the door about three-fourths of the way or about two feet. “Police,” Paglucci said he answered. He testified that he had his foot nearly in the doorway as he showed the man — whom he knew to be Thоmas Hand — his badge. At this point, while still in the hallway, Detective Paglucci said he saw a typewriter on the floor in a closet in the apartment. The closet was about six feet away from him and had no doors. “I walked in,” Detective Paglucci said, and asked Hand where he got the typewriter.1 Thomas Hand was arrested and charged with receiving stolen property. He and the typewriter were taken to Orange Police Headquarters, where identification of the typewriter аs stolen was completed with the aid of a representative of the manufacturer.
Also in Thomas Hand‘s apartment, when the detectives entered, was defendant Joyce Hand, his wife, whom the police also knew was a narcotics addict. Mrs. Hand was told by the
Defendant Joyce Hand brings this motion to suppress evidence, contending that thе examination by the doctor was a search, her arrest as a material witness was invalid and improper, and the search was invalid since it followed an illegal arrest.
Under the circumstances, it is conceivable that defendant might be a material witness within the ambit of
The statute places with a judge or magistrate the decision as to whether the testimony a witness may give is sufficiently material to warrant binding the witness “by recognizance with sufficient surety.” The fact that Mrs. Hand was not taken before the nearest available magistrate until some 26 hours after her arrest, contrary to the direction of R.R. 3:2-3(a), does not necessarily make the arrest illegal or evidence obtained after the arrest inadmissible. State v. Hodgson, 44 N.J. 151, 157 (1965); State v. Jackson, 43 N.J. 148, 167-168 (1964); State v. LaPierre, 39 N.J. 156, 171 (1963).
Defendant in her brief points to the second paragraph of
Without doubt, defendant was detained in the same facilities employed for persons accused of crimes. However, 25 minutes after she arrived at the Orange police station — or shortly thereafter when the doctor reported his findings — defendant was a person accused of a crime.
Defendant also points to
Neither at the time Joyce Hand was taken into custody nor at any time thereafter did Mr. or Mrs. Hand consent to Joyce testifying against Mr. Hand. It should be noted that the consent of both is required before the spouse of the accused can testify. Defendant notes that
However, Rule 23 appears to deal with the admissibility of testimony at trial rather than the capacity of the spouse to testify. Mrs. Hand could testify against her husband if both she and her husband consented. Unlikely as it may be that both would consent to waive the Rule 23 privilege, it does not appear to be the arresting officer‘s duty to attempt to obtain such waivers. Thus the failure of the arresting officer to determine whether Mrs. Hand would or could be a witness does not in itself invalidate her arrest as a material witness.
Defendant suggests that although the arresting officer told Mrs. Hand that she was to be a material witness, the officer never really intended to arrest her for that purpose, but instead perpetrated a ruse to enable a doctor to examine Mrs. Hand. This brings us to the area that greatly concerned this court. Extensive research has revealed no case
The right of parties to a legal proceeding to obtain pertinent testimony from witnesses has long been established. Any personal sacrifice by the witness is a part of his necessary contribution to the welfare of the public. Although the duty to appear and testify is at times onerous, it is necessary to the administration of justice according to the forms and modes estаblished in our system of government. Wilson v. United States, 221 U.S. 361, 372, 31 S.Ct. 538, 55 L.Ed. 771 (1911), quoting Lord Ellenborough. Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 63 L.Ed. 979 (1918).
“The common law did not recognize any authority to confine a material witness, and such authority existing today is purely statutory. A court at common law could require a witness to enter into a recognizance, but he could not be required to provide a surety. ‘Confining Material Witnesses in Criminal Cases,’ 20 Washington and Lee L.R. 164 (1963).
“By the Statutes of Philip and Mary, referred to in Chitty‘s Criminal Law, Page 61 (marginal page 90) * * * authority is conferred on the magistrate to recognize witnеsses to attend at a future time in court, but nothing is said about requiring security of them.” Bickley v. Commonwealth, 25 Ky. (2 J.J. Mar.) 572, 574 (Ct. App. 1829).
See also Comfort v. Kittle, 81 Iowa 179, 46 N.W. 988 (Sup. Ct. 1890).
When witnesses were instructed to report to testify at a trial under the old common law, this apparently was accomplished by means of a summons, enforced by the court‘s contempt power rather than by arrest. See “Material Witnesses in Criminal Proceedings: Securing and Assuring Their Attendance,” 18 Mo. L.R. 38 (1953). This common law method of securing testimony from witnesses has been compounded by several statutes.
For actions arising in federal courts, a statute,
Although it might be pointed out that federal crimes are of a different nature than those that confront municipal police officers, section 618-b of the New York Code of Criminal Procedure is substantially the same as the federal statute:
“Whenever a judge of a court of record in this state is satisfied, by proof on oath, that a person residing or being in this state is a necessary and material witness for the people in a criminal action or proceeding pending in any of the courts of this state, he may, after an opportunity has been given to such person to appear before such judge and be heard in opposition thereto, order such person to enter into a written undertaking, with such sureties and in such sum as he may deem proper, to the effect that he will appear and testify at the court in which such action or proceeding may be heard or tried, and upon his neglect or refusal to comply with the order for that purpose, the judge must commit him to such place, other than a state prison, as he may deem proper, until he comply or be legally discharged. * * *”
In New Jersey the only statutes dealing with material witnesses are the aforementioned
“Every judge and magistrate shall, when in his judgment the ends of justice so require, find by recognizance, with sufficient surety, any person who shall declare against another person for any crime punishable by death or imprisonment in the state prison, or any person who can give testimony against any person so accused of
any such crime, whether the offender be arrested, imprisoned, bailed or not.”
R.R. 3:9-4 is almost precisely the same in content.
“No person shall be committed to or detained in jail to secure his appearance as a witness against any person charged with a crime, except such crimes as are punishable by death or imprisonment in the state prison, whether the offender be arrested, imprisoned, bailed or not.”
A second paragraph provides that such witnesses shall not be housed or treated the same as persons accused of crime.
As can easily be seen, these two statutes do not deal with apprehension of material witnesses. Thus, it cannot be said that they require that material witnesses only be arrested after a warrant has been issued.
When the validity of a search rests upon an arrest, or when the arrest itself is in questiоn, the lawfulness of the arrest is to be determined by reference to state law insofar as it is not violative of the Federal Constitution. Ker v. State of California, 374 U.S. 23, 37, 83 S.Ct. 1623, 1632, 10 L.Ed.2d 726, 739-741 (1963). In State v. Smith, 37 N.J. 481, 494 (1962), Chief Justice Weintraub noted that although New Jersey has sundry statutes dealing with arrest, it does not have a comprehensive one. He suggested that with the advent of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), legislative consideration would indeed be appropriate. Since that consideration has not yet occurred, the common law of arrest still exists in New Jersey. State v. Fair, 45 N.J. 77, 86 (1965). State v. Mpetas, 79 N.J. Super. 202, 207 (App. Div. 1963), citing State v. Smith, supra, 37 N.J., at pp. 493-494.
“The nature of the common law requires that each time a rule of law is applied it be carefully scrutinized to make sure that the conditions and needs of the time have not so changed as to make further application of it the instrument of injustice.” Long v. Landy, 35 N.J. 44, 51 (1961), quoting State v. Culver, 23 N.J. 495, 505 (1957).
It has been held that where no New Jersey court of higher jurisdiction had expressly applied or approved a common law rule and the rule had not been declared by legislative enactment, the court was free to exаmine the question of the continued justification of the rule as a part of New Jersey‘s nonstatutory law. State v. Koonce, 89 N.J. Super. 169, 180 (App. Div. 1965). In recent decisions our courts have repeatedly acknowledged that public policy is the dominant factor in the molding and remolding of common law principles to the end that they may soundly serve the public welfare and the true interests of justice. Falcone v. Middlesex County Medical Society, 34 N.J. 582, 589 (1961), and cases cited therein.
Even in this day of increasing availability of scientific evidence, witnesses are still important in proving violations of criminal laws. In proving some types of criminal activity, they are vital. At the same time, it must be noted that individuals have not significantly changed in regard to their reluctance to become involved as adjuncts to the judicial process. What has changed, if anything, in the last 40 years, is that our population has become intensely mobile. People commute great distances to work, move their residences frequently and travel often and far for entertainment and vacation. In the face of this swift movement from one area to another, if a police officer cannot immediately hold the man who has seen a crime but is reluctant to cooperate, he is faced with the possible loss of the witness2 or a possible delay in obtaining information that might lead to apprehension of the suspect closer in time to the crime and before incriminating
This, of course, is nothing new, since pоlice apparently have been making such arrests for years. As in any other arrest without a warrant, such action might be accepted because a magistrate will review the arrest and determine under what conditions, if any, jurisdiction will be retained.
Under the common law of New Jersey, a peace officer has authority to arrest without a warrant when he has a reasonable basis or probable cause to believe a crime punishable
Thus, this court construes thе common law to be that a peace officer may arrest without a warrant when he has a reasonable basis or probable cause to believe a person is a necessary and material witness to a crime punishable by imprisonment for more than one year and that person might be unavailable for service of subpoena.
A word is in order about the additional requirement that the officer reasonably believe that the alleged witness not оnly is a material one but also a necessary one. It is, in the opinion of this court, not sufficient for an arrest without a warrant that a person might be a witness to material aspects of a crime. The officer should reasonably believe that the alleged witness can give testimony which is essential to the State.
If additional unessential testimony is desired by the prosecutor, and if he believes the possible witness will not respond to a subpoena, a warrant should be obtained and
Thus, if two persons bоth allegedly witness a crime and one comes forward and cooperates while the other does not, an officer would not be justified in placing the second immediately under arrest instead of merely taking the person‘s name and address. This is even more compelling if there might be 10 or 20 possible witnesses.
However, if the officer has reason to believe that the second person also is necessary — perhaps the cooperating witness is not cohеrent, is self-contradictory, is a known prevaricator or is just not helpful — and might not be available (perhaps he has no roots in the jurisdiction) — there is nothing in the common law rule which precludes the officer from taking the second uncooperative possible witness into custody without a warrant.
Requiring the arresting officer to form an opinion on the potential availability of a possible witness, as well as his necessity to the criminal proceeding, is not asking too much of the officer. As the court stated in State v. Taylor, 81 N.J. Super. 296 (App. Div. 1963):
“The controlling cases demonstrate that the making by the arresting and searching officers of a subjective judgment of the existence of probable cause in relation to the crime hypothesized [here being a material witness] is essential to a legal search [here an arrest] without a warrant.” (at p. 309)
“It is plain that the legality of the search without a warrant is predicated upon the officers themselves making the considered ‘judgment’ of the existence of probable cause as to the crime hypothesized, in the place of the judicial officer who makes that judgment from the proofs submitted to him where a search warrant is applied for, see State v. Macri, supra, (39 N.J. 250, at p. 257) the particular circumstances excusing the officers from obtaining the warrant in advance of the search. See also State v. Klein, 79 N.J. Super. 559, 566 (App. Div. 1963).” (81 N.J. Super., at pp. 309-310)
In the case at bar there is no evidence that the arresting officer believed that defendant would be unavailable for service of a subpoena if she was needed in the prosecution. Also, it is extremely doubtful that the arresting officer could have believed that defendant was a necessary witness in a prosecution of Thomas Hand for possession of stolen goods. Both officers themselves witnessed the presence of the typewriter in the apartment.
There is also an additional basis on which this court can reach its decision. As the United States Supreme Court declared in United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932), “an arrest may not be used as a pretext to search for evidence.” MacKnight v. United States, 87 U.S. App. D.C. 151, 183 F.2d 977 (D.C. Cir. 1950); Barnes v. State, 25 Wis.2d 116, 130 N.W.2d 264, (Sup. Ct. 1964); Prather v. State, Fla. App., 182 So.2d 273 (App. Ct. 1966). In State v. Taylor, supra, 81 N.J. Super., at p. 310, the court recognized cases to the effect that “where the purpose of the officers is to search for evidence of crime and not to arrest the defendant on the basis of what is known before the search, a search without a warrant is unlawful, and the unlawfulness is not cured by the incriminating results of the search. [Citations omitted]”
In this case the officers knew defendant was a narcotics addict, gave no indication in their testimony of anything else that caused them to believe defendant wаs under the influence of narcotics, testified to no change of opinion regarding defendant‘s condition while en route to the police station, radioed for a police doctor before arriving at the station, and never brought defendant before a magistrate for determination of whether she should be held in recognizance as a material witness.5
The fact that nothing ever came of defendant‘s arrest as a material witness is not by itself conclusive оne way of the other. However, it is of “substantial probative significance” and at least supports the view that probable cause in respect to defendant‘s position as a material witness never existed. State v. Taylor, supra, 81 N.J. Super., at pp. 308-309. Cf. DePater v. United States, 34 F.2d 275, 276, 74 A.L.R. 1413 (4 Cir. 1929): “In passing upon the question of whether the search was legal or reasonable the court cannot escape drawing certain conclusions from the course pursued by the officers themselves.”
After due consideration of the circumstances, observation of the witnesses and evaluation of their testimony, this court is satisfied, and finds as a fact, that the officers did not actually intend to arrest defendant as a material witness. Their purpose throughout was to get defendant in a position
It cannоt be doubted that such an examination is a search within the meaning of the Fourth Amendment. Schmerber v. State of California, 384 U.S. 757, 766-770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). State v. Swiderski, 94 N.J. Super. 14 (App. Div. 1967).
Hence the search at the police station was invalid because the arrest was invalid. Mapp v. Ohio, supra. The arrest was invalid because the officers did not have probable cause to believe defendant was a necessary and material witness who might become unavailable to service by subpoena, and also because they did not in fact intend to arrest defendant as a material witness.
Accordingly, defendant‘s motion to suppress all evidence procured of seized is hereby granted.