STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD A. HOWERY, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY
Argued January 9, 1979-Decided July 20, 1979.
80 N.J. 563
Mr. Dennis G. Wixted, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Thomas J. Schusted, Camden County Prosecutor, attorney; Mr. Wixted, of counsel and on the brief).
Mr. Mark Paul Cronin, Deputy Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (Mr. John J. Degnan, Attorney General of New Jersey, attorney; Mr. Edwin H. Stern, Deputy Attorney General, of counsel; Mr. Cronin, of counsel and on the brief).
The opinion of the court was delivered by
CLIFFORD, J. We granted certification, 77 N. J. 497 (1978), to review the Appellate Division‘s affirmance, in an unreported opinion, of Richard Howery‘s conviction on three drug charges: possession of heroin with David Townsend and John Clark in violation of
Before the Appellate Division defendant alleged error both as to his sentence and as to several trial rulings, including the admission of evidence obtained pursuant to a warrant search of his residence. Howery contended that the search warrant was invalid because the affidavit submitted in support thereof contained false statements material to a showing of probable cause. At the trial level hearing on his motion to suppress that evidence, defendant had sought to call witnesses for the purpose of establishing this falsity. The trial court disallowed the challenge, feeling bound by this Court‘s opinion in State v. Petillo, 61 N. J. 165 (1972), cert. den., 410 U. S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973),1 which held that a defendant may not challenge a facially sufficient search warrant on the ground that a supporting affidavit contains untruthful statements. Likewise in reliance on Petillo the Appellate Division rejected the attack on the warrant, recognizing that “on a motion to suppress evidence seized in execution of a search warrant, examination of a person whose affidavit supported the application for the warrant would normally be precluded“; and that “[t]he existence of probable cause for the warrant would be tested by what was presented to the issuing officer.”
While Howery‘s appeal was pending in the Appellate Division, the United States Supreme Court granted certiorari in a case which squarely addressed the same issue decided by this Court in Petillo, supra, and raised here by Howery, namely, whether a criminal defendant must be allowed to challenge the validity of a search warrant on the basis of alleged false statements in a supporting affidavit. In Franks v. Delaware, 438 U. S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), decided only a few days after this Court granted Howery‘s petition for certification, the Supreme Court ruled as a matter of federal constitutional law that where a defendant makes a substantial preliminary showing of material misstatements in a search warrant affidavit, made knowingly or with reckless disregard for the truth, he must be afforded an opportunity to inquire further into the veracity of the affidavit. If at such inquiry the defendant proves such falsity by a preponderance of the evidence, the warrant is invalid and the evidence seized thereby must be suppressed. 438 U. S. at 155, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.
The Supreme Court‘s Franks decision resolved a conflict that had arisen in the state and lower federal courts over the application of state and federal constitutional principles to veracity challenges, both as to whether such challenges should ever be permitted, and, if so, under what circumstances they should be entertained. See 438 U. S. at 158, 98 S. Ct. at 2678, 57 L. Ed. 2d at 674 nn. 3 & 4. Among the decisions which had addressed the question was this Court‘s opinion in State v. Petillo, supra, wherein we held, with what was then the overwhelming majority of courts, that to permit such challenges was not required by the Federal Constitution. 61 N. J. at 175-76. Nor did our State Constitution compel a different result, ibid., again aligning us with the majority of those courts which had looked to their respective constitutions. In Petillo this Court, in considering the competing considerations that determine the scope of suppression
Insofar as our opinion in Petillo imposed an absolute ban on veracity challenges, unquestionably it has been overruled by Franks. However the Franks court, in holding that veracity challenges must be permitted, was mindful of the concerns which underlay our decision in Petillo. Having articulated those same competing considerations, the Supreme Court concluded that “because of them, the rule announced today has limited scope, both in regard to when exclusion of the seized evidence is mandated, and when a hearing on allegations of misstatements must be afforded.” 438 U. S. at 166-167, 98 S. Ct. at 2682-2683, 57 L. Ed. 2d at 679-80.
The limitations imposed by Franks are not insignificant. First, the defendant must make a “substantial preliminary showing” of falsity in the warrant. Id. at 681, 98 S. Ct. at 2684, 57 L. Ed. 2d at 681. In keeping with the purpose of the exclusionary rule as a deterrent to egregious police conduct, the defendant cannot rely on allegations of unintentional falsification in a warrant affidavit. He must allege “deliberate falsehood or reckless disregard for the truth,” pointing out with specificity the portions of the warrant that are claimed to be untrue. These allegations should be supported by an offer of proof including reliable statements by witnesses, id. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at
We note that subsequent to Franks the California Supreme Court has gone beyond the requirements of that decision by interpreting its own state constitution. That Court has held that a warrant is invalid when a supporting affidavit is found to contain any deliberate untruth, whether the misstatement is material or not, because in its view the discovery of a deliberate falsity, even if itself unimportant, undermines the credibility of the entire affidavit. People v. Cook, 22 Cal. 3d 67, 148 Cal. Rptr. 605, 583 P. 2d 130 (1978). In view of the reasoning in our opinion in State v. Petillo, based in part on an interpretation of this State‘s constitution, we decline to follow the California approach. Hence we hold that New Jersey courts, in entertaining veracity challenges, need go no further than is required as a matter of Federal Constitutional law by Franks v. Delaware, supra.
II
Although Franks v. Delaware was decided subsequent to the suppression hearing and trial in this case, Howery urges that the rule announced in Franks should be applied retroactively. It is his contention that if the Franks rule is applied to the facts as adduced at his trial, he will be entitled to suppression of the evidence seized in the search of his home and thus to a new trial.
In State v. Nash, 64 N. J. 464, 469-70 (1974), this Court identified the four approaches that have been developed with respect to the applicability of a new rule of law: strict prospectivity, general retroactivity, and two forms of limited retroactivity. We there pointed out that in determining
As to the first of the factors to be considered we find persuasive the observation made by the United States Supreme Court in United States v. Peltier, 422 U. S. 531, 535, 95 S. Ct. 2313, 2316, 45 L. Ed. 2d 374, 380 (1975), that “in every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule * * * [it] has concluded that any such new constitutional principle would be accorded only prospective application.” This result has obtained, the Court explained, because the deterrent purposes of the exclusionary rule are not served by retroactive application. Id. at 538-39, 95 S. Ct. at 2317-2318, 45 L. Ed. 2d at 382. More importantly, the reliability and relevancy of the evidence sought to be suppressed in this case is not questioned. The Franks rule, being a new variant of the exclusionary rule device, is not one which concerns either the reliability of the verdict or the integrity of the fact-finding process at a criminal trial. Id.
The dissenting opinion would have us apply Franks retroactively in order to “uphold ‘the imperative of judicial integrity.‘” Ante at 578. While it is true that a secondary purpose of the exclusionary rule is to vindicate the integrity of the judicial process, it is also true that the United States Supreme Court has eschewed any substantial reliance on this rationale in determining the scope of application of that device.
While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence.
[Stone v. Powell, 428 U. S. 465, 485, 96 S. Ct. 3037, 3048, 49 L. Ed. 2d 1067, 1083 (1976).]
With respect to the second of the factors enumerated in Nash, there can be no doubt of the reliance in this jurisdiction on the now-overruled Petillo decision. The trial court here repeatedly referred to Petillo in refusing to allow the defendant to “try the search warrant” at his trial. Unquestionably this ruling was correct under the law applicable at the time the suppression hearing was held; hence, even if it be assumed that the warrant contains perjurious statements, the conviction of the defendant was obtained in good faith reliance on “then-prevailing constitutional norms.” Peltier, supra, 422 U. S. at 536, 95 S. Ct. at 2316, 45 L. Ed. 2d at 380; Linkletter v. Walker, 381 U. S. 618, 636-40, 85 S. Ct. 1731, 1741-1743, 14 L. Ed. 2d 601, 612-14 (1965). And as indicated above, the Appellate Division as well relied on Petillo in upholding the conviction in this case.
It matters not, for purposes of determining the question of retroactivity, that the police officers may have acted in bad faith by “relying” on the Petillo rule in perjuring themselves in order to obtain a warrant. Refusals to apply exclusionary rule decision retroactively have not depended on whether or not the police may have deliberately broken the law in seizing evidence. In Linkletter v. Walker, supra, the Supreme Court recognized that prior to Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) state law en-
Finally, the effect of retroactive application of Franks on the administration of justice would be significant. It would require courts to delve into the allegations of what would doubtless be a considerable number of defendants, to the effect that police officers had lied in affidavits long stale. Having considered the relevant factors, it is our view that Franks should be applied prospectively only-that is, to search warrants issued after the Franks decision, and thus not to this case. Hence, the attack on the search warrant must fail.
III
Despite the conclusion stated above, we go further to demonstrate that our examination of the record discloses the
The sequence of events leading to defendant‘s conviction began with the arrest of one Neil Agostini by Detective George Morris of the Pennsauken Police Department on July 31, 1973. Agostini agreed to cooperate with the police and make a controlled purchase of narcotics. Later that same day Detective Morris listened as Agostini telephoned David Townsend to arrange a purchase of two “bundles,” or 50 bags, of heroin. That evening Townsend arrived at Agostini‘s house. Agostini gave Townsend $240 that had been provided by the police officers, who had earlier recorded some of the serial numbers of this currency, and Townsend departed. He returned at 2:00 o‘clock the next morning driving defendant Howery‘s Volkswagen, whereupon he was arrested by Detective Morris. In Townsend‘s possession were 55 glassine envelopes of heroin as well as a twenty-dollar bill bearing one of the previously-recorded serial numbers.
Based on information supplied by Townsend the police made a warrant search of the residence of John Clark later the same morning and seized 881 bags of heroin and a note. That note, introduced into evidence at Howery‘s trial, read: “It‘s OK, give Dave (2). Rich.” The prosecutor argued at trial that this note was from Richard Howery authorizing John Clark to give David Townsend two “bundles” of heroin-the same heroin that was later bought by Neil Agostini under police supervision.
Following his arrest Clark gave Detective Morris information regarding his drug dealings with Richard Howery. Armed with the information supplied by Clark and earlier by David Townsend, Detective Morris executed an affidavit detailing the circumstances of the arrests of Agostini, Townsend and Clark, and the admission by Clark that defendant Howery was his drug supplier. Based on the affidavit a warrant for the search of Howery‘s residence issued.
Howery alleges two instances of misrepresentation in the search warrant affidavit executed by Detective Morris. He points to two discrepancies between the note seized at the residence of John Clark and the description of that note in paragraph 16 of the affidavit. The note in fact read: “It‘s OK, give Dave (2). Rich.” In the affidavit Detective Morris recited in paragraph 16 that “found in possession of John Clark was a note signed ‘Richie’ telling Clark to give Dave two bundles.” Thus, the affidavit said that the note was signed “Richie” instead of “Rich,” and the word “bundles” was inserted.
As to the use of the name “Richie” instead of “Rich,” it would be absurd to contend that such a minor error is of the kind that might vitiate a finding of probable cause in the warrant affidavit, and under the circumstances before us we attach no weight whatsoever to it. The insertion of the word “bundles” is more troublesome, however. We have seen enough of these cases to have learned that that word is used in the drug trade to specify a quantity of heroin. Its use in the affidavit obviously is an interpretation by the affiant of the literal words of the note. Howery argues that the note standing alone is innocuous and that the calculated addition of the word “bundles” attaches a sinister meaning to an otherwise innocent communication. But this one element of the affidavit cannot be taken out of context; it must be read in connection with the events described in the preceding paragraphs of the affidavit, all of which revolve around the
The second alleged warrant error pointed to by Howery relates to paragraph 19 of Detective Morris‘s affidavit, which reads in its entirety: “That John Clark told me on August 1, 1973, that, Richard Howery customarily keeps a quantity of Heroin at his residence.” This statement is unquestionably material to the finding of probable cause to search Howery‘s residence, for although the affidavit details at some length the drug transactions which led police to conclude that Howery was a drug dealer, the only mention of heroin being kept at Howery‘s residence is in this statement. See Zurcher v. Stanford Daily, 436 U. S. 547, 556, 98 S. Ct. 1970, 1976, 56 L. Ed. 2d 525, 535 (1978).
The veracity of the statement in paragraph 19 came into question during the direct testimony of John Clark, who, as noted previously, testified for the prosecution at Howery‘s trial. He denied telling Detective Morris at the time he was arrested that Richard Howery kept heroin at his house because he knew that Howery never kept drugs at his own house. On redirect examination Clark testified that he may have told Detective Morris that the quantity of heroin utilized in the drug distribution ring was kept at the residence of Jimmy Howery, the brother of defendant, for that was where Clark understood the drugs were kept. The trial judge became “disturbed” by the inconsistency between Clark‘s testimony and the statement attributed to him by Detective Morris in paragraph 19, and in order to clarify the situation he conducted a voir dire of both Morris and Clark. Morris reiterated that he understood Clark to have meant
It is apparent from the foregoing that the misrepresentation, if any, concerning the presence of heroin at the defendant‘s house resulted from a misunderstanding between Clark and Detective Morris as to which Howery Clark was referring to rather than from the type of bad-faith, perjurious misconduct which would necessitate excision of the challenged paragraph from the affidavit under Franks v. Delaware. Defendant‘s claim that the application of Franks to his case should result in a new trial is therefore unfounded.
IV
We have carefully considered defendant‘s remaining contentions and find them to be without merit.
Affirmed.
PASHMAN, J., dissenting. I respectfully dissent. On June 26, 1978-the date upon which the Supreme Court decided Franks v. Delaware, 438 U. S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978)-defendant had not yet exhausted all avenues of direct judicial review to which he was entitled by Rule of Court. In fact, five days prior to Franks we granted the petition for certification filed on his behalf. The strictures of Franks should therefore be applicable to the facts of this case, notwithstanding that both the issuance of the challenged warrant and the trial judge‘s ruling preceded the Supreme Court‘s decision. The majority‘s conclusion to the contrary is predicated upon a misunderstanding of caselaw dealing with the problem of retroactivity in
As the majority emphasizes, the Franks decision squarely overruled this Court‘s holding in State v. Petillo, 61 N. J. 165 (1972), cert. den., 410 U. S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973). As such, Franks clearly changed the law regarding the permissibility of a criminal defendant‘s challenge to a facially sufficient search warrant. The question to be decided is whether, and to what extent, this “new” rule should be given retrospective application.
Supreme Court holdings dealing with the retroactive effect to be accorded decisions expanding the rights of criminal defendants have not followed a uniform path. In certain contexts, the Court has ruled that “new” constitutional doctrines limiting the actions of state agents are retroactive only in the sense that they govern the rights of the parties to the overruling case itself, but not those of other defendants who have been victimized prior to the announcement of the new rule. See, e. g., United States v. Peltier, 422 U. S. 531, 95 S. Ct. 2313, 45 L. Ed. 2d 374 (1975) (legality of border searches); Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967) (right to counsel at pretrial lineup). In other situations, a new constitutional rule has been held applicable to all cases pending direct judicial review at the time the new rule was handed down. See, e. g., Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965) (application of “exclusionary rule” to the states); State v. Nash, 64 N. J. 464 (1974) (prohibition against imposition of more severe sentence following appeal). Finally, certain “new” rules have been held to apply even to those cases in which final judgment has been entered and all avenues of direct judicial review have been exhausted. See, e. g., Pickelsimer v. Wainwright, 375 U. S. 2, 84 S. Ct. 80, 11 L. Ed. 2d 41 (1963) (right to counsel at trial); Eskridge v. Washington State Board, 357 U. S. 214, 78 S. Ct. 1061, 2 L. Ed. 2d 1269 (1958) (free transcript to indigents appealing criminal convictions).
(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.
[Stovall, supra, 388 U. S. at 297, 87 S. Ct. at 1970, 18 L. Ed. 2d at 1203]
See, e. g., Williams, supra, 401 U. S. at 652, 91 S. Ct. at 1152, 28 L. Ed. 2d at 394; Johnson v. New Jersey, 384 U. S. 719, 728, 86 S. Ct. 1772, 1778, 16 L. Ed. 2d 882, 889 (1966); Linkletter, supra, 381 U. S. at 636, 85 S. Ct. at 1741, 14 L. Ed. 2d at 612; State v. Nash, supra, 64 N. J. at 471. In my view, a consideration of each of these factors leads to the conclusion that the Franks doctrine should be applicable to the facts of this, and every other, case in which all avenues of direct judicial review were not exhausted prior to the date on which Franks was decided.
A
The Purpose of the Franks Rule
The majority states that the sole purpose of the Franks doctrine, and indeed the exclusionary rule in general, is that of deterring illegal police conduct. Since any perjury that may have been committed is already a fait accompli, the argument goes, this goal will not be served by suppressing the evidence seized pursuant to the Howery warrant.
Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the govern-
ment will be imperiled if it fails to observe the law scrupulously. * * * If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. * * * [T]o declare that the government may commit crimes in order to secure the conviction of a private criminal * * * would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.
[Olmstead v. United States, 277 U. S. 438, 485, 48 S. Ct. 564, 575, 72 L. Ed. 944, 959-960 (1928) (Brandeis, J., joined by Holmes, J., dissenting)]
Instead of discussing this “judicial integrity” purpose of the exclusionary rule, the majority takes refuge in Justice Rehnquist‘s observation that decisions expanding individuals’
Almost every case in which a new rule has been applied purely prospectively has involved a situation in which policemen reasonably believed in good faith at the time of a search or seizure that their conduct was in accordance with the law. Admission of the fruits of those searches at trial has therefore been deemed not to violate the “imperative of judicial integrity,” even though decisions subsequent to the searches have held that the conduct engaged in by the law enforcement officers was not permitted by the Constitution. See, e. g., United States v. Peltier, supra; Williams, supra; Stovall, supra.2
The majority‘s “deterrence” argument is also flawed in that it assumes that the deterrence rationale itself will not be served by retroactively applying the Franks doctrine. It is true, as the majority emphasizes, that any perjury3 that may have been committed by Detective Morris is already a fait accompli. This result, however, will obtain in any situation in which illegally seized evidence is sought to be introduced at trial - even if the policeman involved has deliberately defied a controlling
The conclusion is therefore inescapable that both the “judicial integrity” and “deterrence” goals sought to be achieved by the exclusionary rule will in fact be furthered by applying Franks to the facts of this case. Moreover, both goals will be disserved if Franks is not so applied in that policemen who have in bad faith perjured themselves before magistrates will be rewarded for their efforts.
B
The Extent of Reliance by Law Enforcement Authorities Upon Petillo
The majority states that “there can be no doubt of the reliance in this jurisdiction on the now-overruled Petillo decision.” Ante at 570. In support of this proposition, it points out that both the trial court and the Appellate Division relied in good faith upon that case when denying Howery the right to challenge the facially sufficient search warrant.
As discussed in Part A supra, however, any perjury that may have been committed by Detective Morris cannot be said to have derived to any degree from a good faith reliance upon Petillo. That case merely held that a criminal defendant could not attack the validity of a facially sufficient search warrant. It did not legitimize false swearing.
C
Effect On the Administration of Justice
The majority states that retroactive application of Franks would be detrimental to the administration of justice in that “[i]t would require courts to delve into the allegations of what would doubtless be a considerable number of defendants, to the effect that police officers had lied in affidavits long stale.” Ante at 571. To the extent that the majority‘s remarks pertain to cases in which final judgment had been entered and all avenues of direct judicial review were exhausted prior to the Franks decision, I agree. Any other conclusion would likely inundate our lower courts with a deluge of petitions supported by such “stale” evidence.
According this degree of retroactive effect to Franks is especially compelling in view of the fact that it will support both the “judicial integrity” and “deterrence” purposes of the exclusionary rule. Further, it will not - as will the majority‘s holding - place our imprimatur upon the conduct of police officers who have disobeyed the law by swearing falsely before magistrates.
II
Despite its ruling that Franks is not here applicable, the majority examines the record below in order to establish that defendant‘s convictions would stand even were he permitted to attack the search warrant in question. A careful reading of that record, however, demonstrates that the majority‘s analysis is deficient in many material respects.
It is undisputed that the note seized by Detective Morris at John Clark‘s residence read “It‘s OK, give Dave (2). Rich.” In his affidavit, however, Morris swore that “found
The main “attendant circumstance” upon which the majority bases its conclusion - i. e., that inculpatory evidence was in fact located at Howery‘s residence was not, however, known until after the warrant was secured and the search conducted.5 Aside from those portions of the Morris affidavit which were allegedly sworn to falsely, the only “circumstances” linking Howery to heroin were statements in the affidavit that (1) Dave Townsend had sold heroin to Noel Agostini on August 1, 1973, and had driven to the point of sale in a car registered in Howery‘s name; and (2) Howery and Townsend “have been seen together at known narcotics spots.” In my view, these circumstances alone were hardly sufficient to convince a magistrate that “(2)” referred to two bundles of heroin. It is noteworthy that at Howery‘s trial, Townsend testified that the “(2)” denoted two cases of liquor.
This error on the majority‘s part is, however, small in comparison to the deficiencies extant in its analysis of Howery‘s second allegation of false swearing. In his affidavit, Detective Morris swore that “John Clark told me on August 1, 1973, that, Richard Howery customarily keeps a quantity of Heroin at his residence.” The majority correctly holds that this statement was material to a finding of probable cause. Nevertheless, by means of arbitrary ad hoc “factfinding,” it concludes that any misrepresentation present in the affidavit
The manner in which the majority found these “facts” is somewhat puzzling. At Howery‘s trial, Clark testified that he did not tell Morris that Howery kept narcotics in his home. Morris testified that Clark had indeed given him such information. From this testimony, the majority concludes that the challenged portion of Morris’ affidavit was the product of an innocent misunderstanding on Morris’ part. This conclusion is reached despite the fact that the majority did not observe Morris’ demeanor at the time he uttered the above testimony, and hence is in no position to judge his credibility. See State v. Singletary, 80 N. J. 55, 62-63 (1979). The majority appears to find it inconceivable that Detective Morris may have sworn falsely on the stand - a possibility which, of course, would require that this case be remanded to the trial judge for a Franks hearing.
More importantly, while engaging in its ad hoc “fact” finding, the majority completely ignores the fact that at trial Howery requested and was denied permission to call additional witnesses in order to substantiate his allegations of perjury. If Franks is to have any significance, at the very least a defendant must be allowed to introduce evidence in support of his cause before his petition is ruled upon. The majority‘s conclusion to the contrary not only does disservice to the
Accordingly, I would remand this case for a Franks hearing at which defendant may attempt to substantiate his allegations of perjury. If he fails in this endeavor, the convictions will stand. Should he be successful, however, his convictions must be reversed and a new trial ordered.
For remandment-Justice PASHMAN-1.