*1 JERSEY, STATE OF PLAINTIFF-APPELLANT, NEW v. OTTAVIO NOVEMBRINO, DEFENDANT-RESPONDENT. Argued February January 198 6 Decided 1987. *3 Prosecutor, argued the Flynn, E. Assistant James First (Harold Ruvoldt, Jr., County Hudson appellant J. cause Prosecutor, attorney). argued respondent {Ashleyand
Joseph Charles the cause for Charles, attorneys). General, Nodes, Attorney argued the cause Deputy
Allan J. Jersey Attorney Cary of New for amicus curiae General {W. Edwards, Jr., General, Attorney attorney). *4 Defender, Harkov, Deputy D. Assistant Public
Anderson of the Public argued the cause for amicus curiae Office Jr., Smith, Acting Jersey Public Defender of New S. {Thomas Defender, attorney). Director, a brief on
Jeffrey Fogel, Executive submitted E. of New curiae American CivilLiberties Unión behalf amicus Jersey. Jr., a brief on of amicus
Joseph Hayden, submitted behalf A. Jersey Lawyers of New Defense Association Criminal curiae Jr., attorney; and {Joseph Hayden, Harvey A. Ju- Weissbard Katz, brief). on Margulies dith opinion of the was delivered The Court STEIN, J. 1961, Supreme decided
Since when United States Court 1684, 1081, Ohio, 643, New Mapp 6 L.Ed.2d U.S. compelled by the federal Jersey and her sister states have been evidence to exclude from the State’s case-in-ehief constitution The in fourth amendment. so-called obtained violation “exclusionary applied rule” in criminal cases has been federal rights adopted protect since when the rule first States, by the fourth United secured amendment.1 Weeks v. 341, 58 writing Day, for a L.Ed. 652. Justice 34S.Ct. U.S. “the Court, exclusionary that without unanimous observed * * * * * * value, might and as well 4th of no Amendment t stricken from the Constitution.” Id. 34 S.Ct.a at 656. L.Ed. decision,
For the time the Court first since the Weeks government’s application modified rule’s Leon, 897, 104 case-in-chief. United States held seized 82 L.Ed. 2d the Court that evidence need not warrant cause pursuant to a issued without warrant, police if who executed the be excluded officer judged objective reasonably of a well-trained by the standard officer, good on the warrant relied faith defective case, by the asked gathering evidence. In this we are Attorney County and to decide the Hudson Prosecutor General Constitution, I, Jersey which paragraph if 7 of the New article proffered concerning the been of several that have 1For a discussion theories Stewart, Mapp purpose and v. Ohio rule see “The Road Development Exclusionary Beyond: Origins, Rule Future of the (1983), Cases,” Kami 83 Colum.L.Rev. 1380-85 Search-and-Seizure sar, (Should) ‘Principled (Did) Exclusionary Rest Basis’ Rule "Does Creighton ‘Empirical Proposition’?,” L.Rev. 565 Rather than an *5 100 against
incorporates protection almost verbatim the unreason amendment, able searches and seizures in the fourth set forth exclusionary of recog will tolerate modification rule that exception good-faith nizes the established United States Leon. Supreme Court posed
We of approach controversy issue here mindful engulfed has exclusionary inception.2 its since As Janis, acknowledged in United States v. Justice Blackmun U.S. 3021, 3028, 1046,1056 (1976), “The debate within the Court the exclusionary on rule has always been warm one.” sharp
Characteristic of the criticism the rule has provoked Burger, are observations of Chief Justice dissent ing Agents Bivens Unknown Six Named Fed. Bureau of Narcotics, 388, 419-20, 1999, 2016-17, L.Ed. 2d (1971): right graded I submit that has least much society expect rationally judges from of the universal responses punishment” we inflict place “capital all on evidence when error is shown in its Yet for over 55 acquisition. * * * increasing legal our years, and has scope intensity system treated dissimilar as if cases were the same. Our to the vastly adherence they change, our rule, resistance and our refusal even to acknowl- edge bring the need for effective enforcement mechanisms to mind Holmes’ well-known statement: revolting “It have better for than it no reason a rule of law that so was grounds revolting laid down in the time of IV. It is still if more Henry long it was down upon since, which laid have vanished and the rule simply blind from imitation persists The Path of the past.” Holmes, Law, (1897). L Harv Rev characterizing doctrine as an anomalous and ineffective suppression regulate
mechanism with which to law enforcement, I intend no reflection motivation those members who it this Court would be means hoped enforcing Judges being the Fourth Amendment. cannot faulted for Rights offended arrests, searches, seizures violate the Bill of regulate statutes intended to officials. But we can and faulted public should be clinging unworkable and irrational of law. concept & Wasserstrom, 2 SeeMertens "The Faith Good Exclusionary Exception Deregulating Derailing Rule: Law," Police and 365-66 70 Geo.L.J. & nn. 4-6 *6 rule sharp perception In contrast is the of the Ohio, supra: in by Mapp Justice Clark v. articulated (then Judge) Cardozo, those as did Justice that under our There are who say, go to free doctrine criminal is because the constitutional exclusionary “[t]he People Defore, v. at has 242 NY NE [13], constable blundered.” [585], this will be the result. as was But, some cases undoubtedly [1926]. Elkins, judicial in is another consideration —the of said “there imperative integrity.” U.S. 364 US at 222 at 1447, [Elkins ] [206], [80 goes (1960)]. but it is free, must, The criminal if he the law that L.Ed.2d government Nothing free. more than its failure sets him can destroy quickly disregard charter its or its of the of its own laws, worse, to observe own dissenting, said Olmstead v United in Brandeis, As Mr. Justice existence. States, (1928): ALR 376 277 US 72 LEd 48 SCt “Our 438, 485, good For it ill, is the the teacher. for Government potent, omnipresent its If the Government teaches the whole becomes example.... people by to it for it invites man become a law lawbreaker, law; every breeds contempt it himself; unto invites anarchy.” [*******] ignoble left State tends the The shortcut to conviction open destroy of of restraints the liberties the
entire constitutional on which people system Having right recognized in once embodied Fourth rest. that privacy right against is and that the to be secure Amendment enforceable States, against therefore, rude of state constitutional in is, invasions officers privacy by longer origin, right an can to remain we no empty promise. permit it in the same manner and to like effect other basic Because is enforceable longer rights no it to secured Due Process we can Clause, permit the name of at the of officer law enforce who, revocable whim any police enjoyment. decision, its Our founded reason itself, ment chooses to suspend gives individual no more than that which Constitution truth, and guarantees to which law him, to the officer no less than that honest judicial integrity so to the courts, necessary entitled, and, enforcement 81 S. justice. Ct. 1963-64, true administration of [367 (footnote omitted).] at 1092-93 con- question appreciation requires us before flicting and the exclusion- purpose effectiveness views “good-faith” necessity ary and the wisdom Moreover, recognized we exception Court Leon. system in context of federalist which address this issue courts, laws in federal and state “enforcement criminal encourages application episodes, identical involving sometimes seizure,” Hunt, governing search and State of uniform rules (1982), yet because a state mindful 91 N.J. may protection afford enhanced individual liber- constitution for ties, uncritically we adopt “should not federal constitutional interpretations Jersey merely for the New Constitution (Pashman, consistency,” J., concurring). sake id. at 355 I Defendant, Novembrino, possession Ottavio was indicted for dangerous contrary of controlled substances 24:21- N.J.S.A. 20(a)(1),(4), possession dangerous of controlled substances 24:21-19(a)(1). with intent to distribute in violation of N.J.S.A. suppress pursuant A motion to evidence was filed to Rule 3:5-7. *7 hearing suppression sharply
The conflicting resulted in ac- surrounding counts of the circumstances defendant’s arrest and subsequent search of his service station. to According Higgins, Detective whose affidavit led to the issuance of the warrant, disputed stopped by search defendant was two offi- Bayonne Department cers from the at p.m. Police about 6:15 stop shortly June 1983. The occurred after Novembrino proceeding closed his station and service was home automo- search, One pat-down bile. officer conducted a while the other officer inspection conducted a limited interior defend- ant’s agreed go automobile. Defendant to with the officers to police headquarters. ear, He to drove the station in his own accompanied by one of the Higgins officers. Detective testified placed that Novembrino was not under and was to arrest free leave, although right neither officer him of advised his to do so. being rights,
After advised of his Miranda Novembrino refused to consent to a search of his station. At about 6:30 p.m., message Higgins requesting Detective left a that municipal Bayonne judge telephone began court him. He then support type affidavit in of a search warrant. Detective Higgins conceded that this such he was first affidavit had prepared and preparation ever approxi- estimated that its took mately ten municipal judge or fifteen minutes. When the court shop- him telephoned, Higgins to meet a arranged Detective p.m. They approximately judge 6:50 The ping center. met signed Hig- the affidavit and the warrant. Detective reviewed radio, Kelly proceeded to the gins spoke with Detective and Kelly. Detective After gas where he met defendant and station warrant, he unlocked shown the the door Novembrino was contra- pointed station and out the location the service band. testimony substantially was different. He
Novembrino’s pulled approximately 6:45 that him over stated the officers while one officer him the other p.m. Immediately, searched police headquarters was then his He taken searched car. Kelly Higgins was strip-searched. he Detectives where gas Novembrino testified him to his station. then drove back left and therefore could Higgins police headquarters never that returning municipal judge met court before not have Novembrino, Kelly According to Officer took service station. The officers searched and unlocked the door. key defendant’s Defendant testified the contraband. the station discovered they warrant, although he he asked the if had until eleven o’clock approximately warrant not shown search night. hearing, affida- suppression argued At the defendant the warrant was and that did not establish cause vit court had seized. trial issued after evidence been *8 warrant issued was initially declined to consider whether the search, evidence on suppressed the or after the before support in of the warrant that submitted ground the affidavit appeal, Appellate probable cause. On failed to establish hearing when matter for a to determine Division remanded testimony, hearing the trial After issued. the warrant was search had obtained the determined that officers court Appel- of station. The prior to search the service warrant it was finding on the basis that that Division affirmed late credible supported sufficient evidence. Division, Appellate argued Higgins the State that the sufficient to probable
affidavit was establish cause. The crit- portion alleged: ical affidavit I from received information has informant who reliable in several proven (with investigations supplied), he information that ‘Otto’ above description, marijuana. engaged illegal sales of and cocaine informant stated My gas drugs that Otto his station at He usually above location. keeps (informant) drugs gas dealing also that stated he witnessed ‘Otto’ from his along subject station. I, with Det. conducted a Scianni, surveillance of Ralph on Thurs., and his station between the hours of PM and 7:00 6/2/83, PM, 3:00 meeting leaving and observed Otto with several after his and station persons, making drug During we what believed be transactions. surveillance, we making observed one a on person transaction with Otto and checked his vehicle drugs. and called the squad narcotics his inquire relationship They us said told that has been arrested for person cocaine other violations and drug felt that Otto and the other are involved in they From person activity. information received our informant and our do from from we feel observations, gas illegal a that search Otto’s station should be conducted for contraband. belongs We checked on of the station and it to Otto who have ownership we investigation. rights on this Otto was headquarters advised his presently a and refused search of his station but be nervous. appeared very The Appellate Division concluded that the affidavit failed to probable establish cause: The affidavit here involved revealed a that informant concluded simply drug for unknown reasons that defendant was a a dealer, that person previous gas arrested ly cocaine was seen at defendant’s station possession engaged in some activities which caused edu detective, whose unspecified training and cation, are to conclude that activi unknown, criminal experiences taking gas
ties the form of violations of Title 24 were at the station. place The of the circumstances out failed in the affidavit to contain a totality spelled single objective tending engender grounded fact “well suspicion” * * * being crime was committed. We cause conclude, therefore, probable Novembrino, N.J.Super. (1985) was established. [State (citation omitted).] argued State also if cause was not estab- lished, the evidence should nevertheless admissible on the good-faith recognized basis of the exception by the United Supreme Appellate States Court in Leon. The Division ac- knowledged that if Jersey, Leon followed in were New it would thereby apply retroactively admissibility determine the the evidence majority obtained defendant’s A station. Appellate Division also satisfied that Higgins Detective *9 warrant, upon relied the which objectively reasonably and had judge. Accordingly, by a detached and neutral had been issued majority adequate- found that the record Appellate the Division good-faith exception should be ly the issue the raised whether our Constitution. applied under State panel Division determined that majority Appellate A of the exception good-faith be- Jersey recognize should not New requirement of it the constitutional cause would undermine concurring opin- In a N.J.Super. at 244. probable cause. 200 ion, Judge Simpson agreed probable cause had not been However, appli- he that the Id. at 245. concluded established. by inappropriately considered cability of Leon doctrine was by been made court no record had the trial majority, since good faith on the search whether officer had relied as to granted the State’s motion for at 245-46. We warrant. Id. (1985). appeal, N.J. leave
II sufficiency of concerns the The first issue we confront The prompted issuance of the warrant. affidavit cause, is the affidavit by which we measure standard fourth amendment and article imposed by both the the standard I, Jersey New Unlike 7 of the Constitution. paragraph rule, judge-made and not derided critics as constitution,3 probable cause is constitu mandated determining and whether a search tionally-imposed standard position it of indis- Accordingly, occupies seizure lawful.4 Evidence?,” 3 See, Why Suppress e.g., Wilkey, Exclusionary Valid Rule: "The 62 Judicature 215 provides: States Constitution amendment to United 4 Thefourth houses, persons, papers, people and right be secure their violated; seizures, effects, against not be and shall unreasonable searches cause, supported by upon probable Oath issue and no Warrants shall searched, affirmation, describing place particularly to be or persons things seized. *10 putable significance Supreme in search and seizure the law. As Henry v. United States: Court noted in requirement probable deep history. The of cause has roots that our are warrant, general person The the which name of the to be arrested was left blank, assistance, against inveighed, and the writs of which James Otis both perpetuated practice allowing police oppressive the the of to arrest and search suspicion. place judicial control, showing on Police control took the of no since “probable magistrate required. Virginia of cause” before The Declara- Eights, adopted 12, 1776, against practice. tion of June rebelled philosophy That later was reflected in the Fourth And Amendment. as the early immediately show, adoption American decisions both before and after its suspicion, report, "strong suspect” commonrumor or or even reason was not adequate support principle a warrant for arrest. And that has survived to day. this
[********] required guilt hand, necessary. Evidence to establish not is On the other good part arresting enough. faith is officers Probable cause prudent exists if facts and circumstances known to the officer warrant a believing important, man in that the offense has been committed. It is we think, enforced, requirement strictly this be for the standard set protects 98, 100-02, Constitution both officer and the citizen. U.S. [361 168, 170-71, (1959) (footnotes omitted, 4 L.Ed.2d 137-38 citations omitted).] Any search person property nonconsensual of a or his is a significant invasion privacy rights. of fundamental Neverthe- less, enforcement of the requires criminal laws employ proof searches to obtain probable-cause of crime. The requirement constitutionally-prescribed standard for dis- tinguishing unreasonable searches from those that can be toler- society: ated in a free long-prevailing safeguard These standards seek citizens from rash and privacy charges unreasonable interferences with and from unfounded of crime.
They leeway give enforcing community’s also seek to fair law the I, paragraph Jersey provides: Article 7 of the New Constitution right houses, people persons, papers, to be The secure in their and effects, against seizures, violated; unreasonable searches and shall not cause, except upon and no probable supported warrant shall issue oath affirmation, particularly place describing or to be searched and the papers things to be seized. confront the course of Because which officers situations many protection. ambiguous, executing must be allowed for their duties are or less room more on their the mistakes must be those reasonable some mistakes But part. acting leading to their conclusions of on facts men, sensibly probability. affording the best cause is a nontechnical rule of probable conception practical, accommodating opposing these often that has been found for compromise Requiring To allow more law enforcement. interests. would unduly hamper law-abiding whim the officers’ be to leave citizens at mercy less would States, [Brinegar v. United 1302, 1311, 160, 176, caprice. (1949).] L.Ed. 1890-91 signifi recognized has the historical steadfastly This Court indispensable criterion for cance cause as *11 Macri, In determining validity the of a search. State N.J. our (1963), unequivocally confirmed insis Justice Jacobs be probable would not warrants without cause tence that issued Jersey: in New tolerated great is not a mere but is formality for search [a]
The warrant requirement and in free men substantially constitutional embraced by expressed principle language It has its in state roots identical both our federal and constitutions. highly infringements English The of in and colonial abusive history. deep general and writs the of warrants of and which were incidents freedom privacy allowing were too searches on alone suspicion only arrests and assistance inclusion, on the the insisted wisely well-known to American settlers. They right Rights, the Amendment that in the Fourth the Bill provision against shall not be secure and seizures the to be unreasonable searches people cause, but issue, upon supported violated and that “no Warrants shall probable describing be searched, the or and affirmation, place Oath by particularly * * * things or be seized.” and the persons to the essentials a firm with respect Amendment sets standard The [Fourth] issue is not to Under terms the search warrant except of a warrant. its search determina- or affirmation. The crucial oath cause, supported by upon probable judge. issuing not officer but a neutral made the by tion is by he judge issuance, is in a to make his determination Before position underlying which facts or circumstances be made aware of the must properly being believing violated. that law was would warrant man prudent ******** * * * recognize, Governing as Warrants Rules Search expressly Our recent showing of cause a verified probable the constitutional need for must,
they acknowledge issuing magistrate; the basic and they implicitly before show- asserted, have which federal cases repeatedly requirement, underlying ing or circumstanc- facts of belief or be not merely suspicion, being believing man in the law es which would warrant a prudent whatever to no inclination so, we have Even if we are at do liberty violated. great safeguard- restrict undermine the force or uniform of that applicability (citation ing omitted).] 260-61 [Id. requirement. Before sufficiency we examine the of the affidavit relied on by judge case, this we shall review both federal state case order to law determine standard to be used in evaluating probable whether cause was Detec- established Higgins’ tive affidavit.
A. Probable Cause —Federal Case Law The evolution of applying probable-cause federal case law to specific standard search has distinguished warrants not been Amsterdam, clarity consistency. See “Perspectives Amendment,” 35 Minn.L.Rev. Fourth of its significant probable-cause one most recent and decisions, Supreme Court observed that teaching bearing the central of our on the perhaps decisions probable-cause dealing it standard is a nontechnical “In “practical, conception.” ... name we
probable cause, deal with These very implies, probabilities. not are are technical; the factual and they considerations practical everyday legal life on which reasonable and act.” [Illinois prudent men, technicians, Gates, U.S. (1983) 213, 231, 2317, 2328, 76 L.Ed.2d (quoting Brinegar v. United States, 69 160, 175-76, (1949)).] 1310-11, 93 L.Ed. practical, Court’s characterization cause as a *12 concept nontechnical frequently repeated, has been even cases in which the Court was sharply divided as to whether probable See, e.g., cause had been established. Massachusetts Upton, v. 727, 730-33, 466 U.S. 2085, 2087-88, S.Ct. 104 80 721, Harris, (1984); L.Ed.2d United v. 726-27 States U.S. 403 573, 577, 2075, 2079, 91 S.Ct. 723, (1971); 29 L.Ed.2d 730 Spinelli States, United 410, 419, 584, U.S. S.Ct. 393 89 Ventresca, 590-91, 637, 21 (1969); United 645 States 102, 108, U.S. 741, 85 S.Ct. 684, 13 L.Ed.2d States, (1965); Draper v. United 307, 313, U.S. S.Ct. 333, 329, 327, 3 L.Ed. 2d (1959). Justice Potter Stewart attempted explain why judiciary’s application probable practical cause though and it nontechnical standard — divergent to its generated markedly such views as may be—has mandate: judge of no The a occupation requires
The fourth amendment is “technicality.” sweeping language presenting the infinite of of to cases variety its application judge, being of there is that in real life. art a if situations arise The factual announcing of varied art, clear rules in the context these infinitely such is government and conscientious rules can understood observed cases, that be regarded If cases has come to be the outcome of fourth amendment officials. turning it is in because of the inevitable human on “technicalities,” part articulating shortcomings judges fourth faced the task of amendment range doing justice in in a broad situations while principles applicable enough. good judges do but that is not best, always case. Most their particular Mapp Origins, and v. Ohio and The Beyond: Road to Development [“The 83 Colum.L. Cases,” Rule in Search-and-Seizure Future of Exclusionary (1983).] Rev. probable is a Apart theme cause from the central that probable-cause deci concept, Supreme Court’s nontechnical such sustaining principles. few generated sions have One by a principle probable is not established concluso cause is provide magistrate ry with sufficient affidavit that does to whether the independent determination as facts to make an leading proposition this warrant issue. case should 41, 54 States, L.Ed. United Nathanson v. There, challenged that a feder warrant recited al officer cause and does believe
has stated under his oath that he has to suspect foreign origin a more to wit: Certain merchandise, liquors particular certain given, not been which the duties have paid, of which cannot upon description brought to law, into the contrary or has otherwise been United States which is now contained within the that said merchandise premises deposited dwelling being as a 2 frame J.J. said described story Nathanson premises 54 S.Ct. at 78 L.Ed. at at [Id. at 117 No. Bartram Ave. 160.] located had issued without held that the warrant been The Court cause, observing ** * dwelling rest nothing may that a warrant to search private indicates supporting or belief without disclosure mere affirmance of suspicion upon 54 78 L.Ed. [Id. 161.] facts or circumstances. Court, by the consistently followed Nathanson has been by the officer conclusory allegations asserted whether the are incorporated in the are by an informant whose observations *13 110 Whiteley Wyoming affidavit. See v. Warden State
officer's Penitentiary, 560, 564, U.S. S.Ct. 1031, 401 91 28 (1971); Spinelli States, supra, 306, v. United L.Ed.2d 311 393 U.S. 410, S.Ct. v. 584, United States 637; 89 21 L.Ed.2d Ventresca, supra, 102, 741, U.S. S.Ct. 684; 380 85 13 L.Ed.2d Ohio, Beck v. 89, 379 U.S. 223, S.Ct. L.Ed.2d (1964); 85 142 13 Aguilar Texas, v. U.S. S.Ct. 108, 1509, 378 84 12 L.Ed.2d 723 States, Rugendorf v. (1964); United S. 528, U.S. 84 Ct. 825, 376 States, L.Ed. Jones v. United (1964); 257, U.S. 11 2d 887 362 80 725, S.Ct. (1960), 4 grounds, L.Ed.2d on 697 overruled other Salvucci, United v. States 83, U.S. 100 S. Ct. 65 L.Ed. 2547, 448 States, v. (1980); Giordenello United U.S. 2d 619 480, 78 S.Ct. 1245, L.Ed.2d 1503
The allege Court’s insistence that an officer’s specif- affidavit ic facts and principle not conclusions is on the based the inferences from the facts which lead drawn complaint ‘‘[must] by magistrate being neutral judged engaged and detached instead of the officer ferreting in the often out crime.” The competitive enterprise purpose magistrate, is to then, enable the complaint, appropriate Commissioner, here to determine whether cause” a warrant “probable required support judge exists. The Commissioner must for himself persuasiveness complaining facts relied officer to show cause. He should not probable without mere accept question conclusion that complainant’s person sought
whose arrest
is
has committed a crime.
States,
United
[Giordenello
357 U.S.
(quoting
at 486,
supra,
S.Ct.
Johnson
1250,
Another principle only entrenched is that not amay magistrate hearsay determining cause, consider probable hearsay provide alone can a sufficient basis for warrant. Although the impliedly accepted Court had hearsay as a basis States, Draper see v. United prior cases, cause supra, 358 U.S. 307, 79 S.Ct. 3 L.Ed.2d 327 and Brinegar 329, States, supra, v. United 338 U.S. 93 L.Ed. States, held in Jones v. United expressly it that an officer’s affidavit could rely on provided by information an informant: here whether question an affidavit which sets out observations personal relating to the existence cause to is to be search deemed insufficient by
Ill
of
it sets out
the affiant’s
but those
of the fact that
not
observations
virtue
score,
long
so
as
is not to be deemed insufficient on
another. An affidavit
269,
crediting
hearsay
presented.
substantia]
80
the
at
S.Ct.
a
basis for
[Id.
735, 4
at
at
L.Ed.
707.]
attempt
not
to set standards
for
Jones
In
the Court did
crediting
determining
“a
basis for
what constitutes
substantial
in
by the
hearsay.”
the
That
task was undertaken
Court
1509, 12
Texas,
L.Ed.
Aguilar
supra, 378
84 S. Ct.
108,
U.S.
410,
States, supra, 393
Spinelli
v. United
U.S.
2d
and in
decisions,
superseded
21
These
S.Ct.
89
L.Ed.2d 637.
two
Gates, supra,
Illinois
U.S.
462
103
1983
at
past
the
have for the
two decades been
76 L.Ed.2d
concerning
sufficiency
the
of an infor
center of the debate
establishing probable cause.5
mant’s observations
for
the defend-
Aguilar, warrant
In
to search
narcotics
alleged:
the basis of an affidavit that
ant’s home was issued on
person
do
and
have
reliable information from credible
Affiants
received
heroin, marijuana,
narcotic
barbiturates
other narcotics and
and
believe that
premises
purpose
being kept
for
paraphernalia
the
are
at the
described
above
provisions
84
at
contrary
at
S.
and
to the
of the law.
Ct.
[378
sale
use
1511, 12
725.]
admissibility of
evidence
sustaining
challenge
warrant,
the Court established
seized
execution of
infor-
sufficiency
of an
to determine
“two-pronged test”
appris-
First,
tip
must include information that
tip.
mant’s
allegations
informant’s
magistrate of the basis for the
es the
second,
(the “basis-of-knowledge”
and,
affiant must
prong);
Faith,’
Cause,’
Kamisar, “Gates,
Beyond,” 69 Iowa
‘Good
and
‘Probable
5 See
Disturbing
Mascolo,
(1984);
Some
"Probable Cause Revisited:
551
L.Rev.
Gates,”
Eng.L.Rev.
Emanating
New
Implications
from Illinois v.
W.
Cause,
LaFave,
(of
Imper
(1983);
Vagaries
Improbable
Amendment
"Fourth
Askew),”
View,
Balancing
Privacy,
74 J. Crim.L.
ceptible
Notorious
Plain
Problem,"
Livermore,
(1983);
Draper-Spinelli
Criminology
“The
&
Rebell,
(1979);
"The
Informant and the Fourth
Undisclosed
Ariz.L.Rev.
(1971);
Standards,"
Meaningful
Yale L.J. 703
for
Amendment: A Search
Informer,”
Note,
Colo. L.Rev. 357
First-Time
43 U.
Cause and the
"Probable
Arrest,”
Mather,
(1972);
Tip
Cause for Search
Informer’s
as Probable
"The
Comment,
(1969);
the Basis
“Informer’s Word
54 Cornell L.Rev. 958
Courts,”
Federal
Cause
Probable
Calif.L.Rev.
magistrate
inform
the basis for his
on
reliance
credibility (the “veracity” prong).
informant’s
See Illinois v.
Gates,
267, 103
supra,
L.Ed.2d at 729 Giordenello v. United 357 States, U.S. S.Ct at 78 486, United at States, Johnson 333 U.S. 1250, L.Ed.2d at at S.Ct. 1509; 14, 440) (footnote 92 L.Ed. at at omitted).] 369, omitted, citations later, years States, Five in Spinelli v. United 410, 637, 584, sought the Court clarify Aguilar by delineating the manner in which the “two- pronged applied test” should be allega- when the informant’s tions, although alone, inadequate standing partially are verified by police investigation. The Spinelli affidavit in stated that a reliable had operat- informant the FBI that “Spinelli advised is ing a wagers accepting handbook and and disseminating wager- ing telephones information means of the have which been assigned the numbers 4-0029 WYdown and WYdown 4-0136.” Id. at at L.Ed.2d at 642. To corroborate tip, informant’s Spinelli affidavit recited that was ob- period served for days, of five during four he which Missouri, traveled from Illinois parking adjacent in a lot an apartment entering apartment house and occupant whose possessed telephones assigned phone the same numbers as provided those by the Although concluding informant. that the cause, FBI affidavit insufficient to was establish suggested that deficiencies a search warrant affidavit Court incorporating from an informant could be remedied information “veracity”: respect “basis-of-knowledge” both with Aguilar, allegations tip inadequate which If the is found under other hearsay report then be contained should corroborate information however, stage well, Aguilar this enunciated in considered. At as the standards fairly magistrate’s He must ask: Can it be said that must inform the decision. by independent tip, parts of it have corroborated even when certain been sources, trustworthy tip pass Aguilar’s which tests without is as would independent L.Ed.2d at S.Ct. at [Id. 643.] corroboration? Spinelli if an majority in observed that affidavit of the informant’s in its recitation as to basis deficient tip knowledge, self-verifying of the informant’s can details deficiency: this overcome detailing the manner which the information In the absence of a statement tip gathered, especially important that the describe the accused’s it is magistrate may activity he is know that criminal sufficient detail circulating in relying something rumor more substantial than a casual general reputation. merely on an individual’s an accusation based
underworld or
the FBI’s efforts. telephones by Spinelli specified the informant could used the cated that have by support purpose. the inference that cannot be said to both some This itself charge trustworthy generally he had made his and that the informer was way. Once against Spinelli a reliable of information obtained on basis police Independent Draper comparison. again, provides work a relevant provided by had small detail that been much more than one case corroborated There, upon meeting on the police, inbound Denver train informant. Hereford, morning specified saw man whose dress informer second apparent description. was then corresponded precisely to It Hereford’s detailed cloth; fabricating report since out whole his informant had not been that the report experience may recognized was of the sort which in common as having way, probable perfectly been obtained in a reliable it was clear that 418, 590, cause been at had established. [Id. S.Ct. at L.Ed.2d at 644.]6 Gates, supra, v. Illinois the Court its abandoned exclusive reliance on the Aguilar-Spinelli two-pronged test for evaluat- ing provided by informant, information adopting place in its totality-of-the-circumstances analysis traditionally “the has 238, informed cause determinations.” However, at 548. the Court took pains point out that question independent police investigation 6 The remedy whether can also deficiency knowledge" subject in the informant's "basis of has been sharp Maryland Appellate Judge Moylan, academic debate. Charles an ac
knowledged
authority,
investigation
fourth-amendment
concludes that
is
knowledge:
irrelevant to the
basis of
informant's
knowledge" prong
"veracity,"
The "basis of
assumes an informant’s
("What
proceeds
probe
then
and test his conclusion:
are the raw facts
upon which the informant based his conclusion?” "How did the informant
precisely
obtain those facts?” "What
did he
or
see
hear or smell
touch
else,
firsthand?” "If he heard the facts from someone
what makes that
person
person
third
‘credible’ and
did
how
that third
come
the knowl-
edge?”).
judge
must ascertain the source for the raw data —the
product
weigh
of someone's senses —and then
that data for
He is
himself..
part
testimony
concerned
provides
not with that
of an affidavit or
which
story
information about
but with the recitation of
informant
coming
the informant.
from
********
“independent
technique
repair
[T]he
verification”
cannot
defect
knowledge” prong. Verifying
story
part
"basis of
the truth of
aof
does
nothing
story’s
either to ascertain the
source or
check the informant’s
perhaps
State,
507, —,
[Stanley
Md.App.
invalid conclusions.
313 A.
(1974).]
2d
861-62
LaFave,
Amendment,
See 1 W.
Search and
A Treatise on the Fourth
Seizure:
3.3(f)
(1978);
Gates,
§
at 562
Illinois
U.S. at
S.Ct. at
J.,
(Brennan,
dissenting).
“Greenway 2325, 76 L.Ed.2d at 540.] 103 S.Ct. “in Condominiums” [Id. in- Bloomingdale Department Police Detective Mader of the anonymous tip Illinois driv- vestigated the and learned an Bloomingdale. had issued to Lance Gates er’s license been a “L. had an individual named Gates” also learned that He Florida, Beach, departing flight to West Palm reservation on agent May request, Mader’s Chicago on 5th. At from Administration conducted surveillance Drug Enforcement Beach. West Palm flight destined for Gates board observed agents Florida had observed reported that federal He also he had and confirmed that arrival West Palm Beach Gates’ nearby motel. The airport by to a from the taxi traveled a room in the motel Gates had entered agents reported that *18 116
registered The morning Susan Gates. next Gates an and unidentified woman left in Mercury the motel with automobile plates. They Illinois license drove northbound an interstate generally highway by used Chicago. travelers for The bound plate license Mercury number on the by was identified the agents registered wagon federal one a station by owned Gates.
Detective Mader prepared incorporated affidavit that during details learned the investigation. He submitted the affidavit, along copy anonymous letter, with a to a county judge. judge court issued that search warrant authorized searches of the Gates’ residence and automobile. 7,May On when Lance and wife Gates his returned to their home in Bloomingdale, the Bloomingdale searched the Mercury trunk of the approximately and discovered pounds marijuana. During search the Gates’ home the officers marijuana, weapons, found and other contraband.
The Illinois suppressed Circuit Court evidence on ground support affidavit submitted in of the search warrant did establish cause. That decision was Court, affirmed Appellate Illinois 82 Ill.App.3d (1980), Ill.Dec. 2d Supreme N.E. Court Illinois, Ill.2d 53 Ill.Dec. N.E.2d
Relying on the two-pronged analysis derived from Aguilar Spinelli, Supreme the Illinois Court concluded that anonymous letter, supplemented by affidavit, Detective Mader’s satisfy did not either “veracity” or the “basis-of-knowl edge” prong by Aguilar. established The court concluded there no basis determining anonymous was that the letter credible, writer was by police and that the corroboration innocent details in the contained letter could not satisfy the requirement. “veracity” 222-24, Id. Ill.Dec. at addition, N.E.2d 891-93. In the court observed that anonymous letter did not reveal the source of its author’s knowledge and concluded that the set detail forth in the letter an inference that the contents of justify not sufficient Id. from a source. the letter had been obtained reliable majority, agreed Gates writing for the Rehnquist, Justice letter, anonymous Supreme Illinois Court standing alone *19 might nothing that its author is which one conclude from
provides virtually gives no the letter likewise, or his information reliable; absolutely either honest regarding the Gateses’ basis the writer’s predictions indication of the magistrate Something more was before then, criminal required, activities. cause contraband would there was to believe that conclude that probable could U.S. at 103 S.Ct. at be found in the Gateses’ home and car. 2326, 76 [462 L.Ed.2d at 541.] Aguilar on and Supreme Illinois Court’s reliance Rejecting the independent investiga- Spinelli, determined that the the Court Bloomingdale police by agents ade- tion the federal and the tip. The reliability of the informant’s quately the verified two-pronged analysis the Aguilar-Spinelli Court observed that guide of to determinations overly technical and ill-suited probable cause: largely “two-pronged chan- into two independent test” directs analysis [T]he knowledge.” of his “basis or and “reliability” nels —the informant’s "veracity” arguments according against two elements such these
There are persuasive status. independent [********] rigorous prongs of and into the the complex superstructure Spinelli inquiry our have in Spinelli that some seen implicit and rules analytical evidentiary warrants the fact decision, many quite cannot be reconciled with are— judgments of common-sense nontechnical, the basis of properly —issued demanding applying used more formal than those a standard less laymen given in which legal proceedings. informal, hurried context Likewise, the often “two-pronged of test” are subtleties,” it must the “built-in be applied, determining magistrates in [Id. cause. to assist probable particularly unlikely (citations omitted).] at 103 L.Ed.2d at 233, 235-36, 2329, 2331, at totality-of-
Nevertheless, formulating the elements of the continued analysis, recognized the Court the-circumstances knowledge: of veracity and basis relevance of an informant’s issuing magistrate common-sense make practical, The task of the simply given set all the circumstances decision whether, before affidavit forth persons supplying him, knowledge" “veracity" including the “basis and of of hearsay information, or evidence of that contraband there is a fair probability * * * found are a crime will be in a We convinced that this particular place. flexible, standard will better achieve the of applied accommodation easily public and interests the Fourth Amendment private than does the requires Aguilar that has from at Spinelli. [Id. approach developed 233, 238-39, 103 (emphasis omitted).] at at 2329, 2332, L.Ed.2d added, citations The Gates majority also totality-of-the-cir- observed provided magistrates cumstances test with wider discretion to grant or refuse warrants permitted than had been under Aguilar-Spinelli rules: Nothing magistrate in our of lessens the opinion any way authority draw such inferences as he from reasonable will the material to him supplied by indeed, regime he is than under for a warrant; applicants freer of
Aguilar Spinelli inferences, such to draw them draw he refuse if so is minded. (emphasis [Id. S.Ct. added).] Finally, explicitly scope the Court limited permissible appellate review cause determination made warrant-issuing judge, holding that the fourth amendment de novo require did not validity review as to warrant: have said that [W]e repeatedly after-the-fact courts of the sufficien- scrutiny magistrate’s an affidavit should not take the cy form de novo review. A *20 great reviewing “determination of cause should be deference paid by grudging negative reviewing “A courts.” attitude courts towards war- by strong rants,” is inconsistent with the Fourth Amendment’s for preference searches conducted should pursuant warrant; “courts invalidate interpreting in a rather than a warrants] by affidavits] com- hypertechnical, monsense, manner.”
[********] Reflecting this for the warrant the traditional standard for preference process, issuing magistrate’s of an review determination has probable-cause been so long magistrate concluding]” had a “substantial basis for ... that a wrongdoing, search would uncover of evidence the Fourth Amendment requires Spinelli 236, 103 S. Ct. no more. at at (quoting 76 at 546-47 [Id. 2331, L.Ed.2d dissenting, Stevens, 7 Justice believed that was defective even warrant under the Id. totality-of-the-circumstances 291-94, at newly-adopted test. 103 S.Ct. at 76 2360-62, L.Ed.2d 582-85. Justices and Brennan Marshall dissent Aguilar-Spinelli ed on the basis that of rules repudiation was and unwise 462 U.S. 286-91, 103 S.Ct. L.Ed.2d at 579-82. 76 unnecessary. 2357-60, concurring, White, Justice believed that was valid warrant under Aguilar-Spinelli thought standard, which he should be clarified but not aban Id. at 267-73, S.Ct. 76 L.Ed.2d at 567-71. doned. 103 at 2347-51,
119 584, 637; States, 410, 419, 393 89 21 L.Ed.2d v. U.S. S.Ct. United Ventresca, 102, 108-09, 741, 745-46, 85 13 v. 380 U.S. S.Ct. United States 257, 725, 736, 684; States, 271, v. 362 U.S. L.Ed.2d Jones United S.Ct. 697).] of Gates up, the fourth amendment impact To sum First, by adopting probable-cause determinations two-fold. analysis, reempha totality-of-the-circumstances signals it conception” probable cause “practical, sis nontechnical of of the States, supra, 160, Brinegar 338 U.S. United in endorsed 93 L.Ed. repudiating the S.Ct. does so without “veracity” “basis-of-knowledge” inquiries with relevance Second, respect allegations by informants. it limits scope appellate by the fourth of federal review mandated war probable-cause by determinations amendment as to rant-issuing magistrate. Jersey Law
B. Probable Cause—New Case concerning probable decisions in cases cause This Court’s expected, As relatively have uncontroversial. would be been Upton, by aspect the Court Massachusetts of Gates reaffirmed 8 This (1984). of review standard L.Ed.2d 721 U.S. appears Upton to contradict the Court’s established in Gates endorsed California, 10 L.Ed.2d in Ker v. formulation Ker, Clark, writing majority approved de novo review Justice constitutionally-mandated necessary standards: to vindicate when it is the first a substantive is in instance reasonableness search [T]he circum- by from facts and made trial court to be determination down light criteria” laid case and in of the "fundamental stances applying opinions Court this the Fourth Amendment and course, reasonableness, only respected Findings are Amendment. guarantees. we have As consistent with federal constitutional insofar as rights, involving and in federal constitutional above other cases stated against findings examination no means insulated of state courts are appraise prius contra- sit as in nisi While this Court does not here. *21 will, necessary dictory questions, determination factual it where facts, the rights, independent examination of the make an constitutional in the findings, whether can determine for itself and the record so that it i.e., constitutional —crite- as to decision reasonableness fundamental — 33-34, respected. 83 S.Ct. by [Id. at this been ria Court have established omitted).] (citations 10 L.Ed.2d 738 120
many opinions our emphasize principles the same that have recognized by been decisions the federal courts. We have consistently probable characterized common-sense, cause as a practical standard for determining validity of a search Kasabucki, In State v. 110, warrant. 52 N.J. (1968), 116 we said: Probable cause is a nontechnical flexible, It includes a conscious concept.
balancing governmental against need for enforcement of criminal law right the citizens’ regarded It must be constitutionally protected privacy. representing competing an effort to accommodate those often interests so as to serve hampering them both in a fashion without practical the one or unduly impairing significant unreasonably content of the other. cert, Davis, See State v. denied, N.J. 16, (1967), 50 24 389 U.S. 1054, 805, S.Ct. 88 Laws, (1968); 19 State v. L.Ed.2d 852 50 cert, N.J. 159, (1967), denied, 971, 173 393 U.S. 408, 89 21 (1968); Mark, L.Ed.2d 384 State v. 262, 46 N.J. (1966); 271 Contursi, State v. 422, 44 N.J. (1965); 428-29 Boyd, State v. N.J. 390, (1965).
This Court has unwavering also been in its insistence that affidavits submitted support application of a allege warrant specific facts so that issuing judge can indepen- determine dently probable whether or not cause has been established: The crucial determination is to be not made officer but issuing judge. judge neutral Before the is in a to make his determina position tion for he underlying issuance, must be made aware of the properly facts or circumstances which believing would warrant a inman law prudent being Legal guilt violated. sufficient proof is, establish of course, not good required; faith on the officer’s suspicion without will part, more, not suffice. As the Nathanson Court it in v. United Supreme succinctly put States, issuing magistrate search warrant not issue unless may can find from cause the facts or probable circumstances to him under presented oath or enough.” affirmation —“Mere affirmance of belief or v. [State suspicion
Macri, supra, States, (quoting at N.J. Nathanson v. United (1933)).] 78 L.Ed. 11, 13, Fariello, See State v. 71 N.J. (1976); State v. 564-65 Ebron, Mark, N.J. (1972); State 46 N.J. 273; State v. Moriarty, 39 N.J. (1963); State Burrachio, 39 N.J. 275-76 courts,
Like the permitted federal we have reliance on hear- say for purpose establishing cause, but have *22 warrant-issuing provide the the officer’s affidavit insisted that hearsay. crediting the State a basis for judge with substantial 212; Perry, 59 N.J. Ebron, at v. supra, N.J. State v. 275; v. Burrachio, at State (1971); supra, 39 N.J. v. State 262; Southard, 144 Macri, N.J.Su supra, 39 N.J. State (App.Div.1976). per. validity required to consider the infrequently been
We have Aguilar- of the hearsay in the context warrants based on supra, 59 N.J. Perry, In two-pronged test. State Spinelli on information “from reliable was based the affidavit informant, past given reliable information in the who ha[d] “monies, arrests,” consisting of property that stolen leading to [sic], and narcotics bag, narcotics barbituates doctor’s jewelry, paraphernalia” apartment. could be found in the defendant’s Id. veracity adequately held that the informant’s 387. We was As past reliability. his reference to officer’s established prong, noted that “basis-of-knowledge” we to the nature in the informant’s is of such detailed contained tip the information magistrate had the informant lead a to infer that probably it could reasonably gained had his stolen, he knew to be items himself which observed the * * * in this We think the detailed description in a reliable way. information * * * regarded as sufficient which case is of the Court type Spinelli in a reliable way. [Id. 392.] was obtained establish that the information allegation Ebron, officer’s N.J. State v. home mother’s selling narcotics from his was that defendant who “informant part information from an ha[d] based in on past”9 part on a surveillance in the prove[n] reliable concluded three-day period. We by police over the residence reliability past as to the informant’s officer’s assertions that the that the prong Aguilar-Spinelli, veracity satisfied at 212. Id. prong had not been satisfied. “basis-of-knowledge” ground that Nevertheless, the warrant was sustained satisfy the “basis-of-knowl- tip although informant’s did of the “totality supplemented by the edge” it could be prong, in the Appellate is set forth verbatim opinion 9 The detective’s affidavit Division, 113 154-55 N.J.Super. proofs issuing id., magistrate,” including submitted during facts established the officers their surveillance defendant’s residence.10 We held that the informant’s “[w]hen *23 test,’ ‘two-pronged statement fails to meet this the affidavit may if in application nevertheless be sufficient elsewhere enough ‘permit suspicions engendered there report ripen judgment informant’s into a that a crime was probably being We committed.’ think the affidavit before us 212 (quoting Spinelli meets this test.” 61 at N.J. v. United 410, States, 418, 584, 590, 637). U.S. 89 393 21 L.Ed.2d Validity
C.
the Warrant
of
matter,
preliminary
As a
guidance
and for
to trial and
officials,
appellate courts and law enforcement
we acknowledge
totality-of-the-circumstances
our
apply
intention to
test analo
gous
Gates,
that set forth in
supra,
Illinois v.
462
238,
2332,
548,
103
76 L.Ed.2d at
validity
test the
of
probable-cause
search warrants under the
standard set
in
forth
I, paragraph
Jersey
article
7 of
New
Constitution.11 We
note that those commentators who have
on the
focused
decision
differ in
its significance. Compare
their assessment of
Kami-
Attorney
analysis
similarity
10 The
General cites the Ebron
its
Gates,
totality-of-the-circumstances
adopted
supra.
test
in Illinois v.
To the
acknowledges
tip
extent that Ebron
an
informant’s
neither discloses
knowledge
self-verifying
the basis of the informant’s
nor contains
detail can be
supplemented by
warrant,
holding
collateral facts to sustain a
in Ebron
analysis
Supreme
majority
indeed
resembles
relied on
Court’s
in
acknowledged
propriety
supplementing
Gates. We also
in Ebron that the
tip
prongs
Aguilar
corroborating
informant’s
that fails
both
one or
with
specifically recognized by
details in an officer's affidavit was
the Court’s
States,
418,
opinion
Spinelli
supra,
in
v. United
In The affi from an informant. information obtained unidentified appears comply with both davit’s reference to the informant veracity informant’s prongs Aguilar-Spinelli test. The Higgins’ Detective unvarnished statement supported is (with investigations proven in several he “has reliable accepted past in the supplied).” information he We have satisfying informant as similarly undetailed endorsement of an supra, 59 requirement. Perry, N.J. veracity State State, Md.App. Stanley v. 390; compare veraci- Aguilar’s (1974)(where informant satisfied 847, 851 A.2d colors.”). ty “flying Similarly, the informant’s “ba- prong with knowledge” clearly sis of is established the assertion that “he dealing drugs gas ‘Otto’ from witnessed his station.” Although the affidavit’s reference to the informant satisfies test, the Aguilar-Spinelli the substantive information obtained meager from the informant is indeed. One deficiency critical the affidavit furnishes no information whatsoever as to when the informant allegedly drug “witnessed” the sales. Con- sequently, allegations, alone, standing informant’s were inadequate provide judicial a neutral officer with a reason- present suspicion able basis for that a search of Novembrino’s premises yield would In Rosen- activity. evidence of criminal States, cranz v. (1st Cir.1966), United F.2d 310 the court rejected affidavit, a similar which contained no time reference other than the fact phrased present affidavit was in the holding invalid, tense. the warrant the court cautioned: present suspended air; point tense is in the it has no of reference. It speaks, all, anonymous conveyed after of the time when an informant informa- officer, week, day, tion to the which could have been a or months before the inference, date of the affidavit. To make a double that the undated information speaks as of a date close to that of the affidavit and that therefore the undated strength speak observation made on the of such information must as of an even open unsupervised more recent date would be to the door to the issuance of aging search warrants on the basis of information. Officers with information questionable recency escape by simply omitting could embarrassment aver- time, long they reported they ments as to so that whatever information Magistrates received was stated to be current at that time. would have less opportunity perform Indeed, their “neutral and detached” function. if the valid, adjudged any affidavit in this case be it is difficult to see how function stamp but that of a rubber remains for them. [Id. 316-17.] Boyd, Accord United (6th States F.2d Cir.1970); Elliott, F.Supp. United States v. (S.D.Ohio 1984); R.B.C., N.J.Super. State Interest (J.D.R.C.1981); *25 LaFave, see W. A Search Seizure: Treatise on the Amendment, 3.7(b) Fourth (1978) (hereinafter LaFave, at 693 § ).12 Search and Seizure substantially specific 12 Theaffidavit at issue in this case is less as to time Blaurock, N.J.Super. (App.Div.
than the affidavit construed in State v. addition, In conclusory allega- unidentified informant’s usually keeps drugs gas tions that “Otto in the station” and dealing drugs” that he “witnessed unsupported by any Otto are specific facts judge from which a neutral independently could suspicion a yield derive reasonable that a search would evidence of criminal activity. may The fact that a officer be willing to tip particularly believe the one who informant — helpful prior has been on judge’s occasions—does not lessen the duty tip to scrutinize the of the weigh substance order to its sufficiency against practical of probable standard cause. Macri, As Justice Jacobs observed in State v. “Before judge position is in a to make his determination for is- suance, properly he must be made of the underlying aware prudent facts circumstances which would warrant inman believing being the law was violated.” 39 N.J. 257. Here, tip conclusion, allegedly informant’s is a bald based personal observation, on unsupported by any but reference to events, dates, or circumstances. alone, allegations,
Because the standing informant’s are cause, insufficient probable to establish we focus on the inde pendent observations Higgins made Detectives and Scianni they adequately supplement to determine if the informant’s 1976). Appellate suppress In that case the Division refused evidence where challenged grounds. Relying the affidavit was on United ‘‘staleness” States Harris, (3d Cir.1973), Johnson, F.2d and United States v. 461 F. (10th Cir.1972), question 2d the court concluded that the probable depends merely staleness of cause on the recitation in the times, particular upon affidavit of dates and assessment of careful conclusion, allegedly activity. reaching nature of the unlawful its the court days passed reported considered the fact that 18 had between the last surveil inconsequential lance and the date of the be affidavit to because the affidavit description drug-related included a detailed of the defendant’s activities. Cf. States, 206, 210-11, Sgro v. United 287 U.S. 53 S.Ct. 77 L.Ed. (1932) ("[I]t proof probable [of is manifest must be of facts so cause] closely justify finding related to the time of the issue the warrant as to proof cause at that time. test Whether meets this must case.”). determined the circumstances of each *26 126
allegations.13
first
is silent with
We
observe that
affidavit
appre
regard
experience
investigating
officers’
in
hending
Although
acknowledge
police
drug dealers.
we
that
specific
activity
criminal
is
experience
officer’s
with
forms of
assessing
probable
whether
cause
entitled to consideration
742-43,
established,
Brown,
730,
460
has
see Texas v.
U.S.
been
1535, 1543-44,
502,
(1983);
103
75 L.Ed.2d
514
United
S.Ct.
421-22,
411,
690, 697,
Cortez,
101
v.
449 U.S.
66
States
S.Ct.
Kasabucki,
621,
(1981);
2d
631
v.
52 N.J. at
L.Ed.
State
17,
Sainz,
22
117;
N.J.Super.
(App.Div.),
210
certif.
v.
State
(1986),
suggests
nothing
this affidavit
granted,
making drug what we believed to be transactions. phrase “making The critical is officers Otto observed drug what we to be believed transactions.” If the officers had suspicion they witnessing drug reasonable were fact transactions, they would have been authorized to arrest defend- spot. Williams, ant on the Adams v. 407 92 U.S. 1921, 1924-25, (1972); Ohio, Beck v. explanation supplementing 13 Alucid of the role of observations in State, allegations probable Stanley informant’s to establish cause is found in supra, Md.App. at A.2d at 860: function, purposes. They primary Such observations serve two have a course, bearing directly probable on the establishment of cause. When probable such are observations sufficient in themselves to demonstrate cause, problem thereby the final is solved and all information both from redundancy; probable and about the informant becomes a cause is estab- necessary hearsay. Similarly, lished without resort to the direct observa- tions, cause, may probable insufficient unto themselves to establish never- trustworthy hearsay, Aguilar's theless be added which meets standards itself, incriminatory also insufficient unto so that the combination of may quite elements establish the cause which neither alone demonstrates. 89, 91, 223, 225, (1964); 13 L.Ed.2d Macuk, State N.J. (1970); Doyle, State v. 42 N.J. *27 The officers in requested this case defendant to accompany police headquarters but, them to pointedly, did not place him under arrest.
Additionally, utterly the affidavit is devoid of specific facts witnessed the officers from which judge could have independently suspicions concluded that their were reasonable. The affidavit does not state with particularity what the officers observed or why the officers drugs believed that being were sold. It judge does not inform the respect in what the transac- tions observed the officers differed from routine service station only specific transactions. The allegation offered is that an identification check was with respect made to one vehicle that entered the day service station that its —after occupant completed “a transaction” with defendant —and check revealed that the vehicle’s owner had been arrested on charges drugs. related to That factual insertion is insufficient to overcome the deficiencies detail and substance which we have averted. Spinelli States,
In his v. United concurrence in supra, U.S. 89 21 L.Ed.2d Justice empha- White sized that an affidavit specific must include support facts suspicions: officer’s gambling If an officer swears that there is aat certain equipment address, (1) (2) the possibilities are that he has seen the that he has observed equipment; facts from which the perceived presence equipment may reasonably (3) (1) inferred; and that he has obtained the information from someone else. If good. (2), is is true, affidavit But the affidavit is insufficient unless given, magistrate, facts are it is the not the perceived officer, who is to
judge (3), the existence of cause. With probable where officer’s respect good is crediting information no warrant should issue hearsay, absent cause for at 423-24, hearsay. [393 at 648 (citations omitted).] complete We are in agreement with the trial court and the Appellate affidavit, Division that tolerantly this read and non- technically, simply pass does not constitutional muster. Our dissenting colleague, Garibaldi, agrees Justice that the affidavit allegations probable conclusory
does not establish
cause. The
persuasive
of the officers are even less certain and less
than
conclusory
vague allegations
the informant. Our
common-sense review of these circumstances leads to the con-
officers,
investigation,
clusion
an
after
abbreviated
they
drug
seen
were uncertain whether
had
sales and their
vague
informant was
about what he had seen and silent as to
together,
allegations
he had seen it. Read
when
provide
issuing judge
informant and of the officers did not
independent
sufficient facts on which to
determi-
with
base
the existence of
cause.
nation
emphasize
our
inadequacy
We
conclusion as to the
affidavit, notwithstanding
compliance
its literal
both
prongs
thoroughly
Aguilar-Spinelli,
consistent with our
law,
application,
totality-
as a matter of state-constitutional
of a
*28
Rehnquist
of-the-circumstances test. As
Justice
observed
Gates,
issuing judge
under that standard the
“is freer than
regime Aguilar
Spinelli
under the
and
to draw such inferenc-
es,
to
if he is
refuse to draw them
so minded.” 462 U.S.
view,
One assume from the of the have, judge may tions submitted to the these officers simply observed additional facts that were omitted from the body police of the It affidavit. is not sufficient that officers adequate support they are aware of facts if warrant fail facts, issuing judge. Any communicate these facts to the such testimony judge contempora if offered as recorded neously, judge supplementing could be considered Fariello, contents of the affidavit. State v. 71 N.J. at Nothing suggests 558-63. in the us record before Detec Higgins supplemented testimony tive his he affidavit with when appeared judge before the to obtain the warrant.
Independent of our conclusion as to the affidavit’s insufficiency cause, probable to establish we note that prepared hastily preparation affidavit was time for its —the estimated be ten or fifteen minutes—and it that was the experience preparing officer’s first support affidavit in Although a search warrant. the affidavit antedates the Attor Statement,14 ney Policy General’s requires which the re search Attorney view of warrant affidavits either the Gener al’s county prosecutor’s staff, or the the record in this case by any reflects that the affidavit was not reviewed superiors in Bayonne officer’s Police Department. Our observations as to experience, spent the officer’s the time affidavit, preparing any and the absence of review reflect our support conviction that an affidavit in aof search warrant carefully prepared must be and reviewed to assure that it faithfully police investigation reflects the results of the provides judge with sufficient perform detail to him to enable constitutionally-mandated stated, his review. As we have preparation adequate standards for of an affidavit are more technical, practical than necessary readily and the skills can acquired by perceive well-trained officer. We no incom patibility objectives between skills and of law-enforcement requirement officials and the constitutional that warrants issue only upon probable cause.
III view our conclusion that the search warrant was issued cause, without now we consider State’s contention *29 by construing that hold the to we evidence be admissible article I, paragraph Jersey permit recog- 7 the New Constitution “good-faith” nition the modification of the rule 14 "Policy Attorney Jersey County Statement of the General of New and the Jersey Regarding Prosecutors Association New Prosecutorial Review of Manual, Applications," Jersey Search Warrant New Prosecutors at 46-1 to 46-4 1985). (February at 150-151. See discussion infra 897, Leon, supra, 468 U.S. v. United States in
set forth
3405,
82 L.Ed.2d
677.15
concurring opinion in the
the
Preliminarily,
note that
we
excep
good-faith
cautions that review of
Division
Appellate
N.J.Super. at 245.
may
inappropriate.
in
tion
this case
Leon
application
opinion
retroactive
That
observed
Leon,
that,
trial court
in this case
unlike
“doubtful”
reasonably
good
in
faith
relied
finding that the officer
made no
Id. searching
defendant’s
service station.
on the warrant
hearing
suppres
Although
the search and
246.
both
Leon, we assume without
in this case antedate
sion motion
Leon
was intended to
question that the decision
deciding the
United
Eighth
noted in
retroactively.
As the
Circuit
apply
cert, denied,
1261,
(1984),
Sager, 743 F.2d
States
1264-65
1196,
(1985),
day
84 1217,
on the
105 U.S.
certiorari
Leon was decided the
Supreme
granted
Court
cases, re
judgments
fourth-amendment
vacated the
several
light
of Leon.16
manding them for
further
consideration
981,
case,
Sheppard,
104 S.Ct.
companion
468 U.S.
15 In
Massachusetts v.
3424,
(1984),
good-faith exception
applied
131 Moreover, that have addressed federal circuit courts those appli has retroactive uniformly that Leon have concluded issue 963, Merchant, 760 F. 2d 968-69 v. cation. See United States — cert, U.S.-, 3293, 92 (9th Cir.1985), S.Ct. granted, (1986); supra, 743 F. 2d at Sager, L.Ed. 2d 708 United States 653, (9th Hendricks, 1264-65; 743 F. 2d United States cert, 1006, 1362, Cir.1984), denied, 84 L.Ed. 105 S.Ct. U.S. (1985). 2d 382 objective good-faith reliance of the officers’
As to the issue warrant, apply opinion Leon would the Court’s acting objective officer exception whenever “an good-faith judge a search from good faith has obtained warrant 920, scope.” at within its 468 U.S. magistrate and acted Accordingly, assuming that at 697.17 at 82 L.Ed.2d role, and neutral magistrate did his detached not abandon “only if the officers were permit suppression would Leon their affidavit or could not preparing dishonest or reckless in the existence objectively an reasonable belief harbored have 926,104 82 L.Ed.2d at cause.” Id. hearing in case testimony suppression this No at the 701. Despite our conclusions was false. suggested that the affidavit so as to are not blatant insufficiency, its defects as to its validity of on the objectively reasonable reliance preclude an the warrant.18 Crozier,
(1984);
L.Ed.2d 873
104 S.Ct.
United States v.
exception
good-faith
‘‘[m]any objections
assume that
17 Recognizing
to a
officers,”
good-faith
subjective
of individual
exception
will turn on
adopted
in Leon was
emphasized
of reasonableness
Court
standard
n.
82 L.Ed.2d
objective
S.Ct. at 3420
A. The Exclusionary
Development
Rule:
and
Prior
to United
States
Leon
Modifications
Our consideration of the “good-faith”
recognized
modification
in Leon can be
only
undertaken
in the
history
context of the
and application of the exclusionary rule prior to the Leon
Although
decision.19
origin
of the exclusionary
can
be
traced Boyd
States,
United
116 U.S.
6 S. Ct.
standard,
then,
time,
police
under the new Gates
but
at the
same
find that
offi
"objectively
cer’s reliance on such an invalid warrant was nevertheless
reason
overlap
completely,
able” under the
test. Because the two
[Leon]
standards
so
it
unlikely
yet
that a
warrant could
found invalid under Gates and
reasonable; otherwise,
upon
objectively
reliance
it could be seen as
we would
mind-boggling concept
objectively
have to entertain the
reasonable reliance
Kamisar,
upon
objectively
(citing
supra
unreasonable warrant."
note
588-89; Wasserstrom,
Amendment,"
Shrinking
"The Incredible
Fourth
21 Am.
LaFave,
(1984);
Imperfect
Crim.L.Rev. 257
"The Fourth Amendment in an
Faith,”’
Drawing ‘Bright
World: On
Lines’ and Good
43 U.Pitt.L.Rev.
(1982)).
333-59
history
19 Foran excellent
development
discussion of the
and
of the exclu
sionary
Stewart,
supra
rule see
note
and Mertens and Wasser
strom,
supra note
at 373-89.
the rule was
case in which
(1886),20
L.Ed.
first criminal
States,
383, 34
232 was Weeks v. United
applied
20 Boyd
proceeding
government,
concerned
civil
forfeiture
in which the
subpoena, sought
production
goods
prove
of invoices for
in order to
their
quantity
complied
subpoena
and
appealed
value. The defendants
with the
judgment
ground
compelled production
on the
that the
violated their
rights.
impassioned opinion,
fourth and fifth-amendment
In an
Justice Brad
ley emphasized
opposition
primary
to unreasonable searches was a
cause
independence
England:
effort
to achieve
from
proceedings
In order to ascertain the nature of the
intended
Fourth Amendment to the Constitution under the terms "unreasonable
seizures,"
only necessary
contemporary
searches
it is
to recall the
history
subject,
country
then recent
of the controversies on the
both in this
Colonies,
England.
practice
issuing
had obtained in the
officers,
them,
empowering
writs of assistance
revenue
in their
discretion,
suspected places
smuggled goods,
to search
which James
*32
pronounced
arbitrary power,
Otis
"the worst
instrument of
the most
English
law,
liberty
principles
destructive of
and the fundamental
of
that
book;"
English
they placed
liberty
ever was found in an
law
since
"the
of
every
every petty
February,
man in the hands of
officer.” This was in
1761, Boston,
and
perhaps
the famous debate in which it occurred was
prominent
inaugurated
the most
event which
the resistance of the colonies
there,”
oppressions
country.
of the mother
"Then and
said John
Adams,
opposition
"then and there was the first scene of the first act of
arbitrary
Indepen-
the
claims of Great Britain. Then and there the child
624-25,
528-29,
dence
[116
was born.”
U.S. at
Amendment, might as concerned, are so far as those thus placed is of and zures, value, no * * * proceedings such To sanction from the Constitution. be stricken well neglect, judicial if not an open manifest affirm decision would for the Constitution, protection intended of the defiance, prohibitions at 344-45, 34 Ct. against action. S. [Id. unauthorized such the people 58 L.Ed. 656.] scope expanded early 1920’s when the Court decided Silverthorne Lumber v. United States, U.S. 64 L.Ed. (1920), States, Gouled v. United 255 L.Ed. Silverthorne, federal illegally officers raided office of company. After copying the books .lumber seized, papers agents returned them to the company. A subpoena compel then production issued to of the doc- company uments. The refused to comply subpoena with the guilty and was found contempt. The Court reversed the conviction, rejecting government’s contention only Weeks compelled illegally-seized decision the return *33 evidence, did preclude government but not using the from in information obtained the course of the search: although could not be proposition more It presented is that nakedly. outrage government course its regrets, seizure anwas which the now it may it study before returns papers them, and then use the copy them, may knowledge gained it regular has to call the owners in more to upon form that the them; Constitution covers the produce protection physical posses- advantages government object gain but not sion, that the can over any of its run
Amendments
almost into each
at
[116
630,
535,
other.
U.S.
S.Ct. at
decide whether
due-process
clause of the fourteenth amend
required
ment
state courts
apply
and enforce the exclusion
ary
Although
rule.
concluding that
protect
the critical interest
ed
the fourth amendment —“the security
privacy
of one’s
against arbitrary
police,”
intrusion
id. at
majority’s suggestion that remedies other than exclusion could equally be effective: Imagination give zeal invent a dozen methods content may commands of Amendment. But this the Fourth Court is limited to the remedies legislate It available. cannot the ideal If we
currently
would
system.
attempt
the enforcement of the search and seizure clause in the
case
we
ordinary
today,
judicial
illegally
are limited to
three devices:
exclusion
obtained evidence;
against
criminal
and civil action
prosecution
violators;
violators
the action
of trespass.
Alternatives are
Their
statement
that
deceptive.
very
conveys
impression
one
is
effective as the next.
In
case
this
their statement
is
possibility
blinding. For there
one alternative
to the rule of
is no
exclusion. That
Ct.
93 L.Ed. at
at
at
sanction
all.
69 S.
at
[Id.
41,
1369,
1793.]
impact of
relatively
was to
short-lived.
Wolf
165,
v. California,
205,
Rochin
342 U.S.
72 S.Ct.
Another
(1974),
Calandra,
338,
613,
“would achieve a minimal advance expense the deterrence of misconduct at the sub- stantially impeding grand jury,” the role of the id.
S.Ct. at
Despite gradual compression scope Court’s of the of the exclusionary rule, prior no decision to United States v. Leon expressly contradicted the principle established that evidence government’s in the case-in- was inadmissible illegally obtained respect, In this Leon constitutes prosecutions. in criminal chief its rule since significant limitation of the most genesis in Weeks. United,
B. v. Leon States “good faith as the Although holding Leon is described rule, that characterization sub- exception” decision. Two the breadth of the Court’s stantially understates majority opinion are illustrative White’s passages from Justice scope: potential of its * * * to a warrant of evidence obtained conclude that suppression pursuant We in those unusual basis and only on a be ordered case-by-case should only rule. will the exclusionary exclusion purposes cases which further ‡******* and the the exclusionary have now re-examined purposes We on a have relied subsequent- in cases where officers of its propriety application the rule’s will is that purposes search warrant. Our conclusion invalidated ly applying it in such circumstances. [468 be served by only rarely added).] (emphasis 104 82 L.Ed.2d at formulation, suppression cases According to Justice White’s exclusionary rule will application involving warrants “exception” recognition good-faith exception, prevailing standard. be the will persons, resi- Leon, were made of defendants’ searches on a who relied
dences, by police officers and automobiles superior issued a California facially search warrant valid *37 during drugs were discovered judge. Large quantities of court by a were indicted Defendants course of the searches. the charged conspiracy possess grand jury and were federal offenses. as other substantive as well and distribute cocaine the war- pursuant to evidence seized suppress Motions argued that the extensive government filed. The rant were experi- by police a officer prepared application, search-warrant depu- by investigations reviewed several in narcotics enced cause. probable established attorneys, adequately ty district of informant tip from an part on a stale application relied The gleaned by facts reliability, supplemented was unproven but premises from substantial of surveillance to be searched. The federal district court concluded that the warrant probable had been issued without cause. The court acknowl- edged conducting that the officer good the search had relied in government’s faith on the warrant suggestion but declined the recognize exception that it exclusionary to the Id. at rule. 904, 3411, at L.Ed.2d 686. affirmed,
A panel concluding of Ninth divided Circuit stale, reliability informant’s information was that his unverified, independent investigation and that the officer’s “nei ther cured nor the staleness corroborated the details 904, informant’s declarations.” Id. at 104 S.Ct. at L.Ed. 2d at The of Appeals 686. Court also declined to establish good-faith exception exclusionary rule. petition
The Government’s
did not
certiorari
seek review
lower court’s
probable
decision that
cause for the war-
had
rant
not been
Supreme
grant
established. The
Court’s
certiorari was limited to the
issue advanced
the Govern-
“ ‘[wjhether
ment:
the Fourth Amendment
should be modified so as not to
the admission
bar
of evidence
reasonable,
good
seized
faith reliance on a search warrant
”
subsequently
that is
held to be defective.’
Id. at
686-87.26
major premise
holding
of the Court’s
in Leon is that the
required
rule is not
fourth
amendment
“
operates
rather
judicially
remedy
‘a
designed
created
safeguard Fourth
rights generally through
Amendment
its
effect,
deterrent
than
personal
right
rather
constitutional
Leon,
26 In his
dissent
noted
Justice Stevens
that Illinois v. Gates was
decided after the Ninth
held
Circuit
that the Leon warrant
lacked
certain,
"probable, though admittedly
cause and that was
it
that the Court
Appeals
would now
conclude
the warrant in
satisfied
Fourth
Leon
given
opportunity
light
Amendment
were
if it
reconsider
issue in the
of Gates."
U.S. at
failed probable “magistrate shopping” the ends and thus or promotes presentations inadequate Suppressing to a evidence obtained pursuant of the Fourth Amendment. might encour- cause also warrant defective supported by probable technically age out of the warrant and point to scrutinize more the form closely officers arguments judicial errors. We find such speculative. suspected [********] assuming deters some misconduct
But
police
even
effectively
a whole to conduct
for the law enforcement profession
incentives
provides
should
it cannot be
the Fourth Amendment,
expected,
itself in accord with
objectively
enforcement activity.
deter
reasonable law
be applied,
********
acting
objective
an officer
true,
believe,
we
when
This is particularly
judge magistrate
good
and acted
from a
or
faith has obtained
search warrant
illegality and thus
is no
cases,
In most such
there
within its scope.
magistrate’s
whether the
to determine
nothing
It is the
to deter.
responsibility
allegations
if
to issue a warrant
and,
so,
cause
establish officer’s
In the
Amendment.
comporting
of the Fourth
in form with the requirements
magistrate’s
officer cannot be
case, an
expected
question
ordinary
judgment
warrant
is
form the
his
that the
determination
probable-cause
nothing
“[Ojnce
there
issues,
literally
the warrant
sufficient.
technically
Penalizing
seeking
law.”
with the
can do in
comply
more the policeman
*39
magistrate’s
officer
logically
for the
rather
error,
than his
cannot
own,
contrib
ute to the deterrence of Fourth Amendment violations.
[Id.
at
918-21,
S.Ct. at
(quoting
Stone v. Powell, 428 U.S. 465,
Justice what he described as the “unavoidably provisional nature of decision],” id. at [the] at 104 S.Ct. L.Ed.2d at concurred with the majority experience good-faith cautioned that with the ex ception might require the Court to holding: reconsider its on we [T]he assumptions which in cannot be cast stone. To the proceed today now will be they tested in the real contrary, world of state and federal law emerge enforcement, this Court will attend to the results. If it should from good that, to our experience contrary expectations, faith exception change results a material police with compliance Fourth shall Amendment, we have to what reconsider we have here. undertaken logic aof decision that rests on untested about conduct predictions police demands no less. [Id. at L.Ed.2d at 702.] Brennan,
Justice
dissenting, sharply
majority’s
attacked
view that the fourth amendment’s mandate is limited to the
prohibition of illegal
require
searches and does not
view,
courts exclude the evidence obtained.
In his
there exists
an
relationship
inextricable
illegally
between the
admission
obtained
therefore,
evidence and an unlawful
“by
search and
admitting
evidence,
unlawfully
judiciary
seized
becomes a
part of
single governmental
what is
fact a
prohibited
action
by the terms of
933,104
the Amendment.” Id. at
S. Ct. at
disagreement
L.Ed.
Summarizing
his basic
2d
705.
he
majority
observed that
drawing an artificial
line between the
Court evades this principle by
[t]he
engaged
rights
that are
actions
constitutional
and responsibilities
engaged
before the courts.
and those
are
when
defendant appears
police
According
Amendment
the substantive
Fourth
Court,
protections
an
are
exhausted at the moment when
invade
individu-
unlawfully
wholly
al’s
and thus no
force remains to those
protections
substantive
privacy
government
time
to use evidence obtained
the police.
of trial when the
seeks
reading
such
Amendment casts aside
I submit that
a crabbed
Fourth
teaching
who
rule,
of those Justices
first
the exclusionary
formulated
understanding
judicial
rests
responsibility
ultimately
impoverished
right of the
to be
our constitutional
For
secure
my
scheme.
*40
part, “[t]he
people
against
searches and
effects,
in their
and
unreasonable
houses,
persons,
papers
right
means
to exclude all evidence secured by
seizures” comprises
personal
right
free
the
of
and
The
to be
from
initial
unreasonable searches
seizures.
right
of the
invasion of
and the
of exclusion are coordinate components
privacy
embracing right
searches and seizures.
central
to be free from unreasonable
at
at
at
3433,
[Id.
706.]
majority
this fundamental difference with the
Because of
amendment,
rejected
Brennan
scope
the
of the fourth
Justice
to
“deter-
purpose
rule’s
is
concept
that the
sole
depends on an
application
particular
that
in
cases
rence” and
its
analysis
compare the “cost” and
empirical
attempts
that
to
excluding illegally-seized evidence:
“benefits” of
remaining
basing the rule
redoubt
solely
within its
of empiricism
by
By
legitimacy. A
has
the rule of
on the
Court
robbed
rationale,
deterrence
for which
is
as if it
an
but
empirical
doctrine that
were
explained
proposition
an
unstable and
easy
limited
is both inherently
there is only
support
empirical
of
to Fourth Amendment
mark
critics. The extent
this Court’s fidelity
for
I
statistical uncertainties.
should not turn
such
however,
requirements,
Faretta v
the Court
in
Justice Stewart
view,
share the
expressed
averages.”
are not based on
law
that
liberties
California,
“[p]ersonal
seeking
give
the Fourth
the liberties secured by
Rather
than
effect
through guesswork
restore to
the Court should
about deterrence,
Amendment
ago
individual
in
that an
its
framed 70
Weeks
place
years
proper
principle
Fourth Amendment has
whose
has been invaded in violation
privacy
government
right
subse-
grounded
from
in that Amendment
to prevent
making
at
at
use
evidence so obtained.
[Id.
of any
quently
(citations omitted).]
82 L.Ed.2d at
dissent,
emphasized that
a separate
In
Justice Stevens
according
preferred
majority’s “good
exception,
faith”
warrant,
invalid
status
to evidence seized
reliance on
directly contradicted the intentions of the framers of the fourth
He
adoption
“good
amendment.27
characterized the
exception
product
faith”
as the
of “constitutional amnesia.” Id.
104 S.Ct.
IV 1947, Jersey The New Constitution of I, Article Paragraph 7 It is an principle established our system of federalist may that state constitutions of a source “individual liberties expansive more than those conferred Federal Constitu- general genesis 27 Fora discussion of the of the fourth amendment see J. Landynski, Court, (1966), Supreme Search and and the Seizure 19-48 N. Lasson, History Development “The of Fourth Amendment to the United Constitution," Hopkins University States 55 Johns Studies Historical and 2, (1937). Political Science No. 13-78
145 74, Robins, 447 Pruneyard tion.” Center v. Shopping 741, (1980); 2040, 81,100 Oregon 64 L.Ed.2d 752 see 714, 718, 43 L.Ed.2d Haas, 95 S.Ct. 420 U.S. v. (1986); Gilmore, (1975); N.J. 522 v. 103 575 State Law,” 63 Emergence of “Symposium: The State Constitutional (1985); Pollock, Separate “State Constitutions as Tex.L.Rev. 959 Rights,” (1983); 707 Rutgers 35 Sources of Fundamental L.Rev. of Interpretation State Consti “Developments in Law—The (1982); Brennan, “State 1324 Rights,” 95 Harv.L.Rev. tutional Rights,” 90 of Individual and the Protection Constitutions Note, Supreme (1977); Jersey “The 489 New Harv.L.Rev. Application of the Constitu Interpretation and State Court’s tion,” 491 Rutgers 15 L.J. our own State frequently has resorted to
This Court protection afford our citizens broader Constitution order to analogous or rights afforded than that personal of certain v. provisions the federal State Constitution. identical Williams, Byrne, 91 N.J. (1983); Right Choose v. 93 39 N.J. Alston, 338; v. (1982); Hunt, supra, 91 State N.J. 287 v. State (1980), Schmid, appeal (1981); N.J. 535 v. State N.J. Schmid, v. 455 U.S. Univ. nom. Princeton dismissed sub Johnson, (1982); v. 68 N.J. State L.Ed.2d 855 102 S.Ct. I, paragraph (1975). Although language article Jersey identical virtually New Constitution that it amendment, in other contexts we have held the fourth against unreasonable protection greater our citizens affords See amendment. than does the fourth searches and seizures (individual Hunt, protectible has N.J. State I, para billing article records under telephone toll interest Constitution); Alston, State v. graph Jersey 7 of New sufficient (possessory property interest in supra, 88 N.J. search); automobile standing challenge validity of confer (validity consent Johnson, supra, 68 N.J. State consent). right to refuse depends knowledge of the search *42 case, urges In this defendant that we construe our state-con- protection against stitutional unreasonable searches and sei- good-faith to preclude recognition zures exception to the Attorney rule established Leon. The General County argue the Hudson Prosecutor that we follow should Supreme Court’s modification rule and I, paragraph 7 construe article of our Constitution in manner good-faith exception. consistent with the as Our conclusion to which of to strongly these courses follow is influenced what perceive impact we to likely be the of our decision on the privacy rights of our citizens and the enforcement of our laws, criminal “particular matters of state interest” that afford an appropriate for resolving independent basis this issue on grounds. Hunt, supra, state State v. See N.J. at 366 J., (Handler, concurring) (“A may state constitution also employed particular interest.”) to address matters of state
The State interest in the resolution of the us issue before is clarified to extent by some perspective. Although historical our Constitution of 1776 did not provisions equivalent include to Rights,28 the Bill of this was remedied in our Constitution incorporated protection which against unreasonable virtually searches and seizures identical to the fourth amend I, paragraph ment and to article of the 1947 Constitution. convening 28 One reasons the Constitutional Convention in 1844 comprehensive rights was the lack aof bill in the 1776 Constitution. The rights Jersey’s absence of a bill of been has attributed the fact that New was one of the earliest State Constitutions and was written in some haste: Jersey colony adopt New was third a constitution. The document necessarily practically drawn in haste and without the benefit of earlier state constitutions serve as It models. is assumed that this brief man; largely although dispute constitution was the work of one there event, drafting any which member of the ten committee of he was. In "colony" by provincial constitution became law of vote of the congress only eight days appointment after the of the committee. This may partly Sandy haste have been due arrival of British fleet off [Proceedings Jersey Hook. of the New State Constitutional Convention of (footnote pp. omitted).] x and xiii
147 Const, VI, 6; Macri, para. supra, v. 39 art. State N.J. 1844 of cert, 506, 511, 256; Richman, 26 Eleuteri v. N.J. N.J. 843, 52, denied, 3 77 358 79 S.Ct. L.Ed.2d U.S. Ohio, Supreme Mapp decision in v. Court’s
Prior the 1081, 1684, Jersey 6 81 New supra, 367 U.S. rule, exclusionary adhering policy instead to apply the did prose “competent proof available for the shall be decision that illegality in the seizure.” notwithstanding the offense cution of Richman, 509-10; v. supra, 26 N.J. at see State v. Eleuteri cert, denied, Alexander, (1951), 72 343 7 594 N.J. Guida, (1952); 118 96 1326 State v. N.J.L. L.Ed. 1938); aff’d, (E. v. 119 & A. State (Sup.Ct.1937), 297 N.J.L. 464 Cortese, Merra, (E. 1927); v. 104 & A. State 361 N.J.L. (E. 1927), (Sup.Ct.1926); aff’g, A. Misc. N.J.L. & N.J. (E. 1923). & A. Lyons, 99 v. N.J.L. State during Conven- noteworthy the Constitutional It also I, paragraph was to article tion of 1947 an amendment exclusionary rule incorporated the have proposed that would thereof “Nothing violation into Constitution: obtained Although was the amendment received into evidence.” shall be of defeated, of the merits included discussion both the debate rule incorporating of into propriety federal rule and the opinion Eleuteri v. guarantee. In his the constitutional Weintraub, outspoken oppo- Richman, supra, Chief Justice rule, summarized Con- accurately nent of the proceedings: vention of the federal rule. to the merits was reference debated,
The issue
specific
delegate
event he questioned
advisability
incorpo-
One
added
in any
rating
organic
was defeated
law. The amendment
by
an answer either
inway
Proceedings
infer
do not
Record, 608. We
1 Convention
to 25.
vote of 46
delegates
it is
our case
law,
intended
to embed
equally
thereby
wake of the constitution-
is not the unmistakable
clear that the rule
exclusion
N.J.
al
[26
511.]
provision.
exclusionary rule
apply
This
first had occasion
Court
(1961). There, the defendant’s
Valentin,
N.J.
State
alleging that he
prosecution
in a
suppress
motion
evidence
without
permit had
denied
shotgun
been
possessed a
without
proof
any
prosecutor
offer
legality
as to the
us,
appeal
pending
search and seizure.29 While the
before
Supreme
Ohio,
Mapp
Court
holding
decided
applicable
through
states
due
process clause of the
Accordingly,
fourteenth amendment.
we
remanded
permit
the matter to the trial court to
reconsideration
suppression
proof
motion in the context
“all
relevant
on the
generated
new issue
Mapp.”
N.J. at 44.
*44
Valentin, supra,
Since State v.
the exclusionary rule has
During
become imbedded in our jurisprudence.
past
twen
ty-five years
consistently
it has
applied
been
to exclude from
illegally
through
the State’s case-in-chief evidence
obtained
or in
warrantless searches
reliance on defective warrants. E.g.
Valencia,
(evidence
(1983)
State v.
N.J.
obtained as
telephone-authorized
a result of
suppressed
search
would
where
prove
requirements
State failed to
procedural
minimal
to
reliability);
Fariello, supra,
assure
(requir
State v.
but the federal
prosecution
against
precluded
under the
privilege
self-incrimination
ment
*45
register
engaging
wagering
in the business
statute
to
before
federal
for failure
prose
sought suppression
in a state
gambling.
of the evidence
Defendants
of
violating
lottery
the dismissal of
the
laws. The issue was whether
cution for
issued,
indictment,
anticipation
had
warrant
in
of which the search
the federal
prosecution.
affirmed the
state
The Court
of the evidence in the
barred
use
Zito,
(1969),
suppression
N.J.
concerned
of
State v.
denial
motion.
pursuant
validity
reliance on a
to an arrest in
of a warrantless search
challenged
to be valid
held the statute
as unconstitutional. The Court
statute
grounds independent
statute for
of the
also
that the
had
and
concluded
exclusionary
arresting
applicability
not
of the
the defendant. The
Bisaccia,
(1971),
pursuant
involved
search
issue. State v.
Prompted part by the findings grand jury present- of the ment, Attorney County General and the Prosecutors Associ- adopted February ation joint policy 1985 a statement intend- ed to achieve the systematic “institutionalization of a search procedure Jersey.”31 warrant review policy New state- ment, applies State, all County, municipal officers, which requires that applications search for warrants shall be “[a]ll Attorney reviewed designees, or his General or the appropriate Prosecutor, County designees, or his prior to their submission to the Courts authorization.” The Court has informed, been in response to inquiry, its direct this policy implemented statement has been exception without in every county in the cognizant significant State.32 We are also recurring training programs regu- search warrant offered larly municipal judges throughout court the state. We
31Supra note 14. *46 Belsole, July Attorney 32 Letterdated from Donald R. First Assistant General, Townsend, Stephen Clerk, Jersey Supreme W. New Court. policy requir- likely effect of such a statewide assume that applications, legal review of search warrant ing competent municipal judges, training programs with the combined compliance proba- extent of with the be to enhance the would of suppression of and minimize the incidents ble-cause standard defectively-issued warrants.33 evidence because connection, survey performed by the Administrative In this respect suppression motions in ten Office of Courts cal studies on a national rule are minimal: 33 Inhis prosecutions and that the of the rule's critics ple, Accounting prosecution criminals,” States, illegal studies have demonstrated tion drop the costs weighs police Look Exclusionary study [I]ndeed, due to the exclusion Fourth smaller. circumstances that the balance ed with reasonably [United States because of a 1979 29 L Ed 2d Am. Bar Found.Res.J. cases at What We Know dissenting opinion shows that have made search Impact Amendment. “costs” only attributable to the exclusion as the Court 716-17 because of Bivens v Six If the GAOdata Office aggregated study prepared problems. Report Rule: The NIJ those that led to exclusion Court, mistakenly potential federal Leon, only tips lost objectively reported (Brennan, cases basis also of evidence in the narrower Exclusionary When such convictions —are in favor of however, potential 0.2% costs acknowledges, prosecutors exclusion Unknown Federal (and S Ct in which evidence is excluded believe that Leon, that federal and state are restated as a of all reasonable mistakes of exclusion J., dissenting).] at the Still Study suggest only search and of the 635. Of ignores Justice Brennan faulty felony leads to “the release Need to restricting Rule [2014] against rule —calculated request 0.4% of and Other Studies were declined that the "costs" quite of evidence recent Comptroller their conduct on Federal Criminal Prosecutions scales are arrests this distinction course, (Burger, Narcotics Learn) problems. seizure all low. all percentage studies have demonstrated potential benefits associat cases Congress by are declined for cases, irrespective of the must these emphasized category of cases where application About the “Costs" of 104 S.Ct. prosecutors used, Contrary C.J., in all problems. General primarily Officers, in terms of actually does not violate See of the necessarily be even of countless data describe of “Lost" dissenting), it is little wonder of all cases; Davies, because of the United to the claims exclusionary the General declined for that statisti 3441-42, very rarely arrests, because mistakenly For exam prosecu dropped US Arrests, A Hard guilty these costs rule. only *47 1, 1985, during period counties the six-month of December to 31, 1986, filed, May that of reveals the motions these, motions have granted been resolved. Of 38 were and all granted motions involved warrantless searches. addition, study granted the suppression examined all the of motions three of the ten for an counties additional six-month period and in two additional during counties a twelve-month period. granted motions, only Out suppression of one order a probable involved search warrant for lack defective of cause. Courts, Report Administrative of Suppression Office Motions, July survey 1986.34 This not statewide and sample examined a suppression limited of motions. Neverthe- less, currently Jersey suggest grant its results in New of suppress pursuant motions to evidence obtained to defective relatively poses search warrants is apparently uncommon and significant no obstacle law-enforcement efforts. note recurring
We that one the most frequently themes in the criticism that has been at the decision35 directed Leon is that it will tend to undermine the motivation of law-enforce- to comply requirement ment officers with the constitutional argument cause. Professor makes the LaFave co- gently: pre-Leort Under version of the rule, had come to police finally enough gotten learn that it was not had called a they paper piece subject challenge warrant. Because that warrant was later motion to it was the warrant suppress, important be issued or police properly might that the warrant turned down at time when it be request possible investiga- compromising necessary additional information without acquire
tion. had there localities Consequently, many sound developed very going through warrant-issuing greatest practice with the process care, having magistrate. often the affidavit reviewed individuals other than * * * under Leon there go through But no reason such cautious proce- dures to. reason take the risk that every Why some conscientious will prosecutor is insufficient if when, supervisor say application copy report 34 Counselhave been furnished of this and were afforded opportunity findings. its to comment on Leon," 95 YaleL.J. “Living 906 n.5 35 SeeDripps, it, magistrate can be issue a warrant some induced to on the basis of virtually challenge? is thereafter immune from There is thus no affidavit it, that, escaping put “long-run the fact as the Leon dissenters effect” of “unquestionably integrity that case will be to undermine of the warrant 1.2, Seizure, (1986 Part), LaFave, supra process.” Pocket § Search and [1 20.] *48 “good-faith” exception find this criticism of the to be We persuasive. consequence of the of the application One obvious encouragement in of exclusionary Jersey rule New has been the comply constitutionally- officials to the law-enforcement sup- in probable-cause standard order to avoid the mandated pression suppression evidence. The rule avoids Leon violated, requir- if standard even the is evidence constitutional executing the have ing only that the officer defective warrant relying for on Whatever else objectively reasonable basis it. rule, good-faith against said for or the Leon the may be inevitably inexorably quality of exception will diminish the applications. By in eliminat- presented evidence search-warrant require- ing any noncompliance cost for with the constitutional cause, us good-faith exception assures ment of the standard will be diluted. that the constitutional White, opinion, of the note that Justice author Leon We in very in I.N.S. expressed concerns similar these his dissent 1032, 3479, 82 L.Ed.2d Lopez-Mendoza, U.S. Leon, in (1984), day which decided the same case in civil exclusionary applied rule need not held that the be Court obser- proceedings. Responding majority’s deportation immigration officers in fourth- training vation that exclusionary rule application of the principles made amendment unnecessary, White noted: Justice law, [I]mmigration in Amendment officers are and examined Fourth instructed exclusionary why suggested that this is another reason and it is education unnecessary. contrary existence of A be discerned from the is lesson could
rule
however,
during
they
programs,
that
instituted
when it is recalled
were
these
uniformly
legal regime which the
and commentators
sanctioned
in
cases
“a
&
expressed similar concerns. See Wasserstrom
have
36 Othercommentators
114-15; Kamisar,
109-10,
Mertens, supra
supra
at 662-63.
note
note
Thus,
deportation proceedings.”
support
invocation
rule
rather than
ing
unnecessary,
that the
rule
conclusion
is
existence of
programs
suggests
these
that
instead
rule has created incen
agency
tives for
that
ensure
its officers follow the dictates of the
Constitution. Since the
function of
deterrent
the rule is furthered if it alters
policies
either “the behavior of
law
individual
enforcement officers
departments,”
likely
their
it
that
seems
it was the
deterrent effect
rule’s
that
programs
points
led to the
to which the
now
for its assertion that the rule
Court
no
would have
deterrent effect.
S.Ct. at
L.Ed.2d
[Id.
Leon,
(quoting
supra,
677).]
at 796
good-faith exception
ultimately
Our view
will
reduce
respect
compliance
probable-cause
for and
with the
standard
steadfastly
persuades
that we have
enforced
us
there is a
strong
state interest
adopting
that would
disserved
We
acknowledge
consistency
Leon rule.
virtue of
between
state
federal and
courts in the
administration
the criminal
laws, although
Weeks,
we note
from
supra,
the decision
Mapp
Ohio,
1914 until
the exclusionary
applied
in the federal
constitutionally
courts
was not
compelled
Although
in the
irony
states.
there
in the
reversal
roles,
ample precedent
of these
there is
view that
*49
uniformity between federal and state
is not
courts
essential
regard
exclusionary
to
Colorado,
with
the
rule. See
v. Wolf
28-33,
1361-64,
We
that the
rule
greater
jurisdictions
obstacle to law enforcement in other
non-
where
lawyer magistrates are authorized to issue search
and
warrants
police officers’ affidavits are not
subjected
review trained
Gates,
prosecutors.
Illinois v.
U.S.
546;
City
76 L.Ed.2d at
Shadwick v.
Tampa,
(1972);
In the face evidence justice that New criminal system impaired by guarantee is not the constitutional probable cause, dissenting colleague urges our nevertheless us adopt good-faith exception promulgated in Leon because perceives public she good-faith exception “that will view rule as a sensible accommodation between protecting rights punishing an individual’s constitutional and guilty.” at 187. Post We have little doubt that assessment, particularly dissent is accurate this at a time widespread drug when drug-related use and law enforcement are issues that dominate the public national consciousness. The is likely to any have little short-term tolerance for minimally prosecution drug-related encumbers even crime. concern, however,
Our is with the Constitution and with guarantees basic and fundamental document citizens, particularly intended to afford to all our in times of public view, right our ferment. from citizen’s be free unreasonable searches seizures conducted without just preserved cause is principle, such fundamental the search warrant objects conferred by seized virtue authority evidence). not be received into may *51 separate system our protected vigilance. tripartite with preser- primary responsibility for its governmental powers, the judiciary. of the vation is that rule, application of its consistent exclusionary by virtue integral an element past twenty-five years, has become
over the search guarantee that warrants will of our state-constitutional merely probable cause. Its function is not not issue without indispens- rule also serves as the deter misconduct. The vindicating right to be mechanism for the constitutional able that searches.39 Because we believe free from unreasonable exclusionary adopted in good-faith exception to the rule Handler, colleague, argues “metamorphose that we should not 39 Our Justice *** * exclusionary from a common-law doctrine into a constitutional possibility ap right” “effectively of alternative since to do so forecloses right.” might proaches basic constitutional Post that serve to enforce the exclusionary application rule in 170. We would first observe that the Rather, Jersey doctrine. it New has never been based on common-law 657, 643, Ohio, supra, 81 S.Ct. Mapp by v. decision mandated exclusionary 1081, 1091, holding rule is "the 1684, that part and thus enforce of the Fourth and Fourteenth Amendments” essential today through process against Until the fourth the due clause. able the states decision, amendment, by Mapp has been the source applied states exclusionary Jersey’s rule. New recognizing good-faith Leon has diluted the rule Because the Court in application exception, Jersey’s rule unmodi New continued independent good-faith exception requires of the fourth a source fied "integral holding element of our state-con that the rule is an amendment. Our probable guarantee issue without search warrants will not that stitutional 157, cause," nothing acknowledgment supra more than a candid beginning jurisprudence years hundred of fourth-amendment lessons of one 524, 616, L.Ed. 746. States, 6 S.Ct. 116 U.S. Boyd United suggestion adopt rule as common- that we Justice Handler’s approaches” possibility principle of alternative not to “foreclose the law so as 25, Colorado, supra, 338 U.S. the Court in issue that divided raises the Wolf rely There, on other states free to the Court left the 1782. 93 L.Ed. effective," equally id. amendment that "would methods to enforce the fourth ignoring Murphy's admonition Justice S.Ct. at 93 L.Ed. at sanction That is no to the rule of exclusion. that “there is but one alternative Court, Mapp, the L.Ed. at 1793. In Id. at 69 S.Ct. at at all." issue, recognized experience reconsidering of California ”[t]he by the is buttressed worthless and futile such other remedies have been Leon would constitutionally-guaranteed tend to undermine the cause, process disrupt standard of and in the highly procedures employed by justice effective our criminal system guarantee accommodate constitutional without *52 enforcement, recognize good-faith impairing law we decline to a exception exclusionary rule. result, reaching hardly ignore this we can the ebb and flow during century.
of federal search-and-seizure law
this
States,”
experience
exclusionary
of other
and concluded that the
rule is the
only satisfactory remedy to vindicate fourth-amendment
interests.
We see no need in New with the rights protected by fundamental the fourth-amendment coun- terpart subject of our State Constitution. We will not the rights procedures guaranteed that vindicate the fundamental I, paragraph procedures article 7 of our State Constitution — justice that have not diluted the our effectiveness of criminal system inevitably the uncertain effects that we believe will —to accompany good-faith exclusionary exception to the federal rule. judgment Appellate Division is affirmed.
HANDLER, J., concurring.
Defendant, Novembrino, possession indicted for Ottavio dangerous possession of controlled substances and of controlled guarantee against searches unreasonable required enforce our seizures secured State Constitution. dangerous substances with intent to distribute. He filed a and, suppress motion evidence as majority noted in the opinion, suppression hearing resulted sharply conflicting surrounding accounts of the circumstances defendant’s arrest subsequent and the search of his service station. The trial court, however, evidence, credited the Appel- State’s did Division, and, now, late spite this Court. of the fact that every judge who reviewed issuance of the search warrant and examined the surrounding evidence the search and seizure version, accepted this case the State’s each reached the same conclusion—that the probable State failed to demonstrate cause justify issuance the search warrant.
I concur the unanimous determination that there was no probable Further, cause in join this case. I majority in its conclusion that pursuant evidence seized to a search warrant issued without cause must be excluded notwithstand- ing executing subjective good relying officer’s faith in upon warrant; this, in a case such as judicially-devised exclusionary applied rule must be to vindicate the underlying However, constitutional interest. I break rank with the Court expresses when it result, reaching additional reason for this namely, that the rule itself is a right constitutional directly protected under the State Constitution.
I. explaining Before my disagreeing reasons for major- with the ity conceptual as to the applying rule, basis for concerning some observations antecedent issues case this pertinent. are These relate to both the ques- non-controverted tion of probable cause highly-controverted and the issue of the *54 executing relevance of the subjective good officer’s faith. probable cause, As to in unanimity view of the opinion, I necessity see no for the exposition Court’s extensive of this I issue. would be in simply adopt content this case to the sound position of Appellate Division that the affidavit and circum- of the surrounding stances issuance search warrant failed adequate probable to demonstrate cause: The affidavit here involved revealed that a informant concluded simply drug unknown was a dealer, for reasons defendant that a person previous- gas arrested for of cocaine was seen at station defendant’s ly possession engaged in some activities which caused a edu- detective, whose unspecified training and are to conclude that criminal activi- cation, unknown, experiences taking gas in ties the form of violations of Title were at the station. place of the circumstances out the affidavit failed to contain a spelled totality objective engender single tending grounded fact a “well suspicion” * * * being crime was committed. We cause conclude, therefore, probable Novembrino, N.J.Super. (1985) [State not established. (citations omitted).] particularly light ruling This is of the that a so Court’s analogous totality-of-the-circumstances formula to that set 213, 103 Gates, forth in 76 L.Ed. Illinois (1983), validity 2d of search is now be used assess in Article probable warrants under the cause standard set forth I, paragraph at 122. Jersey 7 of the New Ante Constitution. respect executing police
With to the relevance of the officer’s faith, subjective good rejects proposition that if the Court lacking, probable cause the issuance of search warrant evidence should admissible on the basis seized nevertheless be good-faith exception recognized Supreme of the Court Leon, 897, 104 82 L.Ed.2d United States v. 468 U.S. I concur in this determination. effectively agree majority good-faith I that the test indispensable founda- dilutes cause—the constitutional by eliminating the tion for a reasonable search seizure— demonstrating grounds make a necessity for reasonable search obtained therefrom will be admissible before evidence operation of evidence. This conclusion is based on the fact that only intentional offi- rule serves to deter cial misconduct also mistaken official misdeeds. simply addition, proffered Leon is not the test under Rather, objective-sub-
subjective good as such. the test is faith actual, good faith jective good “subjective” faith: whether “objec- executing police can considered officer itself *55 162
tively” undertaking a reasonable as basis validat- —and ing upon generally search in reliance the warrant. We have —a significance eschewed the relevance or of the actual state of executing mind of the officer. recent cases we have been emphatic proposition and consistent our adherence to the that probable objective cause must be demonstrated reference to informed, reasonably expe- circumstances —what an trained and police rienced officer all of the under circumstances would have in terms understood of whether there is cause. See Bruzzese, (1983)(police 94 State N.J. 210 officer’s search and only seizure would be considered reasonable if it conformed to standards); objectively police reasonable see also State Gu- erra, (1983)(“if validity N.J. of a search can be independently sustained on objective grounds demonstrating reasonableness, the existence of other defects that do not derogate objective from the overall reasonableness impugn integrity judicial search or process should search.”) upon (emphasis added); not be relied to invalidate the Ercolano, (1979) (dissenting opinion). State v. N.J. problem objective-subjective good that faith test of requirement objective probable Leon is inconsistent with the put by dissenting cause. As Justice Brennan United States v. Leon: reviewing it is inconceivable when faced with a defend virtually court, ant’s motion to could first find that a warrant was under the suppress, invalid, Gates new [Illinois at the same v.] standard, then, time, find police “objectively officer’s reliance on such an invalid warrant was nevertheless reasonable” under [Leon] test. Because two so standards overlap it is Gates that warrant could be found invalid under completely, unlikely objectively reliance it could be seen other yet upon reasonable; mind-boggling objectively we have wise, would to entertain the concept objectively (citing reasonable reliance an unreasonable warrant.” Kami upon Shrinking sar, note 588-89; “The Fourth Wasserstrom, Incredible (1984); Am.Crim.L.Rev.
Amendment,” LaFave, "The Fourth Amend ” Drawing ‘Bright ment World: On Imperfect Faith,’ Lines’ ‘Good U.Pitt.L.Rev. 333-59 [468 3445-46, L.Ed. 2d at 721-22.] subjective good-faith Justice that the test Brennan concluded virtually requirement would eviscerate the constitutional more, I agree point and on this am I could not probable cause. concurs, particularly majority of this Court confident paramountcy proba- emphasis upon the its extended *56 view of for a reasonable search quintessential as the basis ble cause good objective-subjective rejection its of the and seizure and Ante 157. test of Leon. faith
II. its has not to do with major difference from Court My excep- good-faith of the rejection cause or its test of case, Therefore, agree this I circumstances of under the tion. The exclusionary rule. application of the Court’s the exclusion case is to sanction judgment our this effect of upon seizure a search and based derived from of evidence objec- cause—on supported by probable warrant was subjective good faith grounds notwithstanding tive — relying upon the search warrant. executing officer in by its character- Court is My departure from the occasioned in this case. exclusionary applied rule as it is ization of exclusion exclusionary rule—the that the majority has decided search objectively unreasonable from an of evidence derived right. I do not believe is a constitutional and seizure—itself Rather, a remedial it is right as such. it constitutional is a central constitutional incidental to the ancillary or rule that is searches unreasonable free from right of the citizen be ancillary rule exclusionary rule is a remedial That seizures. singular denigrates the way right in no constitutional legal potency. See from its rule or detracts importance of the I (concurring opinion). (1986) Hartley, N.J. v. State necessary to vitally exclusionary rule is that the am satisfied part of individ- right on underlying constitutional protect and seizures searches unreasonable free from uals our as a matter of remedy a court-created continued as should be has no disagreement conceptual this law. While state common rami- case, enormous may it have in this consequences practical in other situations. fications
I my am constrained to state difference from the Court I analysis reasoning because cannot subscribe to its concern- ing exclusionary the constitutional basis of the rule. The by Court’s determination is borne out neither the decisional law explicate that has served our legal traditions relative to the exclusionary rule, history nor state constitutional relevant rule, nor public considerations of sound policy generally that we consider in expounding and —factors interpreting Gilmore, our state constitution. v. State 103 N.J. (1986); Williams, (1983); Hunt, State 39N.J. State v. (1982) (concurring opinion). N.J.
A.
A
that,
review of our decisional law shows
after
even
Weeks
States,
United
34 S.Ct.
L.Ed.
(1914), in which
applied
first
under
*57
amendment,
the fourth
Jersey
apply
New
did not
the exclusion
ary
Rather,
rule.
this state adhered to
“compe
the rule that
proof
tent
shall
for
prosecution
be available
of the offense
notwithstanding illegality in the seizure.” Eleuteri v. Rich
man,
506,
(1958);
Alexander,
26 N.J.
509-10
see
v.
State
7 N.J.
cert,
585,
(1951),
denied,
908,
594
636,
343 U.S.
96
(1952);
Guida,
L.Ed. 1326
(E.
v.
State
&
N.J.L.
A.1938);
(E.
Merra,
A.1927);
State v.
tional Richman, this settled rule. In Eleuteri v. supra, 26 N.J. search warrants were invalidated because issuing magistrate power was without to authorize a search beyond the territorial limits of his 508. court. Id. at The issue was whether the fruit of that unlawful search was nevertheless admissible evidence. The Court observed that: govern- The rule rests two The first is that upon propositions. ment should not of a business” criminal order catch stoop “dirty offending against civil and criminal remedies The is that him. second the rule of exclusion is and hence ineffective, matter officer are as practical led to the from the excesses which society remedy protect available only Id. at 512. right. constitutional And further: device to the role of a deterrent —a compel respect rule has the exclusionary It disregard removing it. guarantee incentive to for the [constitutional] prevent; repair. not to enforcement
is calculated
The
is an
postulate
added).
(emphasis
Id.
rights.
It not the might be directly it is exclusionary rule related is constitutional because We, however, not “judicial integrity.” have subscribed “judicial purpose integrity” that is the served the view rule, although “judicial integri- exclusionary particular cases police ty” may threatened certain kinds misconduct See, e.g., justify of the rule. application and itself would Delaware, Franks v. (1979) (1978); (holding that N.J. Howery, State v. requires allowed an defendant be
the fourth amendment supporting challenge veracity of an affidavit opportunity to position warrant). last term we reiterated a search Just rule deterrence. function of (1985), Com’n., Jersey Racing N.J. Delguidice New police conduct is unlawful we held that of future “[d]eterrence rule, sole ‘prime purpose’ of the ‘if ” omitted). rejected argument (citations one.’ at 85 We Id. courts exclude all “judicial integrity” mandates that the warrant; to defective search based on evidence seized pursuant questions injury of the search not to privacy "is redress purpose conduct.”). [but victim to deter future unlawful rather] unlawfully that has been evidence seized. The held that Court *60 suppression in most cases wrong the evidence is and accurate the is the time unquestionably complete by the evidence reaches the court. the is to Therefore, narrowed the analysis admitting encourage of whether the evidence would future question improper actions____ law enforcement is the same as the [T]his inquiry substantially of whether exclusion would serve a deterrent at 89 [Id. question purpose.
(citations omitted).] sum, In exclusionary developed applied the rule as and in this jurisdiction focusing essentially evolved from one has on cal- lous, police or willful insolent misbehavior to one that encom- passes reflecting ignorance, official misconduct no more than mistake, situations, inexperience. or of these either the result to the objectively victim is the same—an unreasonable And, therefore, and application search seizure. the of the rule is the same—to exclude ill-found evidence in to order discour- age Thus, offending the judicial officials. it is the under- standing is “improper” what misconduct that has changed years, over the purpose not the of the rule. The genetic thread that connects is design our decisions the central exclusionary of the to improper rule deter official conduct. To reiterate, purpose solely primarily punish is not or offending compensate police officer defendant or even judicial integrity. Consequently, assure this deci- stream of sional law erodes supports upon rather than the foundation exclusionary which the Court now raises the rule to a constitu- right. tional
B. The clearly strong legal decisional law not reflect does tradi- suggest exclusionary tions itself of constitution- Hence, al stature. our do provide decisions from basis which to reason that the rule has now evolved into Moreover, constitutional express doctrine. the relevant and history against constitutional in this area militates the conclu- acquired sion rule itself has status agree analysis point I right. On this constitutional at 168. dissenting opinion. Post of the jurisdiction allowed noted, early prevailing rule our As illegal Supra and seizure. of an search the fruits into evidence firmly place when admissibility at 164. This rule of assembled Jersey’s Convention delegates to New Constitutional guarantee- provision The constitutional of 1947. in the summer and of unreasonable searches right to be free ing the citizens’ counterpart, pro- seizures, fourth amendment like its federal vides: and right houses, in their papers to be secure persons, people against violated; shall not be seizures, searches and unreasonable
effects, oath or cause, supported issue upon probable no warrant shall except describing searched and papers to be affirmation, place and particularly (1947) art. things I, para. 7.] be seized. Const. [N.J. *61 added have the Convention would proposed at An amendment I, “Nothing 7: paragraph Article following to sentence into received evidence.” hereof shall be in obtained violation rule made an exclusionary be effect, proposed that it was pro- delegates defeated right. The express constitutional 25. See Conven- of 46 to by a final vote posed amendment 19, 1947). (August 598-608 Proceedings Record tion included of the amendment leading the defeat to The debate exclusionary rule federal of the the merits of both discussion constitu- into the such a rule incorporating propriety and the Rickman, supra, in Eleuteri v. The Court guarantee. tional proceedings: the Convention summarized federal rule. to the merits reference debated, specific The issue delegate advisability incorpo- he event questioned added that any One organic aby was defeated law. The amendment rating an answer either way infer Proceedings We do not 608. Record, 598, 25. 1 vote of 46 to Convention it is case delegates law, equally to embed our intended thereby that of the constitution- wake is not the unmistakable rule of exclusion clear the the N.J. at 511] al [26 provision. and Constitution United States to the fourth amendment 2 The text of the identical. are paragraph nearly Constitution 7 of the New I, Jersey Article rule. the exclusionary reference to contains any Neither be, may It as the acknowledged, Court Eleuteri that exclusionary-rule defeat of the amendment at Constitutional left the judicial Convention rule amenable to treatment and development, perhaps point someday recognizing even it as a standard of It equally constitutional dimension. seems clear, however, brought has our case-law to this us remains, point. been, The rule always judicial as it has remedy. Though the rule has achieved scope broadened application, designed protect it is the central constitutional right of citizens to free be from unreasonable searches and by deterring seizures unlawful official conduct that otherwise right. undermines this It is constitutional thus fair to conclude (1) expressly part not a of the New Jersey (2) Constitution and the decisional law does not holdings express implication clear furnish basis deter- mining that the rule has integral part become an of the State Constitution.3
C. judicially-fashioned The Court offers why no reason ex- clusionary rule satisfactorily regarded cannot as a common- principle fully vindicating law remain efficacious in underlying right. Indeed, rights constitutional and interests are vital been firmly individual have anchored our E.g. common Hartley, law. State N.J. (privilege against self-incrimination). It therefore seems me unnecessary metamorphose unwise—because this Court —for *62 ancillary rule such the exclusionary from a common- rule a right. law doctrine into constitutional so To do forever blocks appropriately exclusionary part 3 Wecan the a consider rule to have become law,” what one of commentator labels the "constitutional common “a substruc substantive, procedural drawing ture of inspiration and rules remedial their from, authority required by, [, provisions and but not various constitutional amendment, subject rules that are] ... to modification or even [the reversal Monaghan, Law,” legislature].” "Forward: Constitutional Common 89 Harv.L. Rev. 2-3 effectively development of the rule and forecloses any future might serve approaches of alternative that to possibility the right.4 enforce basic constitutional the Moreover, incorporated permitting exclusionary rule to be the effectively prevents of into the other branches our Constitution protect exercising responsibility their to government from own right free from unreasonable searches and a citizen’s to be have, generation today, For a we until seizures. at least of expressed the role the branches confidence in other right respect to the citizen’s constitutional to government with Compare against and seizures. unlawful searches secure (“The Rickman, judiciary, 514-16 Eleuteri N.J. course, guardian is the sole of the Constitution. The it.”) Delguid- equally uphold branch sworn to executive is Com’n, (“There supra, 100 N.J. Jersey Racing ice v. New courts, duty to which with their point comes a consistent law, to to continue create barriers law administer cannot the properly that supervisory a role is pursuit enforcement in the find our- legislative branches. We duty of executive and if case.”) be remiss we point We would selves at that this government branches of comprehend to that other failed enforce- respect to the effective responsibilities with have direct willingness majority carefully” to "evaluate 4 Paradoxically, professes right. legislative remedies to constitutional preserve any attempt develop Legislature and suitable This if the ultimately develops may imply then Court has the rule, this exclusionary power effective alternative to is Ante at that it now claims "constitutional.” or even abandon rule modify it does not undermines, contradict, if directly This 39. proposition n. of a constitutional has attained the view that the permanence right. recognizes exclusion majority, intrinsic nature effect, designed conduct, to deter official rule as a improper court-crafted ary remedy light acknowledges can contract expand remedy impliedly changing to which it should be applied. of conduct kind perceptions suggest, I considerations, These support proposition right, right, is not a constitutional rule, it a constitutional itself while serves change subject doctrine, which amenable always common-law legislative and attention. executive *63 against ment guarantee of the constitutional unreasonable searches and seizures. majority itself the stresses constructive measures taken Attorney the General and other law enforcement authorities procedures
to adopt the of assure reasonableness searches quite at 150-151. It and seizures. Ante also aptly acknowl edges Legislature, specifically incorporated the which the exclu sionary rule its the Jersey into enactment of New Wiretapping Act, and Electronic Surveillance Control N.J.S.A. 2A:156A-1 to exclusion, providing statutory -26.5 In for a rule of N.J.S.A. 2A:156A-21, Legislature specifically recognized the the avail ability and, supplementary significantly, forms relief provided good that an officer’s faith reliance on a court order authorizing civil, interception any constitutes defense to criminal, proceeding against administrative instituted officer, 2A:156A-25, does suppres N.J.S.A. avoid the sion improper interception. of evidence derived from an N.J. Molinaro, N.J.Super. S.A. 2A:156A-21. State (Essex Cty.Ct.1971), grounds, 122 N.J.Super. rev’d other 181 (App.Div.1973),the court noted “In adoption that: Jersey Wiretapping New and Electronic Surveillance Con Act, Legislature attempted trol Jersey scrupu New protections lous about which it fashioned for individual privacy.” Id. at 287. The court then held:
Where evidence has been seized of that evidence unlawfully, suppression trial follows. This doctrine is a court-authored reme- ordinarily suppression Where, however, evidence stems from unlawful dy. wiretap, suppression Legislature. such evidence selected 294. Id. at remedy specifically by (citations omitted). The court also stated:
Arguably,
judiciary
setting
in a different
abandon or
could
modify
originated
doctrine since
It
this
courts.
has been
5 That statute
derived from
of evidence
expressly provides
suppression
wire or oral
if
was
any
communication
unautho
intercepted
interception
rized or
statute,
inconsistent with the
or if the order of
authorization
insufficient. N.J.S.A. 2A:156A-21.
*64
power
legislative body
however,
suggested,
a
to
that it is also
within
negate
suppression.
respect
adopt
to
from
a rule of
With
evidence derived
surveillance,
Legislature by
Jersey
electronic
the New
N.J.S.A.
an unlawful
(citations
295,
a
284 A. 2d
has
such
rule.
Id.
385.
2A:156A-21
instituted
omitted).6
a
Wiretapping Act instructs us that when
threatened
The
sufficiently
Legisla-
important, the
privacy interest is deemed
remedies, including the
to
effective
ture
not hesitate
devise
will
rule,
exclusionary
protect
interest.
this
despair
majority
to be its
line” for the
seems
The “bottom
any
alternative to the exclusion
can ever be
effective
that there
therefore,
permanency.
it
and,
might
give
we
well
ary
existing
certainly fair to observe that
alternatives
It is
Pape,
inadequate.
Monroe v.
exclusionary
largely
Eg.
rule are
(An
(1961)
individual
81
IY.
stated,
For the
I
judgment
reasons
concur in the
of the Court.
GARIBALDI, J.,
part
concurring
dissenting
in part.
I concur with the majority’s adoption
Gates,
of the Illinois v.
213,
2317,
527,
462
denied,
U.S.
103 S.Ct.
reh’g
1237,
33,
(1983),
U.S.
totality-of-the-
I consider the
I,
that violates Article
conduct
to be the deterrence
Jersey
majority,
paragraph 7 of
New
Constitution.
however,
remedy into
judicially-created
a state
transforms this
good
adoption of
faith
right.
It fears that
constitutional
rule
the constitu
exception
will undermine
position
This
tionally-guaranteed standard of
cause.
goal
protect
improper
between
valid
strikes an
balance
pub
rights
and the
ing
under the state constitution
individual
brought
transgress
law
to have those who
right
lic’s
go
the constable has
“The criminal is
free because
justice.
(1958),
Rickman,
N.J.
blundered.” Eleuteri
150 N.E.
People v.
242 N.Y.
quoting
Defore,
cert, den.,
I Ohio, 643, Mapp v. 1684, U.S. S.Ct Since 367 81 6 L.Ed.2d (1961), Court, Supreme 1081 recognizing high cost justice system criminal of indiscriminately suppressing pro all evidence, applied balancing approach bative has that has gradually scope exclusionary Stone eroded of the See rule. Powell, 465, 3037, v. 428 U.S. S.Ct. L.Ed.2d 1067 (1976); 96 49 Peltier, v. 531, United States U.S. 2313, 422 95 S.Ct. 45 L.Ed. Calandra, (1975); 338, United States 2d 374 414 U.S. 94 (1974); States, S.Ct. 38 L.Ed.2d 561 613, Alderman v. United denied, 165, 394 U.S. 961, 176, reh’g S.Ct. L.Ed.2d 89 22 394 939, 1177, 22 L.Ed.2d 475 U.S. S.Ct. cases, In those the Court held that the exclusionary judicial rule is a remedy that must be to the imposi sensitive costs and its benefits of Leon, United States 897, tion. U.S. S. Ct. 3405, 677, case, 82 L.Ed.2d Massachusetts v. companion and its Sheppard, 104 (1984), U.S. L.Ed.2d adopted specifically good exception the Court faith exclusionary rule. Leon, supra,
In United States v. at U.S. 104S.Ct. L.Ed.2d “marginal Court concluded that the produced or nonexistent by suppressing benefits evidence ob tained in objectively subsequently reasonable reliance invalidated warrant justify search cannot the substantial costs justice system] criminal of exclusion.” To understand [to fully impact rule in search and seizure recognize cases one must unlike other rules involving the fifth and sixth impli amendments —which often cate reliability concerns about the inherent and truthworthiness of the excluded evidence —this rule excludes evidence that typically probative reliable and often most information bearing guilt on the or innocence of the As defendant. Justice States, emphasized Black v. United dissent in his Kaufman 217, 237, 1068, 1079, 394 89 (1969): *67 crucially illegal Fourth Amendment is and seizure under the
A claim of search rights; ordinarily many seized other constitutional evidence different from untrustworthy by way the means of seizure its can no have been rendered beyond virtually any shadow alone establishes indeed often this evidence guilty. a doubt that defendant Leon, acknowledged of the some substantial the Court impedes applying the rule: social costs of truth-finding some jury judges; functions of the allows sentences due guilty go free or receive reduced defendants and, through application, its indiscriminate plea bargains; justice.1 generate disrespect the administration of may 906-09, 3412-14, L.Ed.2d at 688-89. at at The Court stated: objective good
Particularly faith have acted in when law enforcement officers minor, magnitude transgressions of the benefit conferred their have been system, concepts justice guilty criminal basic on such defendants offends [Id.] rectify disparity this between good exception The seeks to faith and the windfall officer the error committed guilty afforded a defendant. disposition 1 Empirical rule on the on the effects of data Leon, supra,
felony
U.S. at
are
See United States
warrants
inconclusive.
949-52,
6;
6,n.
n.
The Court concluded that suppression of evidence obtained pursuant to a warrant should be only case-by-case ordered on a instance, basis. In each weigh the court must the costs and of applying short, benefits probative rule. evidence should not suppressed where its exclusion will serve no useful, recognized purpose.
The foundation of the majority’s decision is assumption its good exception Leon’s limited faith will tend to undermine the motivation of comply law-enforcement officers to with the requirement constitutional majority cause. The to recognize fails application that indiscriminate of the exclu- sionary may actually hinder the educative and deterrent suppression remedy. functions of the Kaplan, “The See Limits Rule,” Exclusionary (1974) 26 Stan.L.Rev. (“Instead of disciplining employees, police their departments generally adopted have the attitude that the courts cannot be satisfied, that the hopelessly rules are complicated and subject to change, suppression and that the of evidence is the courts’ problem and not the departments’.”). good-faith exception fashioned in Leon does not reduce a respect Constitution, officer’s incentive because it objectively is rea- only an officer’s conduct triggered when
sonable. law should have If when a enforcement officer evidence is only suppressed violating Fourth Amendment, may known that he police departments when is invoked. officer’s misconduct suppression look more seriously good-faith gathered providing on a that evidence reliance Moreover, by good-faith creates an incentive excluded, rule will not be exception
reasonable governing in the to formulate rules activities of officers police departments including area. commentators, search-and-seizure Many proponents recognize that the formulation of such rules by police sanction, guidelines training these and the necessary implement departments, *69 protecting means of Amend are the most effective Fourth practice, perhaps (1969); rights. “Rule-Mak See McGowan, K. Justice Davis, Discretionary ment (1972); ing Mich.L.Rev. 70 659 Police,” Amsterdam, “Perspectives and the Minn.L.Rev. 50 416-431 Amendment,” the Fourth Gates, supra, n. U.S. S.Ct. at 260-61 n. at 2344-45 76 v. 15,103 [Illinois (White, concurring).] J., at 563 n. acting objectively in reasonable manner police If a officer an good in believes judge from faith he a warrant and secures more can requirements, what complied has with constitutional constantly must officers expect we of him? Law-enforcement make probable is cause to whether there judgments make about arrest. ground and that believe that a crime has been committed Is reasonable to there facts are it? Sometimes the historical has committed particular suspect the facts be clear otherwise in doubt. In other situations may or are disputed In still cause remains. so known, yet question probable far as are they information about the of secondhand reliability there are worries special others coming which occur situations, In these as that from informants. any such to arrest he cause convinced that has officer is probable when repeatedly, Powell, supra, 428 at the arrest. [Stone he will make very likely (White, dissenting).] J., 49 L.Ed.2d at S.Ct. at 538-39, decisions, police officer determines of these most This is arrest. make an probable cause to there is sufficient and reviewed is issued particularly when a warrant the case Jersey, by a in and required New superiors, as now an officer’s many Nevertheless, only the difficul- consider one need judge. defining in had standards courts themselves have ties the scope of the exclu- “probable cause” and constitutes what be occasions when sionary realize that there will rule to wrong. guess officer, judge will superiors, his police and appellate disagree be those will occasions where the trial or court [T]here will cause, police probable on the issue no [with officer] matter how grounds appeared though reasonable for arrest to the officer reason- easily question. happens men able could differ on the It also that after the may occurred, change, dramatically at events issue have law or ever so slightly, any sufficiently require judge in but event the trial to hold that probable there was not cause make arrest and to seize the evidence prosecution. offered [********] ultimately It is true that in cases such the courts have determined their mistaken; making view the officer was but it also that in is true constitutional
judgments general language parts Constitution, under the used in some of our Amendment, including disagreement among the Fourth is much there room for judges, colleagues each of he his whom is convinced that both are Surely men. reasonable when this Court divides five four on issues of cause, it tenable to conclude that the officer at fault or unreasonably making the acted arrest. Powell, 428 U.S. at [Stone L.Ed.2d at (White, J., dissenting).] In such circumstances have officers acted as reason act, public able officers would and expects should and as the them act. When it they turns out that have acted mistaken ly, good grounds, faith and on reasonable the exclusion officers, of such evidence cannot act deterrent. as a “The if they duty, do their will act similar fashion in circum similar future____” stances in the Id. *70 cases, 2d application
L.Ed. at 1114. In such of the rule will result in only keeping probative relevant and evidence thereby jury, substantially from the impairing aborting trial.
I do not share opponents good the fears of the faith exception that necessary law-enforcement officers will lack motivation to secure sufficient information to issue warrants for probable judges, warrants, cause and in reviewing that such stamps. will act as A judge mere rubber a warrant from is a safeguard designed protect rights to individual and insure that a Kasabucki, reasonable for a basis search exists. See State v. suggest N.J. It makes no sense to that a police officer deliberately appear judge would a before with an warrant, affidavit, granted if inadequate knowing that the even instance, might challenge fail to a later in the withstand first stated, require- Succinctly warrant judge. before second assumption judge will proper- that act ment based doing to in authorities act ly and so will cause law-enforcement properly.2 the law-enforcement officers or presume
I do not that either Jersey will their judges of the State of New abdicate Statement apply “Policy the law. The responsibility Jersey County Prosecutors Asso- Attorney General of New and Jersey Regarding New Prosecutorial Review ciation of February should Applications,” Search Warrant issued Policy Statement was issued after dispel such concerns. The decisions, any refuting suggestion that Gates Leon by scrutiny search warrants law will reduce these cases personnel. enforcement good exception in faith majority’s fears of the
I think that Nonetheless, regard are unfounded. this emerge our that, it should from contrary expectations, experience [i]f change good rule in a material results faith exception have to reconsider Amendment, the Fourth we shall police compliance Leon, we have undertaken here. States what [United (Blackmun, concurring).] J., at 702 yet it change has occurred. Until such No behavior does, evidence it to allow the admission of I is better believe objectively good reasonable acting with an an officer seized regarding Office of the Courts the Administrative 2 The conducted survey judges, in n.1, the assumption motions, supports suppression supra reviewing protecting granting warrants, the constitu are effectively search rights files on 82 The examined the suppres citizens. tional private study granted. involved search one of these cases sion that were Only motions majority to indicate these statistics with a interprets executed warrant. significant law-enforcement no threat the exclusionary "poses judges these are I statistics to indicate that interpret at 152. efforts” Ante reviewing such circum acting Under search warrant applications. properly encourage good will faith exception stances is no reason think there *71 judges ignore the law. faith that his require- belief conduct satisfied constitutional case, ments. In exclusionary such deterrent effect of the minimal, nonexistent, rule is if clearly “so that the balance Gates, favors the rule’s supra, modification.” Illinois v. J., (White, S.Ct. at L.Ed. at concurring).
II
independent
There
no
are
state
grounds
constitutional
justify
divergence
fact,
our
from federal law in this area.
In
“divergence
developed
Hunt,
criteria”
State v.
(Handler, J.,
N.J. at
concurring),
adopted
364-68
State
Williams,
(1983),
Initially,
Jersey
New
outspoken
courts were
in their dis-
regard for
exclusionary
inception,
rule. From the rule’s
we
recognized
have
that its
purpose
dominant
is to deter over-zeal-
ous
making
law-enforcement
from
officers
unreasonable
Nevertheless,
searches and seizures.3
early recog-
the courts
practical
nized that the
effect of the federal rule “is not to
punish the individual who
provi-
has violated the constitutional
making
sion by
seizure,
an unreasonable search and
but to
shield
penalize
the criminal and
people
of this state
suppressing
tending
prove
evidence
‘against
an offense
its
”
peace
Black,
dignity.’
(Quar-
State v.
5 N.J.Misc.
1926).
Black,
ter Sessions
heavily
court drew
from
reaffirming
Delguidice
3 For recent cases
this
see
v. New
principle,
Jersey
Racing
(1985) ("Deterrence
Comm.,
100 N.J.
of future unlawful police
”
conduct
is the
rule,
if not the sole
'prime
one,’
purpose’
quoting Immigration and
Serv. v.
468 U.S.
Lopez-Mendoza,
Naturalization
(1984);
(1981)
Nothing into evidence. hereof shall be received in violation obtained exclusionary rule merits of the based delegates debated the proposed amend- the experience, and defeated the federal Proceed- 26. 1 Convention final of 45 to See ment vote 1947). legislative the While (August ings 598-608 Record respect to is silent with fourth amendment4 history of the rejected by specifically rule, rule was exclusionary compelling This is Jersey Constitution. Framers of the New constitution but part of our rule is not a that the evidence remedy. judicial amost Colorado, 69 S.Ct. 338 U.S. after Even Wolf and exclusionary rule (1949), rejected the Court
L.Ed. 1782 admissibility. rule of general rely on continued to Justice Chief Richman, 26 N.J. Eleuteri v. Court, emphasized Weintraub, writing unanimous for a searches unreasonable is to deter the rule purpose dominant paragraph the New 7, of I, and Article fourth amendment 4 The text of the reference contains any Neither are identical. Constitution nearly Jersey rule. expressed We seizures. the same concerns as those ex- pressed by Supreme Court in the high Leon about cost of rule: incriminating The issue arises when evidence is only its thus, guilty. immediate exclusion benefits Unlike the impact, only analogy extorted to which an is confession, the evidence frequently drawn, illegally wrong; is not seized the fruit official it criminal’s own work against which could have been seized product and used him. If such lawfully *73 evidence “the fruit tree” are poisonous “The criminal is suppressed, go v. free because the constable has blundered.” 242 N. Y. People Defore, (Ct.App.1926), N.E. 150 denied, certiorari 13, 585, 587 270 46 L.Ed. 784 wrongs go 70 Two at the of unpunished expense society. Wigmore,
8 supra, § 2184, p. 40. Unlike the Federal Government which was the states must contend conceived, with more many crimes of violence. The are stakes different. N.J. [26 512.] long We have recognized that the rule should be applied only presence culpable police of misconduct. See (“It Rickman, supra, thing Eleuteri 26 N.J. at is one product condemn the an arrogant of defiance of the Constitu tion; it impose is another to the sanction when the official respect intends to mistaken, his of oath office but is found to be say, by vote.”); let us the margin single Gerardo, of a State v. (1969)(holding 53 N.J. that was exclusion not mandat since, ed “important fourth amendment as it is our society, imposition judicial does not call for sanctions [it] enforcing where officers have followed the law such punctilious regard here”); they Zito, have State v. N.J. 206, 211, (1969) (concluding officers’ reliance on a providing person’s “give good statute that a inability to prima account himself” is facie illegal purpose evidence of not “unreasonable” the meaning within of the fourth “Surely,” noted, arrogant amendment. court “it an officer to abide by the statutes of his State. On the contrary, it presumptuous would be of him to sit in constitution judgment.” al In the sup circumstances the court found pression criminal, of the fruits “would a windfall to the end....”); Bisaccia, serve no laudable State 58 N.J. (a (1971) deliberately judgment acquittal false judicial process” contempt “debases the and breeds for the justify deterrent thrust of the criminal law. “To so serious an judicial process, compensating gain some should be insult Moreover, skeptical as to incontestable.” we remained whether genuine all, especially any the rule has deterrent effect case, where, police good as in had acted in faith and insolence.”). “without trace of Bruzzese, (1983), recently we re- State v. N.J. fourth is rea-
affirmed that touchstone amendment search and seizure We held that a officer’s sonableness. objec- only be considered reasonable if it conformed to would tively police standards. This is the same test estab- reasonable Likewise, empha- we lished the Court Leon. Bruzzese necessary application objective sized that the of an standard is citizens, “re- safeguard privacy rights of our since the quirement of reasonableness is not one without teeth.” Id. at 226; Guerra, (1983)(“[I]f see also State v. N.J. validity independently objective of a search can be sustained reasonableness, other the existence of grounds demonstrating derogate objective defects that do not from the overall reason- *74 impugn integrity judicial of the ableness the search or search.”) upon invalidate the process should not be relied added). (emphasis Leon,
Moreover, in recognized, as did the Court we have police conduct is to be evaluat- the reasonableness of a officer’s long have acknowl- practical ed a and realistic manner. We face edged problems the difficult law-enforcement officials concerning probable cause and realized that sense without a statements must be looked at a common way officer’s [t]he grudging negative an awareness that few or attitude. There must be police- legal training material submitted to demonstrate
men have and that be with the one would cause not described technical nicety expect probable may judge take into account of a member of the bar. should Moreover, State v. Con- knowledge of and work-a-day specialized experience policemen. must tested tursi, N.J. by The facts asserted be life on which reasonably prudent considerations practical everyday officers act. police experienced N.J. at Kasabucki, 117.] [State encourage police We warrants, officers to seek since the by review of a warrant a neutral judge and detached offers a safeguard public further against police unreasonable action. As Justice eloquently Francis wrote in State v. Kasa- bucki, supra, N.J. 115-16: police rely facts, When the officer does not on his own evaluation of independent judgment judicial submits them to the of a officer for a determina- they up probable cause, tion as pursuant to whether add a search to a by judge equated warrant issued a cannot be with “insolence in office” or abuse police power, of the officer’s reasonably can nor it be said that the citizen’s security only Fourth Amendment police. rests in the discretion of the Thus adequacy probable when the of the facts challenged offered to show cause is pursuant warrant, after a search made adequacy appears a and their to be marginal, ordinarily sustaining doubt should be resolved the search. provides That is because the warrant legitimacy clear evidence of the of the purpose. bespeak preference officer’s The decisions accorded a search authorized after the facts and subjected inferences therefrom have been judicial
neutral consideration and found to constitute cause it. [Citations omitted.] foregoing Jersey review New case law demonstrates Jersey that New has no historical attachment to the exclusion- ary fact, rule. have, the cases show that we essence, long recognized good faith exception to the exclusionary rule. Thus, I disagree with the majority that the exclusionary rule has been embedded in jurisprudence our for the twenty-five last years. Ante at 149.5
I do not think
public
personnel
law-enforcement
perceive
will
reducing
the Court
vigilance
protect-
its
ing the state
rights
constitutional
of an
if
prosecu-
individual
Macri,
(1963),
Valentin,
(1961),
State v.
Ill good application exception We turn now an of the faith policeman’s this case. Whether the conduct here was that of objectively policeman very question. reasonable is a close officer, warrant, drafting He was a new his first which was not by any superiors. his He detective reviewed and another independent investigation conducted an for three hours. Cer- Policy Attorney tainly, present under the Statement of the Jersey, County General and Prosecutors Association of New by screening there would have to an internal of the warrant Attorney County either the General’s Prosecutor’s Staff. Moreover, independent investiga- considering scope Leon, question tion done the officers there is serious investigation in independent whether there was sufficient this below, Nevertheless, majority, case. the courts as well as the objectively good that the officer acted in faith and in an believe and there- manner. I would abide their decision reasonable permit judgment Division and Appellate fore reverse the good exception faith introduction of the evidence under the future, however, in the absence rule. significant investigation pre-application independent *76 screening, I would not hold similar conduct officer objectively to be reasonable. WILENTZ,
For Justice and Justices affirmance —Chief CLIFFORD, HANDLER, POLLOCK, O’HERN and STEIN—6.
Concurring part dissenting part in —Justice GARIBALDI—1.