State v. SmithState v. Smith
Defendant appeals from a conviction for possession of marijuana. Arresting officers found a mailed package of marijuana in his car and an incriminating letter in his bedroom. Inter alia, a number of search and seizure questions are presented.
The judge who later tried the case issued a warrant to search defendant‘s home on August 19, 1968. This warrant, which authorized a search for “narcotics and narcotics paraphernalia,” was executed August 28, 1968, and defеndant was
FACTS PERTINENT TO SEARCH ISSUES
Except where otherwise indicated the facts here stated were elicited at the trial rather than on the hearing of the motion to suppress.
A short time prior to August 19, 1968 Detective Charles Croce of the New Jersey State Police received information from the United States Bureau of Customs that during a routine examination of packages mailed from Vietnаm their agents had discovered a package containing marijuana addressed to defendant Wilbert Smith, 319A Springfield Avenue, Penns Grove, New Jersey. Control of the package was assumed by the customs authorities, acting in cooperation with the postal authorities. The package reached the Penns Grove Post Office on August 15, 1968 and was at once examined by Detective Croce to determine the contents. He was satisfied that it was marijuana.
On August 19, 1968 Detective Croce made application for a search warrant for the Smith home. His supporting affidavit averred that he was experienced as a narcotics investigator and that he had “probable cause” to believe that Smith was in possession of “Marihuana” [sic] at the premises in question. His belief was rested on information from federal customs and postal officers (named) that a package containing the drug was mailed August 6, 1968 from the Far East, purportedly by one SP/4 B. Brown, with an indicated serial number, addressed to Smith at said premises; that Croce personally examined a sample of the contents and believed it to be marihuana [sic], and that a customs officer had informed him that examination of the substance by federal authorities had determined it to be such. (Testimony at the trial was to the effect that an investigation showed there was no such person as SP/4 B. Brown with the specified
An effort by local postal personnel to deliver the package to defendant on August 19 (after issuance of the warrant) failed because defendant and his family were on vacation. A slip was left at the house notifying defendant to pick up the article at the post office (the package being registered). After another abortive effort by the officials to effect delivery, defendant finally obtained possessiоn of the package on August 28, 1968 under the following circumstances. At the motion hearing defendant testified that on August 27, 1968 he received a notice to pick up the package. On August 28, 1968 he asked a fellow-employee, Baylor, to pick up the package for him as defendant‘s work shift did not end prior to the postoffice closing hour. Trial testimony disclosed that the police maintained surveillance as Baylor picked up the package and followed him to his home. The police obtained Baylor‘s cooperation, and waited in and near his home for defendant‘s arrival. Defendant came and received the package from Baylor. He was seen to place the package in the trunk of his car. The police followed him home in the course of a journey during which he did some shopping and placed the purchases in the car (not the trunk). The police were unable to ascertain whether or not defendant brought the package into the house from the car on arrival.
On the motion to suppress, defendant testified that he had placed the package in his car trunk after obtaining it from Baylor, and that he did not open the package and was ignorant of its contents. He was in his house when the police offiсers knocked on the door. Defendant‘s wife answered the door, whereupon the police officers identified themselves and stated their belief that defendant had narcotics in his possession. They then informed defendant that they had a search warrant and read it to him. However, he was not advised of his rights nor placed under arrest. The police asked him where the package was and he told them it was
The record of the motion to suppress does not show the contents of the letter, but that of the trial indicates the letter wаs dated August 11, 1968, was addressed to defendant, refers to “that bag [and “that smoke“] I sent you,” and explains methods of “cutting” the contents so as to enable defendant to “make well over $1,000” therefrom. It also tells defendant to send Domenick “the bread” (money) to a new address if he receives “the smoke.” After the instructions for “cutting” the letter concludes: “Frankly, I shouldn‘t have to tell you all this because I know you have been out there just as long as I have.”
The State‘s proofs on the motion to suppress were confined, essentially, to testimony by Sergeant Reeves that upon arrival at the Smith home on August 28, 1968, and before any search or seizure, he rеad and served both the search warrant and arrest warrant upon Smith, and placed him under arrest. On cross-examination, he said he asked Smith no questions, that he advised him of his “rights,” and that he knew the package was in the car because he “saw it” (presumably en route to the house). The court refused to allow
After getting the package the officers searched a bedroom and found the Domenick letter and two envelopes in a bureau drawer. One envelope contained the letter. The other envelope bore Domenick‘s name as sender of another (unidentified) letter. On cross-examination Reeves said he had not asked Smith where he kept his papers, but went directly to search the bedroom and found the letter. He did not search elsewhere in the house.
In denying the motion to suppress the judge (who also conducted the trial) held, responding to the respective contentions of defendant: (1) the search warrant was adequately supported by probable cause to believe marijuana was in the house; (2) the seizure of the package was valid under the warrant, the car not being “remote” from the house; alternatively, (a) defendant consented to the search of the car, and (b) the search of the car was lawful as incidental to the arrest; (3) the letter was properly seized in a search incidental to arrest because it was written “in connection with the traffic or the method of disposing of or selling this contraband.”
Defendant poses the same search and seizure questions before us as he did below.
I. RESTRICTION OF CROSS-EXAMINATION ON MOTION TO SUPPRESS
At the outset of our consideration of the search issues it must be observed that the motion judge was ill-advised
II. VALIDITY OF THE SEARCH WARRANT
Defendant argues that the warrant is defective for lack of probable cause since the proofs at the trial show that the package of marijuana was, to the knowledge of the police including Detective Croce, affiant on the affidavit to secure the warrant, never in the defendant‘s home prior to the issuance of the warrant. However, the facts mentioned were not in the knowledge of the issuing judge. The judge may have deduced from the affidavit that it was probable that the package had already reаched the home by virtue of the presumption of transmission of the mails in due course.
The problem presented peripherally implicates the issue, not here briefed by the parties, whether a search warrant will be invalidated on a showing that a statement or conclusion
III. SEIZURE OF THE PACKAGE
The much broadened authority of the police to search motor vehicles on probable cause without warrant, under the most recent decisions of the United States Supreme Court and our own Supreme Court, leave us with no doubt that the taking of the package of marijuana was valid on that approach. See discussion infra. We therefore will nоt dwell at length on the other bases of justification for that seizure advanced by the State — consent of defendant and search incidental to arrest. The trial court‘s conclusion that
As to the theory of search of the car incidental to defendant‘s arrest in the house, this wоuld seem vulnerable by plain analogy from the recent invalidations, even on a pre-Chimel3 basis, of searches of a house purportedly incidental to arrest just outside the house, as not sufficiently within the “immediate vicinity” of the arrest. Shipley v. California, 395 U.S. 818, 819, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).
We conclude, however, that defendant‘s turning over of the package to the officers was constitutionally harmless in a Fourth Amendment sense, since they had the right, even without a warrant, to invade the car to look for the package on probable cause to believe that it contained marijuana, an instrumentality of crime and contraband, and that it was in the vehicle. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970).
In Chambers a car which the policе had probable cause to believe was used in a service station robbery earlier that day was stopped by the police and its occupants arrested. The car was removed to the police station and there searched without a warrant, with the resultant discovery therein of loaded revolvers. In sustaining the validity of the search (without reliance upon the exception for searches incidental
On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable cause factor still obtained at the statiоn house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car‘s immobilization until a warrant is obtained. [399 U.S. at 52, 90 S.Ct. at 1981]
In the instant case there was under the evidence probable cause for the officers to believe the package was either in the house or in the car. Having been told by defendant before any search that the package was in the car,4 probable cause аs to location in the car was pinpointed and confirmed. The car remained a mobile conveyance, and, under the explicit rationale of Chambers, supra, the officers had the choice of holding the car while going for a search warrant expressly directed to the vehicle or searching it on the spot. Therefore, doing the latter would have been legally unexceptionable. See also State v. Boykins, 50 N.J. 73 (1967); State v. Barnes, 54 N.J. 1, 8-10 (1969), cert. den. 396 U.S. 1029, 90 S.Ct. 580, 24 L.Ed.2d 525 (1970); State v. Hock, 54 N.J. 526, 534-535 (1969).
IV. SEARCH AND SEIZURE OF THE LETTER
We approach this issue on the basis of the State‘s alternative position that the letter was properly seized in a search of the house incidental to the arrest of the defendant.
Defendant‘s first attack upon this position is that the search of the bedroom where the letter was found was unreasonable as too remote from the locus of arrest — the room near the doorway — citing Chimel v. California, supra (395 U.S. at 763, 89 S.Ct. 2034). It was there held that the police could not, incidental to an arrest in one room of a dwelling, search another. However, the United States Supreme Court has not yet held that Chimel is to be applied retroactively, see Shipley v. California, supra (395 U.S. at 819, 89 S.Ct. 2053), and our own Supreme Court has decided against its retroaсtivity unless required by the United States Supreme Court. State v. Carter, 54 N.J. 436, 449 (1969), cert. den. 397 U.S. 948, 90 S.Ct. 969, 25 L.Ed.2d 130 (1970). The search and determination below having predated Chimel, we will not follow that decision in the present case, but rather the rules as to scope of search incidental to arrest reflected by prior law, principally exemplified by Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). See also State v. Doyle, 42 N.J. 334 (1964).
Under the cases last cited the search of the bedroom of the instant one-story house5 was not unduly remote from the room where defendant‘s arrest had been effected. The search was therefore not prevented from being classified as incidental to the arrest for reasons of remoteness.
There is a marked difference between private papers and other objects in terms of the underlying value the Fourth Amendment seeks to protect. As we have said, private papers are almost inseparable from the privacy and security of the individual. To browse among them in search of anything inculpatory involves an exploratory search indistinguishable from the search under the general warrаnt which the Fourth Amendment intended to outlaw. See United States v. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. 416 (2 Cir. 1926). Indeed, even a search for a specific, identified paper may involve the same rude intrusion if the quest for it leads to an examination of all of a man‘s private papers. Hence it is understandable that some adjustment may be needed, and presumably it is to that end that a search may not be made among a man‘s papers for a document which has evidential value alone. [at 515-516]
The items of clothing involved in this case are not “testimonial” or “communicative” in nature, аnd their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment * * *. This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure. [387 U.S. at 302-303, 87 S.Ct. at 1648]
Reflection upon the foregoing expressions of our highest state and federal courts raises two major problems in respect of paper searches: (a) manner, scope and extensiveness of the search, and (b) the possible survival of Fifth Amendment considerations in delimiting the kinds of papers which may be seized.
In respect of (b), however, regardless of the ultimate position the United States Supreme Court may take on the caveat quoted above, it is apparent that the writing here involved was not a testimonial utterance by defendant, and taking it and using it against him therefore not a compelled self-incrimination in the sense of the caveat in Hayden. In any event, moreover, there is no reason to believe there is or will be any change in the pre-Hayden principle that papers which are instrumentalities of crime are always seizable, whatever the incidental incriminating effect on their owner. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); State v. Bisaccia, supra (45 N.J. at 515); United States v. Bennett, supra (409 F.2d at 895-896). The letter here in question was clearly an instrumentаlity of the criminal enterprise of marketing marijuana in this State. To the extent that the search may be regarded as having been aimed at discovering such an instrumentality, the admonition in Bisaccia, quoted above, against searching a man‘s papers “for a document which has evidential value alone,” is not pertinent.
Moreover, a considerable volume of authority, even after Hayden, countenances searches for papers and documents, incidental to arrest,6 not only as to instrumentalities of crime, but as to such as are sought in the reasonable belief “that the evidence sought will aid in a particular apprenhension or conviction.” See United States v. Bennett, supra (409 F. 2d at 897); United States v. Baratta, 397 F.2d 215 (2 Cir.1968), cert. den. 393 U.S. 939, 89 S.Ct. 293, 21 L.Ed.2d 276 (1968), reh. den. 393 U.S. 1045, 89 S.Ct. 613, 21 L.Ed. 2d 597 (1968); State v. Bullock, 71 Wash.2d 886, 431 P.2d 195 (Sup. Ct. 1967); People v. Crosslin, 251 Cal. App.2d 968, 60 Cal. Rptr. 309 (Ct. App. 1967). For a similar approach in search warrant cases, see United States v. Munroe, 421 F. 2d 644 (5 Cir.1970); Morales v. State, 44 Wis.2d 96, 170 N.W.2d 684 (Sup. Ct. 1969); Gurleski v. United States, 405 F.2d 253 (5 Cir.1968), cert. den. 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969), reh. den. 396 U.S. 869, 90 S.Ct. 37, 24 L.Ed.2d 124 (1969); United States v. Zovluck, 274 F. Supp. 385 (S.D.N.Y. 1967).
Further, while forced by the then existing state of the federal cases to iterate the “mere еvidence” limitation as to private papers, the court in Bisaccia did say: “Even as to private papers, this `mere evidence’ limitation upon a search is not an easy line to defend * * *.” (45 N.J. at 516).
Finally, some weight as to the Supreme Court‘s present intent may be given to the fact that in revising the practice rules in 1969 the court adhered, in the provision governing objects seizable pursuant to a search warrant, to the previous formulation: “* * * property, including documents, books, papers and any other tangible objects * * * constituting evidence of or tending to show any * * * violation [of the penal laws of this State].” Compare former
We consеquently are confident that notwithstanding what was said in Bisaccia any general prohibition against seizure of papers or documents merely because they may evidence the owner‘s complicity in crime is no longer viable.
We thus arrive at a consideration of problem (a), supra, in relation to its effect upon the legality of the seizure of the letter. As noted in the quoted excerpt from Bisaccia, supra, strictly Fourth Amendment considerations properly forbid wholesale rummaging or browsing through a persons‘s papers in the unparticularized hope of uncovering evidence of crime. See Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed. 2d 728 (1969); United States v. Zive, 299 F. Supp. 1273 (S.D.N.Y. 1969) (both cases, search incidental to arrest); cf. People v. Martin, 49 Misc.2d 268, 267 N.Y.S.2d 404 (Sup. Ct. 1966) (search warrant). Emphatic reiteration of the same concern has recently been evidenced by the United States Supreme Court in Chimel, supra (395 U.S. at 767, 89 S.Ct. 2034), in citing and quoting from Judge Learned Hand‘s opinion in Kirschenblatt (also quoted in Bisaccia), condemning the rummaging “at will” through
Difficulties in reconciling the prohibition against “exploratory” or “rummaging” searches with the permission to look for and seize writings which are either instrumentalities of crime or reasonably believed likely to “aid in a particular apprehension or conviction,” see United States v. Bennett, supra (409 F.2d at 897), confront the law enforcement officer attempting to do his job efficiently and yet to avoid wanton invasion of the privacy of the owner of the papers. The character of a paper ordinarily cannot be known until read or inspected, at least cursorily. Finding a paper within the seizable categories, reasonably believed to be present in the physical area of the premises lawfully searchable,7 may well require perusal, to a varying degree, of innumerable documents before the target writing is found.8
Notwithstanding the complexity of the problem and the lack of direct and specific authority in the area, we must formulate reasonable and practicable criteria for admeasuring the legality of the procedure here used in the seizure of defendant‘s letter, giving due weight both to constitutional and law-enforcement considerations. We are, however, handicapped by the insufficiency of proofs in the record of the motion to suppress (or of the trial) to permit a determination as to just how extensive, random, detailed or needlessly exploratory, if at all, this search actually was. We know only
If the totality of the evidence indicates that the officers’ purposes and methods of search were so guided and that the physical areas covered, the quantum of papers examined and the extent of perusal engaged in were no more than was reasonably necessary to find and take lawfully seizable papers, the search and seizure of the letter should be adjudged valid and free of the connotation of an “exploratory search” in the invidious sense.
The matter will accordingly be remanded for a hearing and detailed findings of fact and conclusions on the issues outlined relative to the search resulting in the seizure of the letter.
V. ALLEGED DISQUALIFICATION OF JUDGE ON MOTION TO SUPPRESS
Defendant contends the judge who heard and denied the motion to suppress was disqualified because he issued the search warrant. He cites
It is significant that notwithstanding the regular practice since adoption of the search warrant procedure rules in 1963 for issuing judges to sit on motions to suppress, neither the cited rule nor that dealing with procedure on motions to suppress was changed by the 1969 rules revision in any respect here pertinent.
VI. ADMISSIBILITY OF THE LETTER AS AGAINST THE HEARSAY RULE
Finally, defendant contends there was fatal error in the admission of the letter over his objection on hearsay grounds. The State successfully defended its proffer on the ground the letter was part of the res gestae and was offered to show knowledge by defendant of the contents of the package he arranged to have picked up at the postoffice and turned over to him. We are satisfied that the letter was not incompetent as hеarsay since it was not offered to establish the truth of the statements of fact contained therein, and defendant made no request for limiting instructions to the jury should his objection not be sustained. When a fact relating to an out-of-court declaration is relevant to a fact in issue without regard to the truth of the fact declared, admission of the declaration does not violate the hearsay rule. 6 Wigmore, Evidence (3d ed. 1940), § 1788 at 234. See Evidence Rule 63; State v. Stilwell, 97 N.J. Super. 424, 428 (App. Div. 1967). Here defendant‘s receipt and retention of the letter, independently of the truth of the factual assertions therein, tended to show defendant had reason to
Examples of similar permitted uses of out-of-court declarations to establish incriminating knowledge by a defendant are common. See McCormick, Evidence (1954), § 228 at 464-465; 31A C.J.S. Evidence § 257, at 677; Brown v. United States, 403 F.2d 489 (5 Cir.1968), cert. den. 397 U.S. 927, 90 S.Ct. 932, 25 L.Ed.2d 106 (1970); United States v. Grow, 394 F.2d 182 (4 Cir.1968), cert. den. 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968); People v. Tahl, 65 Cal.2d 719, 56 Cal. Rptr. 318, 423 P.2d 246 (Sup. Ct. 1967), cert. den. 389 U.S. 942, 88 S.Ct. 301, 19 L.Ed.2d 294 (1967).
In view of the foregoing conclusion we need not pass upon the State‘s alternative position that the letter is admissible as an exception to the hearsay rule — i.e., a statement of the declarant‘s state of mind in respect of plan, motive or design. Evidence Rule 63(12); cf. Hunter v. State, 40 N.J.L. 495, 541 (E. & A. 1878). The argument is that the letter shows Domenick‘s state of mind as including defendant in his scheme, and that that fact, coupled with defendant‘s receipt and retention of the letter, later acceptance of the package from the post office through another, and the temporary placement of it in defendant‘s locked car trunk, in totality bespeak guilty participation in the scheme.
For the reasons stated in Part IV of this opinion the matter is remanded to the County Court for a hearing, findings of fact and conclusions consistent with the views there set forth. These should be completed and returned to this court within 45 days. We retain jurisdiction. The parties may apply to the clerk thereafter for instructions as to further briefs and/or argument.