*1 IV. estoppel process, address the issues and need not of due
We impact Woolley address the of v. nor need we Hoffman-La- Roche, concerning supra, N.J. 284. No other claims raised, and, validity particular these have as of benefits been noted, way suggest inwe no that retirement benefits cannot be preserve integrity system. modified to of the benefit narrow, wholly statutory ground our decision We rest on the application requirement uniform 40A:10-23 that the N.J.S.A. requires justifies terminating nor benefits afforded to neither by predecessor agency pursuant plaintiff autonomous regulations. justification, In the of such a state absence involved, compensatory given the nature of the benefits plaintiff’s retirement was not authorized. rescission benefits Accordingly, plaintiff we hold that as to Gauer and retirees situated, county by the Board’s similarly is bound Welfare judgment Appellate Division is 1974 resolution. therefore reversed. Justice WILENTZ and Justices
For reversal —Chief POLLOCK,HANDLER, O’HERN, GARIBALDI STEIN—6.
For affirmance —None. participate. did not
Justice CLIFFORD PLAINTIFF-APPELLANT, JERSEY, HARRY v. STATE OF NEW SUGAR, D. DEFENDANT-RESPONDENT. Argued May 1987. 198 7 Decided *2 Cronin, General, Deputy Attorney argued Mark Paul (W. Edwards, appellant Cary Attorney cause for General of Moczula, Jersey, attorney; New Mark Paul Cronin Boris General, brief). Deputy Attorneys of counsel and on the argued (Green- Jay respondent H. the cause for Greenblatt Riesenburger, attorneys; Jay blatt & H. Greenblatt and Kizner, brief). on the Mitchell H.
PER CURIAM. This case has been before this court twice this before. On appeal sup- third hold that the trial court erred it we when pressed from the evidence derived a search of defendant’s discovery resulted in the property, a search that of the victim’s body.
I. 10, 1979, Harry Sugar disappear- July reported Dr. D. On wife, 31, 1979, Sugar. Sugar ance of his Joan On Dr. signed consenting ground a form to a search of his house and police. proved The search fruitless. On Au- the Vineland 0, 1979, California, gust Sugar Dr. was in Vineland while returned to the and unearthed a shallow officers grave Sugar. The was found under with the Joan picnic to the house. table close 7, 1979, day, August arrested as a
The next Dr. was During questioning, Dr. material witness to her homicide. he had Sugar requested advice of counsel. The conversations private in in at the lawyers were held a room with room, Using microphones in Lieutenant station. concealed Soracco, Tirelli, Joseph Joseph Detective Leon and Michael eavesdropped Dr. Guy Lieutenant Buscemi on and recorded lawyer. Wal Sugar’s conversation with his Detective William portions and Detective John Mazzeo also heard ters I), Sugar (Sugar 84 N.J. 4-7 conversations. See State v. (1985). II), (1980); (Sugar 220-24 State v. overheard The Vineland used the information was Sugar’s a search warrant of Dr. home. search to obtain 1979uncovered additional evidence corrob- conducted incriminating orating the information overheard further Sugar in the homicide of his wife. Dr.
Later,
Sugar’s attorney
informant told Dr.
that his conver-
an
bugged.
this disclosure
his client had been
When
sation with
confirmed,
Attorney
General removed the Vineland
Prosecutor’s Office
Department and the Cumberland
Police
investigation
prosecution
the case and assumed the
from
surreptitious eavesdropping
directly. Appreciating
prosecution
jeopardy,
Attorney
General went
placed the
rely only
persons
investigation, attempting to
on
ahead with the
illegal
untainted
surveillance.
and evidence
against him
charges
dismissal of the
on
moved for
rights had been violated.
ground
that his constitutional
granted
This
reversed. We
The trial court
the motion.
Court
rights had been violated
agreed that defendant’s constitutional
charges
criminal
was not
that dismissal of the
but concluded
egregious
of constitutional
Despite the
violations
mandated.
conduct,1
ruled
police’s
in the
the Court
guarantees involved
“carefully purged of all taint from
prosecution was
that if the
*4
I,
See,
e.g., Sugar
The State was able to grand jury, gain the case to the indictment, eventually an Sugar. secure a conviction of On appeal, this Court reversed the conviction. We held that the trial court in allowing had erred Detective Mazzeo to abe for the participated witness State because he in and was tainted eavesdropping. Excluding being him from a witness minimally required remedy misconduct; was as a for the official required it was also because the defendant would have been effectively precluded exposing from that witness’ bias.
II, supra, at 226-32. We also reversed the trial deny suppress court’s decision to defendant’s motion to body admission of the victim’s as evidence. The trial court’s theory decision was based on a that the search that uncovered impliedly this evidence was consented to the defendant. However, implied the evidence for the claim of consent came Mazzeo; mostly from testimony because Mazzeo’s was inadmis- sible, ruling the trial admitting body court’s on and deriva- longer tive forensic test results as evidence was no Id. tenable. open 233-35. possibility We left that if even the search illegal, that uncovered the could be admitted Id. discovery” into evidence under the “inevitable doctrine. 235-40. remand,
On the trial court held State had not produced competent, sufficient admissible evidence unequivocally, intelligently, had consented and voluntar- ily to the search of his home on 6. The trial court
156 proving in that the State had not met its burden further held inevitably Based on body that the would have been discovered. conclusions, body the trial use of victim’s those court denied the Appellate summarily The affirmed the as evidence. Division hold trial court’s decision. We reverse. We that the State has inevitably showing in met its burden that the victim’s have we the trial would been discovered. Because rule that admitted as under court should have evidence doctrine, discovery not reach con- inevitable we do the State’s tention, concurring opinion, accepted by the that the trial court implied a theory have admitted that under should evidence strong consent to search. We have reservations that the 6, 1979, actually which to search conducted on led discovery body, can under of the circum- of the be sustained all pointed Sugar II, in stances as a consensual search. As out supported to consent a warrantless search otherwise require- probable exceptions or other clear to the warrant cause unequivocal, voluntary, knowing, to ment must shown be be intelligent. 100 at 233-35.
II.
exception
exclusionary
discovery
inevitable
Williams,
431,
in
rule was first elaborated Nix v.
467 U.S.
2501,
(1984).
inevitable doctrine: (1) investigatory- normal We the State to show require proper, specific investigation would have been order pursued complete procedures *6 (2) surrounding the under all of case; the relevant circumstances the of pursuit those would have resulted in of the procedures inevitably discovery evidence; (3) through the of the evidence the use of discovery such would procedures have occurred wholly of such evidence independently discovery by [Sugar 100 N.J. at unlawful means. supra, II, 235.] Also, proof the State’s burden of convincing” is the “clear and standard rather than the “preponderance more lenient federal of the evidence” standard. Id. at 240.
Recent
federal court cases have elaborated and clarified
discovery
various elements of the
Rulings
inevitable
doctrine.
present
relevant
to the
case include the conclusions that
the
applies
disputed
doctrine
inevitably
where
evidence
would have
by
private
party
by
police,
been discovered
rather than
Hernandez-Cano,
e.g., United States v.
(11th
III. regarding The trial court reviewed the evidence inevitable discovery body. body unevenly of the victim’s The was buried ground picnic in shallow under a table close to the house. burial, ground body A number of weeks after where the eventually showing depres- was buried would settle a marked vegetation. changes sion accentuated an absence of These readily body would The be visible even a casual observer. given would have off a odor that detectable would be noticeable by persons strongly and would attract animals and insects. An expert body early also testified that had the been discovered prove November the State would able to have been presence poison body. of in the facts, to these the State adduced evidence stress-
In addition early Sugar, having agreed to sell house ing that Calliaris, prop- have transferred body buyers. argued The State that the would then erty to The if inevitably been discovered. Calliaris testified that have they come they property, were on the would have across yard, as working in the as well from the course body. dog digging at the site of the buried likelihood their passed by title yet sale had not been executed nor had Sugar’s property. on Dr. the time was discovered documents, co-sign Sugar being deed Mrs. able Without had, completed only if Dr. with the sale could have been *7 Calliaris, except a the sale of the petitioned the court Sugar’s right. premises from dower Mrs. relating
Relying primarily on the evidence to the sale of the indicating the that evidence property, trial court determined the body inevitably been the victim’s would have discovered proof required of in this did not rise the level of State The trial then that the State had not met case. court concluded by II: under the test established “the State its burden any from produce failed to reliable evidence which this has convincingly clearly can and conclude when and under court have been inevita- precise what circumstances the would bly discovered.” standard,
The must show trial court’s the State discovery precise “when and under what circumstances” occur, discovery would misconstrues the inevitable standard. comport trial not by as articulated court does The standard Nix and support II and finds no with our decision subsequent federal cases. To the inevitabili court establish evidence, discovery ty of the State need not demonstrate discovery. It circumstances of evidence’s need exact leading discovery. need path the exclusive It establish court, only present persuade by a clear facts sufficient convincing standard, It be discovered. that the
159 may by do this demonstrating discovery that such would occur in one ways. or in several A possibilities may number cumulatively constitute clear and convincing evidence that the evidence would be discovered. The only present State need facts or proving each such fact or by element elements— preponderance of the evidence—that in clearly combination convincingly establish the ultimate fact and lead to the conclu- sion that the evidence inevitably would be discovered. See Brown, (1979) (the State v. jury’s N.J. subsidiary inferences need not be established the same strict standards required finding); for its Nesson, ultimate see also “The Evi- Event,” dence or the (1985) (in 98 Harv.L.Rev. 1388-90 jury determination persuasive of the most legal-narrative in case, only present “narrative need the most believable account of each constituent story”). element of the misperception trial court’s legal govern- standard ing the discovery may inevitable doctrine have contributed to an unduly legal narrow consideration and erroneous assessment of presented. all the evidence procedure The usual point at this would be for the Court to remand this case to the trial court for correct, it to redetermine the matter under clarified stan- See, Roth, (1984). e.g., However, dard. State v. we perceive do not this case as a usual case. This is a murder prosecution, delayed important which has been while constitu- legal tional and issues were considered this Court on three *8 separate appeals.2 sets of justified The trial court would be in thinking necessary that the time retry sup- and effort the pression continuing motion will not overcome the risk of rever- delay. Moreover, sal added presented evidence does pose credibility require not issues of or subjective intuitive evaluations of a trial court that would otherwise 2The issues, of the and the need for delay, novelty continual reclarifica- hindsight, encouraging tion be our own fault. In while the trial may partly court on remand to exercise its full our instruc- discretionary responsibilities, ought tions not have been as or clear as may have been. comprehensive they In a remand for a reconsideration the trial level.
dictate circumstances, appropriate u> extraordinary we believe it these 2:10-5, R. original necessary jurisdiction, our “as is invoke [it] complete matter on review” —the to the determination [the] Ashby, See State v. 43 discovery. of inevitable issue (1964).
IV.
noted,
relating
court focused on
As
the trial
the evidence
Sugar’s
sale of
house as the asserted basis for
if
of Dr.
discovery. The court concluded that
the sale
inevitable
occurred,
Sugar’s property
would not have
to the Calliaris
This conclusion
victim’s
would not have been discovered.
largely
premise
Sugar’s cooperation
on the
that Dr.
was based
necessary,
assumption
cooperation
and the
such
would
forthcoming. The trial
that Dr.
not have been
court believed
any
given
to sell
property,
make
effort
risk that
discovered.
greater
the victim’s
would then be
conclusion,
reaching this
trial
one
court considered but
possibilities
possibility disregarding other
of inevitable dis-
Moreover,
covery.
predicated
rejection
court
the trial
its
solely upon
strategies
possible
property
sale of the
motives and
imputed
to Dr.
are belied
deeds. The
his actual
cooperative was
determination that Dr.
would not be
Sugar’s
unsupported.
hesitancy
no evidence of
on Dr.
There is
regarding
example,
land.
evidence
part
the sale of his
For
suppression hearing
given at the
shows that he had reduced
price
asking price substantially
to sell the
at the
no
offering.
were
There is
evidence on record that
Calliaris
required
delay pursuant
petition
to the court
would have been
Indeed,
facts
point
other than normal.3
a different
part
delay
legal
3The trial court
its
conclusion
on the fact that
based
mortgage
would have doomed the sale because of the Calliaris'
commitment
However,
not need a
time limitation.
Carl Calliari testified that he did
house,
mortgage
sold his own
which he owned "free
because
would have
*9
ways
strong
Dr.
acted in
that
direction.
showed a
disregard
body’s discovery.
for the risk of the
At least once he
expressly
property;
consented to a
search of his
professed ongoing cooperation
police;
and assistance with the
acquiesced
continuing presence
and he
the
of the
—and
Further,
property.
others—on his
the trial court’s reliance on
possibility
the
Dr.
body,
that
could have removed the
support
its conclusion that
have been
discovered,
States,
error.
Segura
See
v. United
468 U.S.
(1984)(applying
Moreover, express even within the framework of the State’s theory Sugar property would have been sold to a —that party subsidiary third evidence the record establishes —the facts, by preponderance evidence, at least the of the cumulatively support the ultimate determination of inevitable discovery. ground under which the was buried would begin appear conspicuously surrounding soon different from property; anyone it would be obvious to that the site was abnormal, And, arousing suspicion. the Calliaris would have complete property planned dig up had use this Together property. involving likely area of the these facts probability sale of the create at least a reasonable Calliaris, persons as well as other would have had access to land, leading inevitably discovery body. State, particular theory emphasized by Aside from the namely, property by Sugar, the sale and transfer of the support discovery. facts the conclusion of inevitable These professed relate to the defendant’s conduct and his actual or fact, house, and clear.” In when the Calliaris did finally purchase they mortgage used no funds. *10 police strongly cooperation with the and others that attitude of proper- persons have had access to his indicate that other would ty. suppression stipulation, testimony defendant’s at the first
By the record of the hearing incorporated reference into was Sugar suppression hearing. Dr. had testified that from second police, cooperated fully he in the first contact with the his police investigation. daily He contact with the Vineland was being fully cooperative acknowledged that he was with the “ * * * they asked police in efforts to find his wife: once their something, cooperated Sugar provided them.” Dr. me I with relatives, access to police with the names of friends and records, printed in the photograph a of his wife to be financial picture a newspaper and information that a friend had seen newspaper. Sugar resembling his in a local Dr. acknowl- wife leads, provided police anticipa- with edged that when he investigate. they ted 31, 1979, police July Sugar Dr. was aware that By thought possibility there was a that his wife had been murdered possible might property and that he was a be buried on executed a written “consent to suspect. He nevertheless authorizing complete search of his house and search” form grounds. property Sugar present
Dr. was searched. when Thereafter, police he never advised the that he would fact, cooperate. subsequent continue to search, police August 2 or 3 to advise Dr. called the on going to to see his son and them that he would be California leaving phone he could be reached if needed. number at which police, Sugar, request Dr. at the Also on or brought personal items of his wife’s to the station certain psychic. At no time did he indicate that third for use property. persons would not have access to the that of Bar- testimony the trial court was The other before Kushner, Lowenstern, Ambrose, Meyers Joyce Bernice bara Ambrose, Mrs. a former Frederick Taverner. and Detective friend of both defendant and his employee of defendant and a departed wife, spoke defendant before he that she with testified given her that he had and that he told for California gone they if so property while he was permission to search his Lowens’tern, and his a friend of both Joyce desired. wife, Sugar specifically told her that the that Dr. testified Kushner, any time.” Mrs. property to his “had free access wife, that Dr. and his testified a friend of defendant also searched his and that her that the had informed in the event the phone in California he had left his number *11 him. police needed connection, he testified that when
In Detective Taverner this 1979, she told him that Mrs. in interviewed Ambrose proper- given police permission to search Sugar Dr. had the completed. had Dr. the search of been ty even after Bernice Kush- his conversations with Sugar also testified about Ambrose, Lowenstern, Meyers acknowl- ner, Joyce and Barbara them the clear under- conveyed to each of edging that anything possible or the to do standing that he wished may fall short necessary find his While this evidence wife. search, fully it is consist- establishing implied an consent to of Sugar not secure his that Dr. did with the conclusion ent intrusion, property access to his did not restrict property from cooperative the with persons and continued be other police. the circum discovery body of the under all of
The eventual firmly that can based on evidence is a conclusion be stances sense. light ordinary experience and common in of understood loosely unevenly and buried undisputed body that the was It is carefully grave; it not well or buried. in a shallow was Cf. States, 82 L.Ed. 796, 104 468 U.S. Segura v. United (narcotics ceiling). (1984) in the hidden 2d 599 placed in the was was a residence and property house; not in a remote location. backyard close to the it was Moreover, woods). Nix, supra (body deep in the hidden Cf. clearly supports the inference that Dr. had friends record property; such in their access to the who were not restricted property opportunity had persons would have observe Hernandez-Cano, body. including the site of the buried Cf. (inevitable discovery by private person). In addition to supra circumstances, disappearance generated Sugar’s Mrs. had these play, including possibility of suspicion of foul a reasonable murder suspect his wife’s even homicide. misconduct; his actions before subject scrutiny. undoubtedly to be the have continued Cf. (1968) (when McKnight, v. 52 N.J. 56-57 are State area, plain lawfully viewing evidence discovered within a warrant). sum, a search this view can be seized without congeries clearly convincingly establishes the inev- of facts discovery Sugar. of Mrs. itable admissibility of are satisfied that the this evidence will We denigrate the constitutional interests that are not minimize or recognize that the State should not be able to at stake. We v. No- See State advantage violations. take of constitutional vembrino, (1987). 105 It should not be able to secure only by that could have been realized prosecutorial benefit suppression initially required misconduct violation, major In this case the constitutional evidence. eavesdropping, which occurred the dis- impermissible after *12 already through the covery body, of the has been redressed exclusionary rule to the tainted witnesses and application of the supra. II, supra; Sugar I, It need not evidence. See stretched further. be the is not to be rationale of the rule is that] prosecution put [The exclusionary illegality in if no had in a than it would have been transpired. better position the is evidence ensures that contrast, prosecution derivative By analysis in a worse because of some earlier error or simply put position misconduct____ the interest source doctrine teaches us independent having deterring conduct and the interest unlawful police public society putting
juries
crime are
balanced
receive all
evidence of a
properly
probative
would have been in if no
worse, position
in the
not a
same,
they
U.S.
at
[Nix,
433,
or misconduct had occurred.
supra,
error
In this allowing the evidence would not be test results as forensic only It en- violation. from its constitutional State to benefit rule, exclusionary remedial application in the sures that position than it would have been put in a worse is not State no occurred. had violation
Y. Sugar’s grave showings that Mrs. light of the State’s sold Dr. would have conspicuous and soon become showings, Calliaris, subsidiary property to his persons his Sugar gave other including the access police, continuing cooperation with property, property, Sugar and his continuing of Dr. surveillance police’s convincing proven by clear and has conclude that the State we inevitably have been Sugar’s body would Mrs. evidence that conclusion is consistent that this We are confident discovered. without violations police’s constitutional remedying the with no had it would have been off than leaving the State worse occurred. violation above, is remanded the case stated
For the reasons body and the victim’s court, orders to admit with trial *13 166 evidence, for test results as further
derivative forensic opinion. proceedings consistent with this STEIN, JJ., concurring in result. O’HERN admissibility majority opinion sustains the of the dece evidence, concluding that the State “has met dent’s into showing body inevitably its that the victim’s burden reach the have been discovered.” Ante at 156. We do not conclude, discovery issue. We as did the trial court inevitable motion, see disposition suppression of defendant’s in its initial II), (1985) Sugar, (Sugar State v. N.J. 100 214 that the search discovery impliedly that resulted in the of the victim’s Sugar. consented to
I undisputed It is that a consensual search constitutes an exception probable requirements cause and warrant to the the fourth amendment: It is well settled under the Fourth and Fourteenth Amendments that a search se unreason conducted without a warrant issued cause is probable “per upon * * * subject to a few established and well delineated able only specifically It is well settled that one of the established exceptions.” equally specifically of both a warrant and cause is a search exceptions requirements probable v. 412 U.S. Bustamonte,
that is conducted to consent. [Schneckloth pursuant (1973) (citations omitted).] 93 36 L.Ed.2d 858 218, 219, 2041, 2043, Johnson, (1975), v. State N.J. 349 we modified the United holding by adopting SchnecJcloth Supreme States Court’s requirement added under our state constitution that the State may justify a search on the of consent warrantless basis provided knowledge part it on the “demonstrates Id. at 354. person that he had a choice in the matter.” involved qualification, Subject to that a search conducted after a volun- King, v. See State tary clearly consent is valid.
(1965). a consent sufficient to avoid the recognized that
It is well implied necessity may express of a warrant be or from the 489, 504, People Engel, See v. Cal.App.3d circumstances.
167 454, Cal.Rptr. (1980) (“[T]he 164 463 existence of a ‘consent’ ‘scope’ may equally and the of a consent be determined from implications reasonable person’s express derived from a words person’s express and conduct as well as from a words which * * * implied require implications. no An consent to search is express as efficacious and search.”); effective as an consent to State, Steigler 662, v. (Del.1971) (“We 277 A. 2d 667 think that appellant’s actions amounted to implied an consent to the search hardly expect and seizure. One can get search warrant for building a house or when the owner is cooperative obviously gives every appearance being victim, judgment crime.”), perpetrator, rather than the of a grounds, other 939, 2872, vacated on U.S. S. Ct. 33 L.Ed. 408 92 Fredette, (1972); State v. 65, 2d 760 (Me.1979) 411 A.2d 68 (“The carries demonstrating State the burden of by prepon derance of the evidence objective that an manifestation of given consent by gesture word or bearing one an appropriate relationship searched.”) (citations to the McManus, omitted); Thompson v. 769, (8th 512 F. 2d 771 cf. Cir.1975) (aggrieved objective husband’s manifestations of con sent were imply sufficient to consent to a second search of his residence), cert. denied, 1014, 421 U.S. 2421, L.Ed. 44 State, (1975); Lewis v. 705, 717-21, 285 Md. 2d 683 404 A.2d (1979) (“[I]n 1080-81 the instant case we have more than simple acquiescence officer’s claim that it was necessary to search the house. The defendant had indicated a purpose cooperating affirmatively with the and then arrangements made key during for the to obtain a house State, absence.”); Kelly v. 303, 313, 249 N.W.2d 75 Wis.2d (1977) (“In presence the case before us the defendant, implied officers was consent of the only help investigate.”); LaFave, Search & the victim but to W. Seizure: A Treatise on the Fourth Amendment 8.2(1), § (2d 1987) (describing recog ed. cases where consent was “notwithstanding nized person allegedly the fact that the con senting explicitly has never willing stated that he is to allow the * * *
authorities to person, premises search his or effects. implied Sometimes the consent person is from the fact that the question engage has elected to a certain activity- form of basis.”). continuing on a opinion granting
In its defendant’s suppress motion to body, victim’s imposed trial court an extremely restrictive evaluating standard for' whether the search of defendant’s property had been consented to. The court stated that *15 hearing there was no evidence at this to indicate the produced circum- precise gave stances under which defendant established police permission by- Mrs. Kushner and Mrs. Ambrose. The State has Meyers failed to demonstrate
that defendant consented in the manner and to the extent required by Johnson, supra; King, supra. cited. State v. State v. authorities previously give To whom did he such What were the permission? circumstances under * * * he which did so? Was he made aware of the consequences? Hence, the State has failed to “clear and produce necessary evidence” that positive defendant consented to the search. orally Preliminarily, we observe that the standard recently most applied by the trial in determining court whether or not the search of defendant’s was consensual differs from the standard applied by that had been the trial court at the conclu- suppression There, sion of the earlier hearing. the trial court assessed the evidence and determined that there had been an implied search, consent to the a determination that was re- versed because it part relied in on the tainted testimony of Detective majority opinion observes, Mazzeo. As the may it opinion II, well be that in our in Sugar supra, encourag- “while ing the trial court on remand to exercise its full discretionary responsibilities, our may instructions not have been compre- as hensive or they clear ought as to have been.” Ante 159 n. Nevertheless, 2. we do not believe that the holding Court’s Sugar required change II in the standard that determines the implied existence of consent. any event, we are satisfied that the trial court applied has
an incorrect assessing standard for whether the search disagree consensual. We that the State’s burden must be prove precise either the circumstances under which defend- specific individual police or the to the expressed his consent ant express consent was communicat- such to whom or individuals implied express either or may be the consent The fact that ed. thorough requires a attendant circumstances from all testimony whether the record to determine the entire review of that defendant contention support the State’s and exhibits Sixth search.1 impliedly consented incorporated by hearing suppression of the second The record suppression hear- testimony the first defendant’s reference contact with the his first Sugar Dr. testified that ing. his office on they called him at when
occurred nearby car on a found his wife’s they him that had notify voluntarily to the Vineland day he went The next street. report, assisted missing person’s filled out a station and that time he was He testified that after Patrolman Austino. by majori- police. As noted the Vineland daily contact with opinion, Dr. admitted ty “ * * * being to find his wife: in their efforts with fully cooperative something, Dr. with them.” provided me I once asked cooperated they records, to financial relatives, friends and access with the names of the police information that a photograph in the his wife to be newspaper, printed resembling in a local his wife newspaper. had seen a friend picture acknowledged with he leads, anticipated the police that when provided *16 [Ante investigate. at 162.] would they affinity for his wife’s because of Sugar also testified that Dr. purportedly trip City, Atlantic casinos, one to he made at least her. to locate Mazzeo with Detective that he conferred
Defendant testified 31, 1979, July headquarters on police Tirelli and Lieutenant property. house and search his police if the could and was asked possible a that he was acknowledged his awareness Sugar Dr. that possibility thought there was police that the suspect and majority’s remand is that a further conclusion 1We are in accord with original to R. our 2:10-5 we should invoke that pursuant inappropriate, of the victim's jurisdiction body. into evidence determine the admissibility to Ante at 159-160. might property. Nevertheless, be buried on his his wife he to authorizing written “consent search” form executed a Department City complete of Vineland Police “to conduct the my grounds house search of located at 391 West Walnut Street, Vineland, Jersey.” New The recited consent form that right Sugar stop Dr. had the to refuse consent or to search any time. Defendant that testified he read form and understood it “as best as I could at the time.” July
The initial search Thirty-first occurred on and lasted for Sugar several hours. Dr. testified that never he was asked to consent to additional of his property. an search He said that search, July Thirty-first police after the he did not want on point and that “there was a in time when I didn’t they feel that should—I did feel comfortable for some my property.” However, reason to them come have on he acknowledged convey change he did not attitude to anyone. any way police When asked if there was that “the anything Harry Sugar cooper- would know more than to wants wife,” everything ate and wants us to do we can find his to he responded, “I don’t know.” Thirty-first search,
Subsequent to the Dr. called August police or on Second Third to them that advise he going to phone be California see his son. He left a number at which he could reached if be needed. Also on Third, or Second Dr. was asked the Vineland police bring personal certain items of his to the wife’s psychic. psychic station for use The towas assist the Sugar. in their efforts to Mrs. locate testified skeptical psychic cooperated that he about but that by taking requested the items station so that the continue for could to search the whereabouts of his missing wife. opinion majority summarizes balance testimo-
ny pertinent before the trial court issue consent:
171 of the trial was that Barbara other before court Meyers testimony Detective Frederick Taver- Bernice and Lowenstern, Kushner, Ambrose, Joyce and a of defendant friend both ner. Mrs. a former Ambrose, employee he his that she with defendant before and testified wife, spoke defendant given that he her that he had for California and told police departed gone if so to search his while he was desired. they Joyce property permission Sugar Sugar Dr. and his testified that Dr. Lowenstern, wife, friend of both “had access to his told her that free any police property specifically his that Dr. wife, Mrs. also a friend of defendant and testified time.” Kushner, had searched his and that he had informed her that property in in the event needed him. left his number California phone Taverner testified that when interviewed In this Detective connection, given August told Dr. had 1979, Ambrose in she him that Mrs. even after the search 31 had been search permission also testified about his conversations with Bernice completed. acknowledging and Barbara Lowenstern, Ambrose, Kushner, Meyers Joyce understanding the clear that he to each of them wished the police he conveyed wife. [Ante anything to find his 163.] do or possible necessary court, Meyers noting testimony of Barbara The trial Ambrose, specifically observed that vague regarding inconsistent the exact true that her it is testimony told her he left for California. Neverthe- and time when defendant before date make a statement before he left for it is clear defendant did such
less, Lowenstern Mrs. Kushner but also to Mrs. to Mrs. California, only Ambrose. Meyers note search on Sixth involved We also that the yard rear picnic area table in the of defend only the near the home occurred on that entry house. No of defendant’s ant’s entry “physical noted of the home It has often been date. wording of fourth against which the is the chief evil Dis v. United States directed.” United States is amendment 2134, Court, 313, 2125, 297, S.Ct. 407 92 32 L.Ed.2d trict U.S. Bruzzese, 210, (1972); also State v. 752, see stringent (1983) applied a more (“Historically, the Court has of a amendment to searches residential standard of fourth 1295, 79 L.Ed. denied, 1030, 104 dwelling.”), cert. 465 U.S. S.Ct. Supreme (1984). Although the Court United States 2d 695 States, 104 80 L.Ed. v. United U.S. Oliver (1984), privacy that there was no fourth held amendment 2d 214 fields, “curtilage,” open that the interest the Court observed home, is immediately surrounding entitled the land *18 172 protections
fourth amendment that attach Id. at to home. 180, 1742, 1735, 214, S.Ct. 104 80 L.Ed.2d 225. The degree Court Oliver in declined to elaborate on of “the Fourth protection opposed curtilage, afforded the as Amendment 11, 104 11, id. at 180 n. S.Ct. 1742 n. itself,” 80 L.Ed.2d home Nevertheless, recognized 225 n. 11. it has been that there is a privacy curtilage in lesser interest than in the interior of a Keyes City Albany, F.Supp. residence. See v. 1147, 594 of Ciraolo, (N.D.N.Y.1984); v. U.S. 1153-54 California cf. 210, 207, ___, (1986) 106 L.Ed.2d (“That curtilage the area is within the not itself does bar all observation.”). police not, privacy Whether lesser interest or Sugar’s under these circumstances the renewed search of Dr. yard clearly continuing duty was consistent with the police apparently missing person Sugar. to locate of Joan surrounding circumstances, the context of all of the we police are convinced that the Vineland acted reasonably officers concluding in impliedly defendant had consented to a by July 31, 1979, second backyard. Concededly, search his suspect by defendant was a and had been advised so However, police. yet Vineland had there as been uncovered no evidence of defendant’s involvement wife’s disappear- his cooperation ance. investigative with the efforts of the police that defendant had manifested the time from of his wife’s disappearance had continued Significantly, unabated. Miranda warnings expression when confronted with an police possible suspect, was a expressly defendant consented a search to of his house and on Thirty-first, cooperate and continued to communicate and with police departure until his for His delivery California. personal belonging articles his wife psychic to for use cooperation knowledge further evidenced his and his that the continuing were to for search his wife. The Vineland the ambiguous were confronted with possible suspect conduct of a who maintained his innocence and soliciting police investigate to and solve persisted efforts sus- disappearance. or not the officers Whether wife’s ruse, cooperative defendant's demeanor was pected that pursue investigation responsibility officers’ responsibility disappearance of wife. This into the defendant’s property August on them to return to defendant’s Sixth led table, leading picnic reexamine the fresh dirt under *19 grave. If in wife buried in a shallow discovery of defendant’s ap- police the defendant’s manifestations of fact misconstrued believing property return to his parent cooperation, that their authorized, it to be be anomalous to allow defendant was beneficiary ambiguous his v. the óf behavior. State Cf. (1968): McKnight, 52 N.J. * * * guilt unwittingly to to it is no more unfair who reveals his [A]s culprit against than it to turn him the clues use the evidence reveals is thereby brighter, gifted or more informed,
the scene of the crime which a better left. criminal would have oc- all and circumstances that had Based on of the events Sugar’s disappearance early in since Mrs. curred —includ- missing persons his filing report, of a unabated ing defendant’s person- local cooperation police, with the his communication and trip to (including at least one efforts to locate his wife al her), voluntary City to his authorization Atlantic search for grounds, delivery his of a search of house and permitting relatives, records, of friends and photographs, financial names working requested by psychic the Vineland as with clothes concluding police in find that the were warranted police—we August on Sixth was property return defendant’s that their to require and did not a search impliedly authorized defendant in Supreme of Delaware observed As the Court warrant. State, Steigler supra, v. assisting in every of earnestness view [i]n appellant’s apparent a warrant is understandable. their failure obtain search
way, and, for human habitation as appellant the house was not fit time, that At making careful search of it and were knew, very were possession light anything might of the that shed on identity culprit. Obviously, for officers. time with the At these appellant appeared fully cooperative had no which officers facts to base a definite belief or of the upon suspicion We think that amounted to an consent appellant’s actions appellant. implied get and seizure. One can search search expect hardly building warrant for a house or when the is owner cooperative obviously gives being rather than the of a every appearance victim, perpetrator, 2d 667.] crime. A. [277 Accordingly, we conclude that since search of defendant’s 6, 1979, yard on impliedly was consented to defend- ant, the victim’s and the derivative forensic test results into emphasize should be admitted We evidence. our conclusion that the second search of defendant’s impliedly uniqüe is based authorized on the circumstances of particularly this case on the defendant’s unabated and unqualified cooperation with efforts to his wife. find requirement
The constitutional probable cause that is the linchpin protection against fourth amendment’s unrea- searches, Novembrino, (1987), sonable see State v. directly implicated is not when a search is found to be consensu- consent, exception al. The issue of an to the constitutional factual, *20 requirement, basically is to be determined in con- all view, text of the relevant circumstances. our the admissi- bility of this compromise evidence does not the constitutional principles govern searches. nonconsensual although
Accordingly, judgment we concur Court, ground we do so on impliedly that defendant had consented to the search on 1979. STEIN, JJ., concurring O’HERN and in the result. For remandment —Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN —7.
Opposed —None.