State v. Alston

SCHREIBER, J.,

concurring.

The majority has unnecessarily interpreted New Jersey’s constitutional search and seizure provision so that it serves “to afford a windfall to defendants whose Fourth Amendment rights have not been violated.” United States v. Salvucci, 448 *236 U.S. 83, 95 , 100 S.Ct. 2547, 2554 , 65 L.Ed.2d 619, 630 (1980). 1 The finding in this case that there was probable cause for the search obviated any need to create this windfall and part company with the Supreme Court, since, irrespective of defendants’ rights to raise the issue of the propriety of the search and seizure, the majority concludes that defendants’ suppression motions should have been denied. Indeed, to accomplish its result, the majority has nullified its holding made about a year ago that standing depends upon “a legitimate expectation of privacy in the property or premises involved.” State v. Williams, 84 N.J. 217 (1980). Moreover, no sound reason has been advanced why the New Jersey constitutional provision that has been copied verbatim from the Fourth Amendment should be interpreted differently from its parental counterpart. 2

It has been well-settled that generally a person may not assert constitutional rights belonging to others. The Supreme Court has frequently articulated the rule that “[ojrdinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.” Barrows v. Jackson, 346 U.S. 249, 255 , 73 S.Ct. 1031, 1034 , 97 L.Ed. 1586, 1594 (1953). This principle would ordinarily be applicable to the constitutional search and seizure provision, whose core is a person’s right to privacy. Professor LaFave asserts the rule in this fashion:

The fundamental inquiry regarding standing is that articulated in Mancusi [v. DeForte, 392 U.S. 364 , 88 S.Ct. 2120 , 20 L.Ed.2d 1154 (1968)]: whether the conduct which the defendant wants to put in issue involved an intrusion into his reasonable expectation of privacy. [3 LaFave, Search and Seizure, § 11.3 at 544 (1978)]

Alderman v. United States, 394 U.S. 165, 174 , 89 S.Ct. 961, 967 , 22 L.Ed.2d 176, 187 (1969); Brown v. United States, 411 U.S. 223, 230 , 93 S.Ct. 1565, 1570 , 36 L.Ed.2d 208, 214 (1973); Sim *237 mons v. United States, 390 U.S. 377, 389 , 88 S.Ct. 967, 973 , 19 L.Ed.2d 1247, 1256 (1968).

An exception to the general rule developed in the search and seizure field because of the implications of a defendant’s Fifth Amendment right against self-incrimination. A defendant charged with the crime of possessing some contraband would have to assert possession to prevail on a claim that the search and seizure were unlawful. The defendant would in effect be compelled to incriminate himself if he sought to invoke the right of privacy under the Fourth Amendment. Under those circumstances, the Supreme Court held that “standing” automatically existed when a possessory crime was charged with respect to the seized property. Jones v. United States, 362 U.S. 257, 263 , 80 S.Ct. 725, 732 , 4 L.Ed.2d 697, 703 (1960).

The reason for the exception was later eliminated when it was held that the defendant’s testimony on the motion to suppress was inadmissible at the subsequent trial. Simmons v. United States, supra. The defendant could then testify without endangering his Fifth Amendment protection against self-incrimination. Accordingly, the mere assertion of some possessory interest in the object seized does not support or justify a defendant’s claim that a search and seizure were unlawful. See United States v. Salvucci, supra, 448 U.S. at 87-89 , 100 S.Ct. at 2550-51 , 65 L.Ed.2d at 625-26 . The majority adheres to the outmoded possessory exception despite the fact that suppression hearing procedures make the exception unnecessary to protect the defendant. Because of the majority’s thesis, I should predict that almost every defendant will question every search of property whenever charged with a possessory offense involving that property. At trial the defendant then will take the opposite position, denying his interest in the property. .

The majority also rejects the geographical aspect of privacy for it would extend the zone of privacy into locations where privacy does not legitimately exist. It seems to abhor the thought that a defendant who is the owner of the seized *238 property cannot assert a Fourth Amendment violation where there is no expectation of privacy. Yet is this not a reasonable proposition? For example, if contraband is left in a public place, the owner cannot reasonably claim an expectation of privacy. So, too, if contraband is placed in an automobile, as in this case, an expectation of privacy must be substantially reduced. A person cannot reasonably contemplate that property kept in his automobile will have the same privacy as in a home. This proposition is self-evident. The motor vehicle is present on public streets, in public parking places, in public garages and in service stations; it is subject to extensive governmental regulation and inspection. The circumstance of where a search is made may have a direct bearing on its reasonableness.'

No sound policy reasons have been advanced to demonstrate why New Jersey should not follow the lead of the Supreme Court in its interpretation of the Fourth Amendment. The New Jersey search and seizure clause first appeared in the Constitution of 1844, Art. I, par. 6, tracing the language of the Fourth Amendment. The framers’ intent was to mirror the provision embodied in the federal constitution that centered on the desire to protect a zone of privacy. This concept of privacy is not some uncertain principle to be thrust aside as too “vague”, ante at 226. Its vitality has been enriched and enhanced by reference to several provisions in the federal constitution. Griswold v. Connecticut, 381 U.S. 479, 484 , 85 S.Ct. 1678, 1691 , 14 L.Ed.2d 510, 514-15 (1965). It is a standard that has been accepted by Justices Marshall and Brennan whose dissent and reasoning in Rawlings v. Kentucky, 448 U.S. 98 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980), is embraced today by the majority. Cf. Katz v. United States, 389 U.S. 347, 352 , 88 S.Ct. 507, 511 , 19 L.Ed.2d 576, 582 (eavesdropping with an electronic listening device affixed to public telephone booth held violative of Fourth Amendment since "individual “is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world”). The right of privacy and a reasonable expectation of *239 that right serve as “bright” guidelines of the Fourth Amendment. 3

The focus of the exclusionary rule is deterrence of police misconduct. This judicial sanction is hinged not only upon whether there has been a Fourth Amendment violation, but on whether the police activity has been so egregious as to warrant suppressing evidence and in many cases freeing the guilty. In resolving questions of this nature, we must consider the individual’s right to live free from criminal attack in his house, at his work and on the streets. State v. Davis, 50 N.J. 16 (1967), cert. den. 389 U.S. 1054 , 88 S.Ct. 805 , 19 L.Ed.2d 852 (1968). Chief Justice Weintraub aptly observed that this “primary individual right demands that government be equal to the reason for its being — the protection of the individual citizen.... ” State v. Boykins, 50 N.J. 73, 81 (1967). A court should keep in mind that the police have a preventive role as well as the duty to deal with crimes already committed. State v. Dilley, 49 N.J. 460 (1967). The majority has ignored these interests in rejecting the Supreme Court’s analysis of the Fourth Amendment, thereby imposing “substantial burdens on law enforcement without vindicating any significant values of privacy.” Robbins v. California, 453 U.S. 420 , 101 S.Ct. 2841 , 69 L.Ed.2d 744 (1981) (Powell, J., concurring).

The bottom line of the majority’s holding will be to suppress material, competent and credible evidence, even though a reasonable expectation of privacy does not exist, thereby inhibiting the jury’s truth-seeking process and enabling the guilty to go free. See United States v. Ceccolini, 435 U.S. 268, 275 , 98 S.Ct. 1054, 1059 , 55 L.Ed.2d 268, 276 (1978); State v. Ingenito, 87 N.J. *240 204, 211 (1981) (holding that it is “important that the evidence be as full and complete as possible in order to aid the search for truth and assure the just and correct result”).

Lastly, the majority misperceives the tests to be applied in determining the existence of an expectation of privacy. Substantively it was necessary for the defendants to show that they had a reasonable expectation of privacy with respect to the loaded revolvers after they left the car. See Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978) 4 (holding under similar circumstances that defendants made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they had been passengers). Whether there is a reasonable expectation of privacy calls for an objective evaluation. Have the search and seizure infringed upon an interest of the defendant that the Fourth Amendment was designed to protect? Would it be reasonable under the circumstances to contemplate privacy? If not, there can be no Fourth Amendment violation. This analysis is to be distinguished from a subjective probe of the defendant’s belief. See Katz v. United States, 389 U.S. at 361 , 88 S.Ct. at 516, 19 L.Ed.2d at 588 (Harlan, J., concurring). 5 Did he contemplate that the property would not be seen or discovered? The defendant must satisfy both the objective and subjective criteria of the expectation of privacy.

The facts in this case are illustrative. The vehicle driven by Alston , was pursued and stopped by the police for speeding. When Alston opened the glove compartment in search of his *241 vehicular documents, some shotgun shells were exposed. When it was discovered that Alston’s driver’s license had been revoked, the police ordered the four occupants to get out of the car. They were patted down. The shells and the sawed-off shotgun that was partially in plain view were retrieved. The four defendants were placed under arrest and then the search revealed the two loaded revolvers. The defendants do not question the constitutionality of stopping the vehicle or directing them to get out. They offered no evidence demonstrating that they had any privacy rights in the loaded revolvers by virtue of location or possession. Thus there was no showing either from an objective or subjective viewpoint of an expectation of privacy-

Since the majority holds that there was probable cause for the search and seizure, I join in the judgment that the evidence, the two loaded revolvers, was improperly suppressed. However, I cannot in good conscience agree with its impairment of the ethics of responsibility.

SCHREIBER, J., concurring in the result.

For reversal and remandment — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 7.

For affirmance — None.

This court has never held, as it now does, that the assertion of any proprietary, possessory or participatory interest in either the place searched or property seized is sufficient to invoke the Fourth Amendment.

This is not a situation of adhering to the plain language of the State Constitution. See State v. Johnson, 68 N.J. 349, 353 (1975).

The majority fails to explain how the test of “a proprietary, possessory or participatory interest”, ante at 228, is a less “vague” or “amorphous” standard. The key to the problem is the expectation of privacy. The proper frame of reference therefore must commence and end with the individual’s reasonable expectation with respect to the concealment or confidentiality of the property.

In State v. Williams, this Court expressly adopted and approved the reasoning of Rakas v. Illinois and held that the “test is whether a defendant had a legitimate expectation of privacy in the property or premises involved.” 84 N.J. at 222 .

Moreover, standing under state law involves a subjective test since “the litigant’s concern with the subject matter evidence[s] a sufficient stake and real adverseness.” Crescent Park Tenants Ass’n v. Realty Equities Corp., 58 N.J. 98, 107 (1971).