State v. Bruzzese

POLLOCK, J.,

dissenting.

Succinctly stated, the issue in this case is whether the use of an arrest warrant as a pretext to search someone’s home is reasonable under the New Jersey and United States Constitutions. See U.S. Const, amend. IV; N.J. Const, art. I, par. 7 (1947). The majority finds to be irrelevant the fact that the arrest warrant was used as a pretext. I respectfully disagree. The disagreement begins with a different perception of the facts.

I

At 10:30 a.m. on November 14, 1980, Joseph Bruzzese was asleep in his bedroom on the second floor of his home at 563 Westfield Avenue, Roselle Park. His aunt, Mrs. Schuha, who had raised him from infancy, was downstairs. The front doorbell rang, and when she opened the front door, she was confronted by Detective Hicks of the Cranford Police Department and Officer Mayer of the Roselle Police Department. Two more police officers, one from each department, were at the back door.

Without telling Mrs. Schuha of the reasons for their visit, Detective Hicks asked “to speak to Joe.” While she went upstairs to defendant’s bedroom, the officers remained downstairs in the living room.

*245 To justify the appearance of four police officers at the defendant’s home, Detective Hicks volunteered on direct examination that the defendant had a history of violence. Because that assertion was unsubstantiated, the trial court immediately sustained a defense objection, and the State made no effort to substantiate the testimony. Consequently, at the conclusion of the suppression hearing, the trial court found that the police were not concerned either that the defendant would escape or that their personal safety was at risk.

The State asserts that the officers descended upon the defendant’s home to serve an arrest warrant for failure to appear in municipal court in response to a summons for a minor offense, apparently a traffic violation. 1 That assertion is belied by several facts. Detective Hicks conceded that he did not ordinarily serve contempt warrants and that it would have been routine practice to call the defendant and tell him to come to police headquarters.

The actual reason for the appearance of the four police officers at defendant’s home was that he was a suspect in a burglary that had occurred on November 12, 1980 at his former place of employment, Madan Plastics, Inc. Someone had kicked in a door and taken some tools; the perpetrator had left a diamond bootprint on the door panel. Detective Hicks stated that he wanted to talk to defendant “about the burglary and the fact that he was a suspect.” The detective stated further that “in the back of my mind” was a desire to find out if defendant’s bootprint matched the one on the door panel.

According to the police, the defendant had told friends, “he was going to get even with the people at Madan Plastics for firing him.” Although suspicious, Detective Hicks did not apply *246 for a search warrant for defendant’s home. Instead, he searched the records at the Cranford Police Department and discovered the outstanding warrant for defendant’s failure to appear in municipal court. 2

With respect to the service of the contempt warrant, Detective Hicks testified:

Q And that was the easiest way to gain access to his house; right?

A (No response.)

Q Right?

A It was the easiest way for us to pick him up and talk to him, yes.

When the defendant came downstairs, Detective Hicks informed him that the police officers were there “to pick him up on the (contempt) warrant.” The officer advised him further that he would need $50 for bail. The defendant, who was barefoot and dressed only in a tee-shirt and slacks, told the police officers he would get dressed and accompany them to headquarters with the bail money. He asked the officers to wait downstairs, but Detective Hicks and Officer Mayer followed him upstairs to his bedroom. While the defendant was dressing, the detective poked around the bedroom, even looking under the bed and behind the TV.

Finally, the detective spotted a pair of boots under the dresser. He picked them up, turned them over and saw what appeared to be a print that matched the one on the back door of Madan Plastics. Although the detective seized the boots, he did not tell the defendant the reason for their confiscation until they interrogated him at police headquarters.

*247 II

On these facts, the majority finds valid as incident to a lawful arrest the search of a home and seizure of personal belongings. Unimportant to the majority are the facts that the officers never disclosed the investigative purpose for which they entered the defendant’s home and that the police do not routinely serve contempt warrants. In addition, the majority finds to be irrelevant the service of the warrant as a pretext for gaining access to the defendant’s home and his personal belongings.

I recognize that a search incident to a lawful arrest justifies a protective search of the person arrested and of the area within his immediate control. Chimel v. California, 395 U.S. 752, 763 , 89 S.Ct. 2034, 2040 , 23 L.Ed.2d 685 (1969). The limits of the “search incident to arrest” exception have been described:

There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less. [Id.].

In sustaining the search, the majority purports to adopt an “objective” analysis, the purpose of which is to avoid probing the psyche of the police when they make warrantless searches. Although an “objective” test has much to recommend it in many cases, like other rules of law, it has its own limits. In a case such as this, in which an arrest warrant is used as a pretext, the “objective” test can become an instrument of injustice. One need not engage in a debate on the relative merits of the “objective” or “subjective” approach, however, to form an opinion on the reasonableness of this search.

Furthermore, one need not necessarily probe an officer’s state of mind to conclude that a search has been conducted for an improper purpose. In this case, for example, the police admitted that one purpose of the arrest was to gain access to defendant’s home. By relying on the police officers’ alleged fear for their safety, the majority ironically resorts to the officers’ state of *248 mind to justify the conclusion that the search was reasonable. As indicated, however, the trial court rejected the testimony that the defendant had a history of violence.

In addition, the majority recognizes the difficulty of restricting a determination of reasonableness to “objective” facts and carves out an exception for the invasion of “the privacy of citizens as a means of racist or political harassment.” Ante at 226. I join in condemning the use of an otherwise objectively valid search for such a purpose. Persecution of minorities, however, is not the only example of a warrantless search used for an invalid purpose. The present case provides another illustration.

Here, the majority relies on Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and Scott v. United States, 436 U.S. 128 , 98 S.Ct. 1717 , 56 L.Ed.2d 168 (1978). Ante at 219-220. Terry holds, however, that the good faith of an officer is not sufficient to justify a stop and frisk. In Scott , without looking into the state of mind of the officers who had intercepted telephone calls, the Court found wiretaps to be reasonable despite the government’s lack of effort to minimize the intrusion. This ruling is of doubtful applicability to an arrest warrant used as a pretext for the physical invasion of a home and the seizure of personal belongings. See Burkoff, “Bad Faith Searches,” 57 N.Y.U.L.Rev. 70 (1982); 1 LaFave, Search and Seizure § 1.2 (Supp.1983 at 14-16). Since Terry and Scott , moreover, the United States Supreme Court has repeated its warning that an arrest warrant may not be used as a pretext for searching a home. See Steagald v. United States, 451 U.S. 204, 215 , 101 S.Ct. 1642, 1649 , 68 L.Ed.2d 38 (1981).

Also distinguishable is Washington v. Chrisman, 455 U.S. 1 , 102 S.Ct. 812 , 70 L.Ed.2d 778 (1982), in which the Court allowed the seizure of marijuana seeds from a college student’s dormitory room. In that case, having arrested the student for carrying a bottle of gin on campus, the officer waited in the doorway of the student’s room while the student searched for his identifica *249 tion. The officer had the right to remain at the student’s elbow, id. at 6 , 102 S.Ct. at 816 , but he did not enter the student’s room until he noticed marijuana seeds and a pipe. The seized evidence was in plain view and the arrest was not a device for gaining entry into the student’s room. By contrast, in the present case the police used the contempt warrant as a pretext to accompany the defendant, search his bedroom, and seize his boots. Furthermore, the boots were not visible to the police until the search, and the soles were not apparent until after the seizure.

In United States v. Villamonte-Marquez,- U.S.-, 103 S.Ct. 2573 , 77 L.Ed.2d 22 (1983), the Court held valid the seizure by custom officers of marijuana from a boat anchored in a ship channel. Pursuant to statutory authorization, the officers had boarded the vessel to examine the ship’s papers. The Court, in sustaining the search, relied heavily on the vessel’s ability to head for the open seas, an ability not shared by the defendant’s home.

The majority bases its decision on both the Fourth Amendment of the United States Constitution and Article I, para. 7 of the New Jersey Constitution. In doing so, the majority recognizes “that this Court has the power to afford citizens of this State greater protection against unreasonable searches and seizures than may be required by the [United States] Supreme Court’s prevailing interpretation of the Fourth Amendment.” Ante at 216, n. 3 (citations omitted). The Court may find, as here, that an individual has no greater protection against government intrusion under the State Constitution than it concludes is afforded under the United States Constitution. The majority may not, however, deprive an individual of protection afforded by the United States Constitution. Hence, the majority’s recital that it relies on federal cases only “for the purpose of guidance” need not preclude federal courts from concluding that the subject search and seizure transgresses the protection afforded an individual by the Fourth Amendment.

*250 III

Particularly troublesome is the approval by the majority of the invasion of a home, a place that is at the core of the United States and New Jersey Constitutions. A warrantless search and seizure inside a home is presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 , 100 S.Ct. 1371,1380 , 63 L.Ed.2d 639 (1980); see Coolidge v. New Hampshire, 403 U.S. 443, 455 , 91 S.Ct. 2022, 2032 , 29 L.Ed.2d 564 (1971). The burden upon police officers to justify a warrantless search is heaviest when they seek to enter a suspect’s residence. State v. Ercolano, 79 N.J. 25, 62 (Schreiber, J., dissenting).

An arrest warrant, particularly one for an unrelated minor offense, is not a substitute for a search warrant. The different functions of the two warrants have been described:

An arrest warrant is issued by a magistrate upon a showing that probable cause exists to believe that the subject of the warrant has committed an offense and thus the warrant primarily serves to protect an individual from an unreasonable seizure. A search warrant, in contrast, is issued upon a showing of probable cause to believe that the legitimate object of a search is located in a particular place, and therefore safeguards an individual’s interest in the privacy of his home and possessions against the unjustified intrusion of the police. [Steagald v. United States; supra, 451 U.S. at 213 , 101 S.Ct. at 1648 .]

A search warrant is not a mere formality; it is the only judicial checkpoint between the police station and the home. One crucial purpose of the warrant requirement is to require that the propriety of a search be evaluated by a neutral judicial officer, not a law enforcement officer, before the search occurs. Johnson v. U.S., 333 U.S. 10,13-14 , 68 S.Ct. 367, 368-69 , 92 L.Ed. 436 (1948).

In evaluating the conduct of the police in this case, the trial court stated: “.. . their entire conduct in entering this house, if limited to what they were there for, which was the contempt, would have and should have begun and ended with the defendant going upstairs, coming downstairs and going with them.” Accordingly, the trial judge suppressed the boots as evidence.

In affirming, the Appellate Division stated:

*251 We read the present record, and the conclusions of the trial judge, to establish that the seizure here was just such a ‘planned warrantless seizure.’ The police used a most anomalous procedure to effect an arrest in an adjoining town on a minor charge; an expressed reason for executing the contempt warrant by arrest was that defendant was a suspect in an entirely unrelated burglary and that ‘we wanted to talk to him’; the officer ‘had in the back of my mind’ that he might find the footgear to match the only physical evidence he had from that burglary; at the time of the arrest there was no suggestion that defendant was angry or exercised, likely to become violent or to escape, and the police, without advising defendant of their plan to ‘talk to him’ concerning the burglary, followed him without invitation into his own bedroom where they made the hoped-for ‘plain view’ observation. Those facts fully support the finding of the trial judge that the arrest and seizure went well beyond what could reasonably be attributed to an intent to arrest defendant on a contempt warrant; in these circumstances the conduct of the police in arresting defendant and remaining at his elbow must realistically be seen as a pretext to obtain a view of the interior of his house and, as it fortuitously worked out, to make a ‘plain view’ seizure. This kind of improper police procedure was specifically envisioned in ‘The Supreme Court, 1970 Term,’ 85 Harv.L.Rev. 3 (1971):

... where the police have probable cause to arrest, their best strategy is to defer arrest until the suspect is at home so that they have a chance of discovering evidence in plain view which they would not have had if they made their arrest elsewhere. This use of the arrest power for the ulterior purpose of gaining access to a person’s house amounts to a planned warrant-less search and seems at the heart of Justice Stewart’s concern. [Id. at 245] [ 187 N.J.Super. 435, 441-42 (1982)].

The Appellate Division opinion continues by noting

that the intent of police officers may be determinative of the validity of their arrests and seizures and that the ‘true facts’ must prevail over the ‘objective facts.’ See State v. Ercolano, supra, 79 N.J. at 39 .

In Ercolano the court held invalid what was claimed by the police to be an inventory search of an automobile. Judge Conford, speaking for the court, noted (at 38) that ‘[t]he intent and purpose of the police in conducting a search has frequently been held material to the validity thereof.’ He recited with approval the holding of Jones v. United States, 357 U.S. 493, 500 , 78 S.Ct. 1253, 1257 , 2 L.Ed.2d 1514 (1958), that although government agents could lawfully have entered a house with intent to arrest a defendant and thereby legally seize illicit equipment in plain view, nevertheless the seizure there was invalid because the court found ‘their purpose in entering was to search for distilling equipment and not to arrest petitioner’; therefore, Judge Conford recounted, ‘[t]he actual intent of the officers was regarded as fatal to the search as a matter of law.’ 79 N.J. at 39 . Based upon that and other authorities, Judge Conford found that ‘the principle that the intent and purpose of the searching officers may be material, indeed crucial, to the validity of the search, is fully applicable here.’ Ibid.

*252 Similarly, in State v. Slockbower, supra, our Supreme Court found, as one ground for ‘condemning’ what was sought to be justified as an inventory search upon impoundment of an automobile, that ‘the purported impoundment was pretextual’ and therefore that there was not ‘substantial necessity’ for the impoundment. 79 N.J. at 13 . And in State v. Seiss, supra, the conclusion that there was no ‘substantial necessity’ to enter defendant’s house was based, as already recited, upon the court’s finding that ‘it appears the police invaded defendant’s home merely for the purpose of conducting an exploratory search.’ 168 N.J.Super. at 274-276. These cases are but exemplars of the broadly accepted view that ‘bad faith’ searches or seizures are unconstitutional even though they may appear to be objectively constitutional. See, generally, Burkoff, ‘Bad Faith Searches’, 57 N.Y.U.L.Rev. 70 (1982); Amsterdam, ‘Perspectives on the Fourth Amendment,’ 58 Minn.L.Rev. 349 (1974).

II

Our finding of the invalidity of the alleged ‘plain view’ seizure is equally dispositive of the State’s alternate contention that the seizure here was the product of a search incident to arrest. Not only did the officers testify that they did not conduct a search at all, but a search conducted upon the pretextual arrest would also be invalid under the authorities already cited. See, generally, Burkoff, ‘Bad Faith Searches,’ supra.

I agree. Not only does the majority reverse the lower courts in this case, but, in effect, it overrules two recent decisions of this Court, State v. Slockbower, 79 N.J. 1 (1979), and State v. Ercolano, 79 N.J. 25 (1979), and the decision of the Appellate Division in State v. Seiss, 168 N.J.Super. 269 (App.Div.1979).

A planned warrantless search and seizure is distinctly different from those situations where an officer must act on the spur of the moment. The solitary patrolman who stops and searches a suspicious vehicle bears little resemblance to a detective rummaging through records at police headquarters. Equally dissimilar is the policeman who apprehends the perpetrator in the commission of a crime. Here, the arrest warrant was sought, served, and used as a means of gaining access to the defendant’s home and personal belongings. That is, a municipal court contempt warrant was used improperly as a substitute for a search warrant in the investigation of an unrelated burglary. The majority decision converts an arrest warrant for any offense, no matter how minor or unrelated, into a skeleton key for every suspect’s home.

*253 Like the majority, I accept the trial court’s characterization that it was “a debatable question” whether the police had probable cause to search the defendant’s home. The absence of probable cause does not, in my opinion, justify automatic recourse to an arrest warrant to make a pretextual search. On the other hand, if the police had probable cause, they also had time to obtain a search warrant. Here, the officers resorted to the arrest warrant because it was the “easiest way” to talk to the defendant and gain access to his home. Although I share the majority’s concern about “the pervasiveness of dangerous criminal activity in our state today,” ante at 232, the invalidation of this pretextual search would not impair efficient law enforcement, but it would preserve a paramount constitutional right.

I would affirm the judgment of the Appellate Division.

CLIFFORD and HANDLER, JJ., concurring in the result.

For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER, O’HERN and GARIBALDI — 6.

For affirmance —Justice POLLOCK — 1.

Detective Hicks testified on cross-examination:

Q. Was it for not showing up for a traffic ticket or for what? Do you know?

A. I really don’t know. I have a copy here. / believe that's what it was. It was contempt, failure to appear (emphasis added).

Detective Hicks testified:

Q. Want [sic] occurred on this date with regard to the defendant?

********

A. I had done some checking on the defendant to check on his past history. In doing so, I found that there was an active warrant in Cranford for contempt of court. I contacted Roselle Park Police Department, and I told them I’d like to go to his residence on North Avenue — or, Westfield Avenue, Roselle Park, and pick the defendant up on the warrant itself.