Opposition — Epp v. New Jersey

No. 79-1861 — AUG4 1980

IN THE

Supreme Court of the United States

Octoser Term, 1979

ROBERT W. EPP and RAY B. FOSTER,

Petitioners,

Vs.

STATE OF NEW JERSEY,

Respondent.

On Petition for Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

BRIEF IN OPPOSITION

JoHN J. DEGNAN,

Attorney General of New Jersey,

Attorney for Plaintiff-Respondent,

State of New Jersey,

State House Annex,

Trenton, New Jersey 08625.

Joun DeCicco,

Assistant Attorney General,

Division of Criminal Justice,

Of Counsel.

Tomas A. Penn,

Deputy Attorney General,

Division of Criminal Justice,

On the Brief.

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

PAGE

Opinions BELow 1

STATUTES AND Rutes INVOLVED 2

STATEMENT OF THE CASE ; 4

Reasons ror DenyinG CERTIORARI:

Point I—The facts of record did not permit the

formulation of the question stated by petition-

ers 7

Point IJ—The instant petition does not present

a substantial question for resolution since

prior decisions of this Court clearly indicate

that Arkansas v. Sanders, supra, and United

States v. Chadwick, supra, have no retroac-

tive application to the instant matter .............. 13

CoNCLUSION ......--- ma 22

Cases Cited

Almeida-Sanchez v. United States, 413 U.S. 266

(1973) 16

“Arkansas v. Sanders, 422 U.S. 573 (1979), 99 S.Ct.

2541 7-14, 18, 20, 21

Bowen v. United States, 422 U.S. 916 (1975) seccecsso-. 17

Cady v. Dombrowski, 413 U.S. 483 (1973) cscccscccsu- 11

California v. Minjores, 24 Cal.3d 410, 591 P.2d 514,

153 Cal. Rptr. 224 (Sup. Ct. 1979), cert. den. ——

U.S. ——, 62 L.Ed.2d 117 (1979) ae

ii TABLE OF CONTENTS

PAGE

Carroll v. United States, 267 U.S. 132 (1925) .......... 11, 19, 20

Chambers v. Mahoney, 399 U.S. 42 (1970) .......... 11, 14, 19, 20

Chimel v. California, 395 U.S. 752 (1969) 16

Darrow v. Hanover Township, 58 N.J. 410 (1971),

278 A.2d 200 17

Desist v. United States, 394 U.S. 244 (1969) 00... 14, 18

Johnson v. New Jersey, 384 U.S. 719 (1960) ................ 16, 17

Katz v. United States, 389 U.S. 347 (1967) -.....0........ 12

Kemner v. Texas, —— S8.W.2d ——, 25 Cr.L. 3196

(Texas Ct. of Crim. App. 1979) 21

Linkletter v. Walker, 381 U.S. 518 (1965) -....0.020222.20...... 16, 18

Mapp v. Ohio, 367 U.S. 643 (1961) 16

Nastu v. State, 589 S.W.2d 434, 26 Cr.L. 2117 (Tex.

Ct. Crim. App. October 3, 1979) 21

Rahas v. Illinois, U.S. ——, 99 S.Ct. 421 (1979) 12

State v. Barnes, 54 N.J. 1 (1969), 252 A.2d 398, cert.

den. 396 U.S. 1029 (1970) ...... 12

State v. Boykins, 50 N.J. 73 (1967), 232 A.2d 141 ...... 12

State v. Carpentieri, 82 N.J. 546 (1980), —— A.2d

inaestinin e 17

State v. Gray, 59 N.J. 563 (1971), 285 A.2d 1 ....W.. 12

State v. Hannah, 125 N.J. sca 290 (App. Div.

1973), 310 A.2d 512 o°

State v. Howery, 80 N.J. 563 (1979), 404 A.2d 632 ...... 16-18

State in the Interest of A.C., 115 N.J. Super. 77 (App.

Div. 1971), 278 A.2d 225 ~ a

TABLE OF CONTENTS iii

PAGE

State v. Kahlon, 172 N.J. Super. 331 (App. Div.

1980), —— A.2d —— 21

State v. Koch, 118 N.J. Super. 421 (App. Div. 1972),

288 A.2d 295 17

State v. Lueder, 74 N.J. 62 (1977), 376 A.2d 1169 ...... 17

State v. McCarthy, 130 N.J. Super. 540 (App. Div.

1974), 328 A.2d 10 12

State v. Murray, 151 N.J. Super. 300 (App. Div.

1977), 376 A.2d 1255 i 11, 12

State v. Nash, 64 N.J. 464 (1974), 317 A.2d 689 ............ 16, 17

State v. Naturile, 83 N.J. Super. 563 (App. Div.

1964), 200 A.2d 617 12

State v. Patino, 83 N.J. 1 (1980), —— A.2d ——.... 17

State v. Smith, 113 N.J. Super. 120 (App. Div. 1971),

273 A.2d 120 20

Stovall v. Denno, 388 U.S. 293 (1967) 16, 17, 21

Texas v. White, 423 U.S. 67 (1975) 11

United States v. Berry, 571 F.2d 2 (7 Cir. 1978)

(on rehearing) cert. den. sub. nom. Richardson v.

United States, 489 U.S. 840 (1978) 21

United States v. Calandrella, 605 F.2d 236 (6 Cir.

1979) 13, 19

United States v. Chadwick, 433 U.S. 1 (1977) ......8-10, 12-14

18, 20, 21

United States v. Choate, 576 F.2d 165 (9 Cir. 1978),

eert. den. 439 U.S. 953 (1978) 21

United States v. Dien, 615 F.2d 10 (2 Cir. 1980) ...... 21

United States v. Dioniso, 410 U.S. 1 (1973) -220000... 12

iv TABLE OF CONTENTS

PAGE

United States v. visas: 576 F.2d 601 (5 Cir.

DLR). Srrccandinentoteneied & ‘ 11

United States v. hem 603 F.2d 122 (10 Cir. 197 9) ....14, 21

United States v. Mackay, 606 F.2d 264 (9 Cir. 1979) 21

United States v. Miller, 608 F.2d 1089 (5 Cir. 1979) 21

United States v. Peltier, 422 U.S. 531 (1975) ....15, 17, 18, 20

United States v. Reda, 563 F.2d 510 (1977) ................ 21

‘United States v. Steward, 595 F.2d 500 (9 Cir. 1979) 21

Williams v. United States, 401 U.S. 646 (1970) ............ 14, 16

United States Constitution Cited

Fourth Amendment wodey Uy 20

Statutes Cited

N.J.S.A. 24:21-19 # 2

N.J.S.A. 24:21-19(a)

N.J.S.A. 24:21-20 2,4

N.J.S.A. 24:21-20(2) (4) 4

Rules Cited

R. 3:5-7

R. 3:5-7(1), (d) ...

No. 79-1861

IN THE

Siuprene Court of the United States

Ocrosper Term, 1979

ROBERT W. EPP and RAY B. FOSTER,

Petitioners,

vs.

STATE OF NEW JERSEY,

Respondent.

On Petition for Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

-™

——

BRIEF IN OPPOSITION

Opinions Below

The New Jersey Supreme Court’s order denying peti-

tioners’ petition for certification appears in petitioners’

appendix, at 6a. The opinion of the Superior Court of

New Jersey, Appellate Division, not reported, appears in

petitioner’s appendix, at la to 5d.

Statutes and Rules Involved

Unitep States Constitution

AMENDMENT IV—SEARCHES AND SEIZURES

The right of the people to be secure in their

persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and par-

ticularly describing the place to be searched, and

the persons or things to be seized.

N.J.S.A. 24:21-19. Prohibited acts A.—Manufacturing,

distributing, or dispensing—Penalties

a. Except as authorized by this act, it shall be un-

lawful for any person knowingly or intentionally:

(1) To manufacture, distribute, or dispense, or to

possess or have under his control with intent to

manufacture, distribute, or dispense, a controlled

dangerous substance;

N.J.S.A. 24:21-20. Prohibited acts B.—Possession, use

or being under influence—Penalties

A. It is unlawful for any person, knowingly or in-

tentionally, to obtain, or to possess, actually or con-

structively, a controlled dangerous substance unless

such substance was obtained directly, or pursuant

to a valid prescription or order from a practitioner,

while acting in the course of his professional prac-

tice, or except as otherwise authorized by this act.

(4) Possession of more than 25 grams of mari-

juana, including any adulterants or dilutants, or

more than 5 grams of hashish is guilty of a high

misdemeanor and shall be punished by imprison-

ment for not more than 5 years, a fine of not more

than $15,000.00, or both; provided, however, that

any person who violates this section with respect

to 25 grams or less of marijuana, including any

adulterants or dilutants, or 5 grams or less of hash-

ish is a disorderly person.

New Jersey Rules of Court, R. 3:5-7(1), (d): Motion to

Supress Evidence and for Return of Property

(a) Notice; Time. On notice to the prosecutor of

the county in which the matter is pending or threat-

ened and to the applicant for the warrant, if the

search was with a warrant, and in accordance with

the applicable provisions, a person claiming to be

aggrieved by an unlawful search and seizure and

having reasonable grounds to believe that the evi-

dence obtained may be used against him in a penal

proceeding, may apply only to the Superior Court

or county court of the county in which the evi-

dence was obtained to suppress the evidence and

for the return of the property seized even though

the offense charged or to be charged may be within

the jurisdiction of a municipal court. Such mo-

tion shall be made within 30 days after the ini-

tial plea to the charge unless, the court, for good

cause shown, enlarges the time. A motion made

before the trial shall be determined before trial.

The motion may be made after trial has commenced

only if the trial court finds that defendant could

not reasonably have made it prior thereto.

4

(d) Appellate Review. Denial of a motion made

pursuant to this rule may be reviewed on appeal

from a judgment of conviction notwithstanding that

such judgment is entered following a plea of guilty.

Statement of the Case

Salem County Indictment No. I-260-76-7, filed on March

25, 1977, charged petitioners herein, Ray B. Foster and

Robert W. Epp, with unlawful possession of marijuana,

eontrary to N.J.S.A. 24:21-20(2)(4), and possession with

intent to distribute marijuana, contrary to N.J.S.A. 24:21-

19(a), (counts one and two respectively). Petitioners’

filed a motion to suppress evidence on November 3, 1978,

before the Honorable Norman Telsey, J.S.C. Said mo-

tion was denied. Petitioners’ motion for reconsideration

of the aforementioned order denying the motion to sup-

press was entertained and denied on January 19, 1979.

The following facts were adduced at the motion to

suppress evidence. On February 4, 1977, at approximately

10:30 a.m., New Jersey State Trooper Thomas Schlichtig

was patrolling the southern end of the New Jersey Turn-

pike. Officer Schlichtig was seated in his unmarked patrol

vehicle, facing the southbound lane of the thoroughfare

when he observed a 1974 Mercury enter the tollgate. (T

9-12 to 16).* The vehicle drove through the toll station

and paused briefly at a nearby public telephone booth.

As the vehicle slowed to an eventual stop, the officer

noted that its left rear brake light was not operational

'(T9-17 to 21).

*“T” denotes the transcript of petitioners’ motion to suppress

on November 3, 1978.

5

The 1974 Mercury pulled back onto the roadway and

Officer Schlichtig pursued the automobile in order to alert

the driver that his brake light was inoperable. After

pursuing the vehicle a short distance, the officer instructed

the driver, petitioner Epp, to pull over onto the shoulder

of the northbound lane. (T9-23 to 24). Thereupon, peti-

tioner Epp exited the 1974 Mercury and walked back

to the unmarked patrol vehicle. (T12-9 to 11 and T23-8

to 10). Officer Schlichtig requested that Epp produce

his driver’s license and registration. Epp presented a

valid Florida driver’s license but remarked that the regis-

tration card was in the glove compartment. (T12-13 to 15,

T23-14 to 16, T37-19 to 20, T23-21 to 24 and T38-15 to

16).

Epp and the officer walked back to the passenger’s side

of Epp’s vehicle where the latter requested that Foster,

who was seated in the right front seat, hand Epp the regis-

tration card from inside the glove compartment. (T24-16

to 17). When Foster opened the door, the officer detected

the strong, pungent odor of raw, unburned marjuana

emanating from the vehicle. As Foster opened the glove

compartment, the officer observed a pack of “Job” cigar-

ette papers located therein, Foster retrieved the registra-

tion card and handed it to Epp, who in turn presented

same to Officer Schlichtig. (T25-2 to 3 and T38-9 to 14).

Although the officer could detect the strong odor of

marijuana emanating from the vehicle, his visual inspec-

tion of the interior thereof did not disclose the physical

presence of the contraband. (T27-5 to 9 and T13-6 to 9).

Officer Schlichtig walked with petitioner Epp to the rear

of the vehicle and advised the latter that the rear brake

light was not functioning. Epp appeared to be surprised.

(T39-8 to 9, T13-10 to 12). The officer then requested

that Foster, who was still seated in the front seat of the

6

vehicle, depress the brake pedal. Foster corlied and

the officer pointed out that the light was indeed not fune-

tioning. (T31-16 to 17, T13-13 to 14, T28-7 to 10, T41-16

to 17 and T28-14). The officer then inquired of Epp

whether he would open the trunk. Epp replied “Sure”.

(T13-24).

When the trunk was opened the officer noted a “very

strong odor” of marijuana emanating from somewhere

inside the trunk. He also observed four suitcases and

two duffle bags inside of the trunk, The officer’s visual

inspection of the trunk disclosed that a green plastic bag

was protruding from one of the zipper-type blue suit-

cases. (T14-2 to 12, T32-15 to 16, T42-12 to 13). There-

upon, the officer pressed down on the suitcases and noted

the sound of crackling plant stalks. He therefore reason-

ably concluded that the odor was apparently coming from

the suitcases and the duffle bags. (T13-24 to 25, T14-5 to

6, T35-7, T35-15 to 19 and T14-10 to 14).

Officer Schlichtig requested the keys to the luggage but

Epp indicated that he did not have same in his possession.

The officer then inserted his fingers into suitcase through

the area from which the plastic bag was protruding, broke

the plastic bag and removed a substance later identified

as marijuana. Epp was then placed under arrest, hand-

cuffed and placed in the front seat of the patrol vehicle.

Foster, who had been seated in the automobile during this

time, was also placed under arrest. (T14-23 to 25).

The officer then searched the interior of the vehicle and

found the keys to the luggage in the glove compartment.

A folder containing records of narcotic transactions was

‘discovered on the front seat of petitioner Epp’s vehicle.

The folder belonged to Foster. Two hundred and seven-

teen pounds of marijuana were found in the suitcase

(which were opened at the scene). (T15-6 to 8, T21-6 to

7, T14-23 to 25, T15-17 to 20 and T19-1). The officer

was alone during the entire proceeding. The search of

the luggage formed the basis for petitioners’ motion to

suppress, Said motion was denied.

Petitioners then entered pleas of guilty to the charges,

contained in Indictment No. I-260-76-7, pursuant to New

Jersey Court Rules R. 3:5-7, while reserving their right

to appeal from the denial of the motion to suppress.

In an unpublished opinion filed on December 14, 1979,

the Superior Court of New Jersey, Appellate Division,

affirmed the convictions below (Pal to 5). Petitioners’

petition of certification to by the New Jersey Supreme

Court was denied on February 27, 1980. (Pa6).

REASONS FOR DENYING CERTIORARI

POINT I

The famts of record do not permit the formulation

of the question stated by petitioners.

Relying exclusively on this Court’s decision in Arkansas

v. Sanders, 422 U.S. 573 (1979), 99 S.Ct. 2541, petitioners

assert that the instant search and seizure of marijuana

contravened the Fourth Amendment to the United States

Constitution in general, and Arkansas v. Sanders, supra,

in particular. They assert that this Court’s decision in

that case should be applied retroactively. The State

of New Jersey disagrees and asserts that the retroac-

tivity of this Court’s decision in Arkansas v. Sanders,

supra is not fairly presented under the facts of the present

appeal, As a basic premise, we submit that the retro-

activity of any given new exclusionary rule or decision

of this Court need not be decided where, as here, the new

8

principle of law is not clearly implicated. Our position

is predicated on the view that Arkansas v. Sanders, supra

and United States v. Chadwick, 433 U.S. 1 (1977), are fac-

tually distinguishable from the case at bar.

- It is clear that United States v. Chadwick, supra, did not

involve the automobile exception to the Fourth Amend-

ment’s mandate that searches be conducted pursuant to

a search warrant issued by a detached magistrate. In-

deed, the facts in United States v. Chadwick, supra, be-

lie the argument presented by petitioners herein. In

Chadwick, several Amtrak Railroad Officials observed de-

fendants place a footlocker into a Boston-bound train.

The officials noted that taleum powder was leaking from

the footlocker. This powder was often used to camouflage

the odor of marijuana. Jd. at 2480. The federal authorities

were alerted and were waiting for defendants when the

latter disembarked in Boston. Although the authorities

had probable cause to search the footlocker and in fact,

had two days in which to procure a search warrant, they

nonetheless waited until the locker was placed into the

trunk of an automobile. While the trunk of the vehicle

was still open and before the vehicle’s ignition was turned

on, the police seized the footlocker and arrested defend-

ants. One and one-half hours later, the footlocker was

opened in the Boston Federal Building and found to con-

tain marijuana. Jd. at 2480.

In reviewing the matter, this Court noted that while

the Government had sought to justify the search under

the automobile exception to the warrant requirement on

appeal to the circuit court, the narrow question which was

presented on certiorari was whether a search warrant was

required before the authorities could open a locked foot-

locker that was properly in their possession and where

the authorities had probable cause to believe that the

footlocker contained contraband. “Accordingly, [that]

case present[ed] no issue of the application of the ex-

clusionary rule.” United States v. Chadwick, supra n. 3

at 2481, 2483.

In Arkansas v. Sanders, supra, the police, acting on an

informant’s tip that Sanders would be arriving at an air-

port carrying a green suitcase containing contraband,

placed the Little Rock Arkansas Airport under surveil-

lance. Authorities of the local police department observed

Sanders as he claimed the suitcase from the baggage serv-

ice, loaded it into the trunk of a taxicab, entered the veh-

icle with a companion and rode away from the scene.

Shortly Sanders was riding and requested that the taxi

driver open the truck of the taxicab. The latter complied.

The police then removed the luggage, opened it and dis-

covered 9.3 pounds of marijuana therein. Arkansas v.

Sanders, supra at 2588. Thus, the police had probable

cause to believe that the suitcase contained marijuana be-

fore it was placed into the trunk of the taxicab.

Justice Powell, speaking for a majority of the Court,

noted that the case had been accepted by writ of certiorari

to the Supreme Court of Arkansas “to resolve some ap-

parent misunderstanding as to the application of [the

Court’s] decision in United States v. Chadwick, [supra],

to warrantless search of luggage seized from an automo-

bile.” Jd. at 2588. However, as noted by the Honorable Chief

Justice Burger, (concurring), the Sanders opinion did not

involve the automobile exception to the warrant require-

ment. This was particularly true since the police had

probable cause to search the luggage before it was placed

into the runk of the taxi cab. See, Arkansas v. Sanders,

supra at 2594 (Burger, C.J. concurring). In Sanders,

supra, the relationship between the luggage searched and

the automobile were “purely coincidental,” (as in Chad-

a>

10

wick). Id. at 2595. “[Sanders] simply does not present

the question of whether a warrant is required before open-

ing luggage when the police have probable cause to believe

contraband is located somewhere in the vehicle. . . .” (em-

phasis in original).

The case currently under review presents the question

of whether a warrant is required before the authorities

may search an automobile in situations where they have

no advanced notice that a particular person or his lug-

gage contain contraband. Officer Schlichtig noted the

strong odor of marijuana emanating from the vehicle when

petitioner Foster opened the passenger’s door. A subse-

quent visual inspection of the interior of the vehicle did

not disclose the presence of contraband. Operating under

a reasonable belief that the contraband could be concealed

in the trunk, the officer, with petitioner Epp’s consent,

opened the trunk of the vehicle. Unable to discern the

location of the marijuana, the officer reached into one of

the zipper-type suitcases and removed some marijuana.

At this point in time, Epp was behind the vehicle’s trunk

with the officer, but Foster remained inside apparently free

to turn the ignition and to remove both the automobile

and its contents from the scene. Thus, exigent circum-

stances existed when the officer reached inside of the bag-

gage. Neither the automobile nor the contents were under

exclusive police control. The inherent mobility of the veh-

icle and therefore, the possible destruction of evidence was

clear. (T12-13 to 15; T23-14 to 16; T24-16 to 17; T25-2 to

3; T38-9 to 14; T27-5 to 9; T13-14 to 24; T14-2 to 12; T13-

25; T14-23 to 25).

The State of New Jersey thus submits that the instant

case under review presents a factual situation which is

clearly distinguishable from both United States v. Chad-

wick, supra and Arkansas v. Sanders, supra. In contrast

11

to those cases, the police officer in the instant matter did

not have probable cause to believe that the luggage in ques-

tion contained contraband independent from the vehicle

itself. At the time of the instant search, to wit, when the

officer inserted his hand into the zipper-type suitcase, the

automobile nor its contents and occupants were under the

exclusive control of the authorities. The placing of the

luggage in the trunk of the vehicle was not “purely coin-

eidental.” Cf. Arkansas v. Sanders, supra at 2595. The

instant search was thus, one of the automobile and not a

particular parcel located therein. Moreover, the record

below indicated that the officer was present at the scene

without additional officers, as was the case in both Sanders,

supra, and Chadwick, supra.

In United States v. Fontecha, 576 F.2d 601 (5 Cir. 1978),

the Fifth Circuit upheld the warrantless search of a drug

suspect’s car, including the unlocked suitcase on the back

seat of the vehicle, after an officer stopped the man and

his companion when they sped away from a permanent

border checkpoint. The court in distinguishing Chadwick,

concluded that the strong odor of marijuana coming from

the vehicle and the exigent circumstances presented, justi-

fied the search of the suitcase. The court found that the

two-on-one confrontation, involving an automobile, on a

desert road was sufficient exigent circumstances to justify

the search, judged as of the time the incident occurred

and not in light of subsequent events. Jd. at 2425.

Since the present search involved the automobile excep-

tion to the warrant requirement, the search was constitu-

tionally permissible under this Court’s decisions in Car-

roll v. United States, 267 U.S. 132 (1925); Texas v. White,

423 U.S. 67, 68 (1975); Chambers v. Mahoney, 399-U.S.

42 (1970), and Cady v. Dombrowski, 413 U.S. 433 (1978).

See also, State v. Murray, 151 N.J. Super., 300 306-307

12

(App. Div. 1977), 376 A.2d 1255; State v. McCarthy, 130

N.J. Super. 540 (App. Div. 1974), 328 A.2d 10; State v.

Hannah, 125 N.J. Super. 290, 294-295 (App. Div. 1973),

310 A.2d 512; State v. Naturile, 83 N.J. Super. 563, 568,

573 (App. Div. 1964), 200 A.2d 617; State v. Gray, 59 N.J.

563, 568-569 (1971), 285 A.2d 1; State v. Barnes, 54 NJ.

1, 10 (1969), 252 A.2d 398, cert. den. 396 U.S. 1029 (1970),

and State v. Boykins, 50 N.J. 73, 81-81 (1967), 232 A.2d

141.

It was not unreasonable to undertake the additional in-

trusion of a search without a warrant since the automobile,

its occupants and contents were not exclusively under po-

lice control when the officer reached into the zippered lug-

gage. This, coupled with the obvious exigent circumstances,

clearly justified the intrusion. See, Arkansas v. Sanders,

supra at 2589, n.3. Arkansas v. Sanders, supra, and United

States v. Chadwick, supra, having no application to the

present case, this Court need not decide the retroactivity

of the former case to the case currently under review.*

The instant search was thus, constitutionally permissible.

* We also submit that since the plastic bag was protruding from

the suitcase at the time of the instant search any expectation of

privacy regarding the contents thereof was severely undermined.

See, Rahas v. Iilinois, US. , 99 S.Ct. 421 (1979).

What one knowingly opens to the public even in his own home

or office is not subject to Fourth Amendment prohibition. Katz

v. United States, 389 U.S. 347 (1967), United States v. Dioniso,

410 U.S, 1 (1973).

13

POINT II

The instant petition does not present a substantial

question for resolution since prior decisions of this

Court clearly indicate that Arkansas v. Sanders, supra,

and United States v. Chadwick, supra, have no retro-

active application to the instant matter.

Assuming arguendo that Arkansas v. Sanders, supra, is

applicable to the current matter under review, we sub-

mit that this Court should deny certiorari since its prior

decisions in the area of the exclusionary rule clearly man-

date that the decision in Arkansas vy. Sanders, is to have

prospective effect only. Therefore, no substantial ques-

tion warranting review by this Court is presented herein.

In an unpublished opinion, the Superior Court of New

Jersey, Appellate Division, held that Arkansas v. Sanders,

supra, does not have retroactive application to the present

case. The State of New Jersey wholly agrees with that

decision. (Pal to 5).

The warrantless search of the suitcase in the instant

case occurred on February 4, 1977. On June 21, 1977

United States v. Chadwick, supra, was decided. The Chad-

wick Court held that the warrantless search of a foot-

locker, as it was about to be placed in the trunk of an

automobile, was unconstitutional. On June 20, 1979,

Arkansas v. Sanders, supra was decided. That ease

held that the warrantless search of a suitcase in the trunk

of an automobile was unconstitutional because no exigent

circumstances were demonstrated. Both cases of course,

were decided subsequent to the search in the instant case.

We submit that insofar as both cases may have modified

accepted law in the area of the Fourth Amendment, they

may not be relied upon in determining the reasonayle-

ness of the search in the instant case. United States v.

Calandrella, 605 F. 2d 236 (6 Cir. 1979).

14

That this Court’s decisions in Chadwick, supra and Ar-

kansas v. Sanders, supra, significantly modified the appli-

cation of the exclusionary rule to automobile searches

can not be gainsaid. In Chambers v. Maroney, supra, this

Court ruled that it was constitutionally permissible to

conduct, predicated upon probable cause, a warrantless

search of an automobile and its contents which had been

stopped on a public highway. Given the detaining of

confining the vehicle in the first instance, no constitu-

tional distinction was perceived between searching it im-

mediately or awaiting the issuance of a search warrant.

Chambers v. Maroney, supra at 52. Although the Cham-

bers opinion utilizes the “exigent circumstances” analysis

and focuses on vehicular mobility, the case was not de-

cided on the basis that the automobile in question was in

fact, capable of being moved at the instant of the search.

Indeed, the vehicle was secured at police headquarters

at the time it was searched. Id. at 44, 52. While the

Chambers Court observed that “To]jnly in exigent cireum-

stances will the judgment of the police regarding prob-

able cause serve as sufficient authorization for a search,”

Chambers, supra at 51, the Court was apparently con-

cerned about inherent rather than actual vehicular mo-

bility at the time of the search. Jd. at 52, United States

v. Gooch, 603 F.2d 122, 124 (10 Cir. 1979).

The State emphasizes that Sanders and Chadwick, supra,

have no application to the case currently under review.

However, should this Court view the instant matter as

an appropriate vehicle to decide the retroactivity of San-

ders, supra, we offer the following observations. The

application of new extensions of the exclusionary rule

has been expressly rejected by this Court. See e.g., Desist

v. United States, 394 U.S. 244 (1969), and Williams v.

United States, 401 U.S. 646 (1970). Any conceivable doubt

15

as to the Court’s position on this issue was totally obli-

terated in United States v. Peltier, 422 U.S. 531 (1975),

wherein the condemnation of roving border patrol searches

expressed in Almeida-Sanchez v. United States, 413 U.S.

266 (1973), was accorded no effect to the Peltier case.

The Court prefaced its determination, the substantive rea-

soning of which is considered infra, thusly:

Since 1965 this Court has repeatedly struggled

with the question of whether rulings in criminal

cases should be given retroactive effect. In those

cases where the major purpose of new constitu-

tional doctrine is to overcome an aspect of the

criminal trial that substantially impairs its truth-

finding function and so raises serious questions

about the accuracy of guilty verdicts in past trials

... the doctrine has quite often been applied re-

troactively. Jt is indisputable, however, that in

every case in which the Court has addressed the

retroactivity problem in the context of the exclu-

stonary rule, whereby concededly relevant evidence

is excluded in order to enforce a constitutional guar-

antee that does not relate to the integrity of the

factfindimg process, the Court has concluded that

any such new constitutional principles would be ac-

corded only prospective application. United States

v. Peltier, supra at 535; emphasis supplied; cita-

tions and footnote omitted.

The State believes that utilization of the proper stand-

ards and, more importantly, appreciation of the funda-

mental purpose of the exclusionary rule clearly militate

in favor of prospective only application of the Sanders

decision.

Determinations as to the retroactivity of court-fashioned

rules of criminal procedure devolve to questions of policy,

16

for “the constitution neither prohibits nor requires retro-

spective effect,” Linkletter v. Walker, 381 U.S. 518, 629

(1965) [holding the exclusionary rule announced in Mapp

v. Ohio, 367 U.S. 643 (1961) to have prospective appli-

cation only]. Accord, Johnson v. New Jersey, 384 U.S.

719, 728 (1960); State v. Howery, 80 N.J. 563 (1979),

404 A.2d 632, and State v. Nash, 64 N.J. 464 (1974),

317 A.2d 689. The test for determining the retroactive

effect of a court ruling is based on a balancing of in-

dividual rights against society’s need to protect itself and

to maintain a stable system of law enforcement. This

has given rise to formulation of the three-pronged stand-

ard set forth in Stovall v. Denno, 388 U.S. 293 (1967).

The components of that test are:

(a) the purpose to be served by the new standard;

(b) the extent of the reliance by law enforcement

authorities on the old standard; and (c) the effect

on the administration of justice of the retroactive

application of the new standard. 388 U.S. at 297.

For example, application of these criteria in Stovall led

the Supreme Court to conclude that prospective treatment

was mandated for the narrowed scope of searches incident

to arrest established in Chimel v. California, 395 U.S. 752

(1969). See Williams v. United States, 401 U.S. 646 (1971).

The most recent Supreme Court cases treating the prob-

lem of the retroactivity of constitutional rules governing

the rights of criminal defendants have mandated prospec-

tive application of procedurally based rules that do not

affect proof of the actual elements of the offense charged.

The rule of Almeida-Sanchez v. United States, 413 U.S.

266 (1973), which applied the Fourth Amendment exclu-

sionary standard to roving boarder searches by Border

Patrol Agents, has recently been held inapplicable to any

17

search that occurred prior to the date of that decision.

Bowen v. United States, 422 U.S. 916 (1975) ; United States

v. Peltier, 422 U.S. 531 (1975).

When addressing the question of retroactivity, the New

Jersey Courts have followed the federal criteria. State

v. Patino, 83 N.J. 1 (1980), —— A.2d ——; State v. Car-

pentieri, 82 N.J. 546 (1980), —— A.2d ——-; State v.

Howery, supra; State v. Lweder, 74 N.J. 62 (1977), 376

A.2d 1169; State v. Nash, supra at 471; Darrow v. Han-

over Township, 58 N.J. 410 (1971), 278 A.2d 200; Johnson

v. New Jersey, supra; State v. Koch, 118 N.J. Super. 421

(App. Div. 1972), 288 A.2d 295. Thus, in New Jersey, as

in the federal courts, competing considerations in each case

are weighed by examining: (1) the purpose of the rule

and whether it would be furthered by retroactive appli-

cation, (2) the degree of reliance placed on the old rule

by those who administered it, and (3) the effect retroac-

tive application would have on the administration of jus-

tice, Stovall v. Denno, supra at 297 and State v. Patino,

supra.

With respect to the first prong of the aforementioned

test, it is evident that only prospective application should

be given to the Court’s decision in Arkansas v. Sanders,

supra. The purposes of the exclusionary rule can in no

way be advanced by giving retroactive application to new

decisions in the law of search and seizure. The purpose

of the exclusionary rule is, of course, to deter illegal police

conduct and preserve judicial integrity. This objective can

only be advanced by first informing law enforcement offi-

cers that certain conduct is illegal and, then excluding any

future evidence which is obtained in violation of that pro-

hibition. If the police gain evidence in a manner which

they have reason to believe is acceptable and that evi-

is suppressed due to a later change or clarification of the

18

law in that area, the only benefit will be to the criminal

who is set free even though there is no doubt as to his

guilt. Our society cannot gain since there could not pos-

sibly be any deterrent effect in such an application of the

exclusionary rule. The exclusionary rule and the rules

set forth in Chadwick and Sanders cannot be advanced by

retroactive application. See, United States v. Peltier, 422

U.S. 531, 538-539 (1975) ; State v. Howery, supra at 8.

Thus application of the foremost of the above criteria,

i.e., the purpose to be served by the new constitutional

precept, “strongly supports prospectivity for a decision

amplifying the evidentiary exclusionary rule.” Desist v.

United States, supra at 249. As reiterated in the Desist

opinion,

all of the cases . . . requiring the exclusion of illegal

evidence have been based on the necessity for an

effective deterrent to illegal police action. ... We

cannot say that this purpose would be advanced by

making the rule retrospective. This misconduct of

the police ... has already occurred and will not be

corrected by releasing the prisoners involved. Id.

at 249, quoting Linkletter v. Walker, supra at 636.

Desist and its progeny [see ante and infra] rest their

determination upon true understanding of the exclusionary

rule. As emphasized, albeit in a somewhat different con-

text, by the Court:

The purpose of the exclusionary rule is not to re-

dress the injury to the privacy of the search victim:

“(T]he ruptured privacy of the victims’ homes

and effects cannot be restored. Reparation comes

too late.”

Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct.

1731, 1742, 14 L.Ed.2d 601 (1965).

19

Instead, the rule’s prime purpose is to deter future

unlawful police conduct and thereby effectuate the

guarantee of the Fourth Amendment against unrea-

sonable searches and seizures:

“The rule is calculated to prevent, not to repair.

Its purpose is to deter—to compel respect for the

constitutional guaranty in the only effectively

available way—by removing the incentive to dis-

regard it.” Elkins v. United States, 364 U.S. 206,

217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).

Accord, Mapp v. Ohio, supra. 367 U.S. at 656, 81

S.Ct., at 1692; Tehan v. United States ex. rel.

Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.

2d 453 (1966); Terry v. Ohio, 392 U.S. 1, 29, 88

S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). In sum,

the rule is a judicially created remedy designed to

safeguard Fourth Amendment rights generally

through its deterrent effect, rather than a personal

constitutional right of the party aggrieved. United

States v. Calandra, 414 U.S. 338, 347-348 (1974).

In the matter herein, the intrusion into defendants’

privacy interests emanating from the detention of his

motor vehicle was fait accompli; the deterrent thrust of

the exclusionary rule could thus in no way be advanced by

the invalidation of police action taken in February 1979

through the invocation of constitutional rights unrecog-

nized before March 1979.

Secondly, we note that New Jersey law enforcement

personnel substantially relied upon this Courts’ holdings

in Chambers v. Maroney, supra; Carroll v. United States,

supra. Constitutional limitations on the search of lug-

gage seized with probable cause during a valid warrant-

less search of motor vehicles was not clearly established

20

until Sanders, supra. In the instant case on February

4, 1977, it is clear that the arresting officer relied sub-

stantially on cases such as Carroll v. United States, supra

and Chambers v. Maroney, supra in searching the suit-

case. Prior to the decision in Chadwick there was no

reason to believe that suitcases were excepted from the

automobile exception. Se» State v. Smith, 113 N.J. Super.

120 (App. Div. 1971), 273 A.2d 120; State in the In-

terst of A.C., 115 N.J. Super. 77 (App. Div. 1971), 278

A.2d 225. Indeed, the Supreme Court in Sanders recog-

nized that both courts and law enforcement officers have

often found difficulty in applying previous Fourth Amend-

ment decisions to individual cases. 99 S.Ct. at 2589. Based

on the foregoing it is clear that law enforcement reason-

ably relied on the principles set forth in Carroll and

Chambers. To hold police officers to a standard which

this Court has found the lower courts unable to meet

would be unreasonable.

It is also noteworthy that this Court, in United States

v. Peltier, supra at 538, stated:

The teaching of these retroactivity cases is that

if the law enforcement officers reasonably believed

in good faith that evidence they had seized was ad-

missible at trial, the ‘imperative of judicial integrity’

is not offended by the introduction into evidence

of that material even if decisions subsequent to

the search or seizure have broadened the exclu-

sionary rule to encompass evidence seized instant

manner. Id.

Thus, where as here, the arresting officer reasonably con-

cluded that his conduct was in accordance with consti-

tutional principles applicable at the time of the instant

search, the “imperative of judicial integrity” noted in

United States v. Peltier, swpra, is not offended.

21

Finally, the State submits that retroactive application

of Chadwick and Sanders would place significant burdens

on the administration of justice. The courts would be

bound to meet a great number of Fourth Amendment

claims. Moreover, this burden would be even further in-

creased if cases such as the one at bar were held to come

within the Chadwick and Sanders decision. <As this court

is aware many automobile search cases were decided dur-

ing the interim between the Chadwick and Sanders deci-

sions. If each of these defendants are now allowed to raise

this issue, without regard to whether or not it was raised

at the suppression hearing, the courts’ burden will be great

indeed.

Application of the factors set forth in Stovall v. Denno,

supra, leads to the inescapable conclusion that Sanders

and Chadwick have no bearing on the case at bar. See,

United States v. Reda, 563 F.2d 510 (1977), (holding Chad-

wick to be prospective only); United States v. Berry, 571

F.2d 2 (7 Cir. 1978) (on rehearing) cert. den. sub. nom.

Richardson v. United States, 439 U.S. 840 (1978); United

States v. Calandrella, 605 F.2d 236 (6 Cir. 1979); United

State v. Steward, 595 F.2d 500, 503 (9 Cir. 1979); Nastu

v. State, 589 S.W.2d 434, 26 Cr.L. 2117 (Tex. Ct. Crim.

App. October 3, 1979); California v. Minjores, 24 Cal.3d

410, 591 P.2d 514, 153 Cal. Rptr. 224 (Sup. Ct. 1979), cert.

den. —— U.S. ——, 62 L.Ed. 2d 117 (1979). Kemner v.

Texas, —— 8.W.2d , 25 Cr.L. 3196 (Texas Ct. of Crim.

App. 1979). State v. Kahlon, 172 N.J. Super. 331, 341

(App. Div. 1980), —— A.2d ——; United States v. Choate,

576 F.2d 165, 182 n.20 (9 Cir. 1978), cert. den. 439 U.S.

953 (1978). But see, United States v. Gooch Jr., 603 F.2d

122 (10 Cir. 1979) ; United States v. Mackay, 606 F.2d 264

(9 Cir. 1979); United States v. Dien, 615 F.2d 10 (2 Cir.

1980); and United States v. Miller, 608 F.2d 1089 (5 Cir.

1979), (holding that Sanders is retroactive to Chadwick

only).

22

CONCLUSION

For the reasons set forth herein, it is respectfully

urged that the petition for a Writ of Certiorari should

be denied. :

Respectfully submitted,

Joun J. Deanan,

Attorney General of New Jersey,

Attorney for Plaintiff-Respondent,

State of New Jersey,

State House Annex,

Trenton, New Jersey 08625.

By: Jozn DeCicco,

Assistant Attorney General.

Joun DeCicco,

Assistant Attorney General,

Division of Criminal Justice,

Of Counsel.

Tuomas A. Penn,

Deputy Attorney General,

Division of Criminal Justice,

On the Brief.