Petition — Hall v. New Jersey

Supreme Court brief1983

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IN THE | ee

SUPREME COURT OT THE UNITED STATES ~°“<____—

October Term, 1983

NO.

STATE OF NEW JERSEY,

Respondent,

Vv.

JAMES H. HALL, JR.,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

STUART SURICK, ESQUIRE

Attorney for Petitioner

3735 Lawrenceville Road

Princeton, New Jersey

08540

QUESTIONS PRESENTED

1. Whether the courts of the State of

New Jersey have jurisdiction under the Fourth

Amendment of the United States Constitution to

create a procedure whereby a citizen can be

compelled to submit to a lineup on less than

probable cause.

2. Whether, under the Fourth Amend-

ment of the United States Constitution, the

Courts of the State of New Jersey can employ

a procedure whereby a citizen can be compelled

to submit to a lineup on less than probable

cause, be in fact deprived of his liberty

without arrest or indictment, and without

rights to bail or Miranda warnings.

3. Whether a procedure may be employed

whereby a citizen is detained, seized, and

compelled to submit to a lineup on the bare

allegations of a police officer, on less than

probable cause, without an opportunity prior

to the detention to confront his accusors

to show mistake, suggestion, or lack of credi-

bility.

TABLE OF CONTENTS

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Reasons for granting the petition .

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TABLE OF AUTHORITIES

CASES Page

Davis v. Mississippi, 394 U.S. 721 £1969). 12, 19

Dunaway v. New York, 442 U.S, 220 (1979) .... 22

Illinois v. Lance Gates, 51 U.S.L.W. 4709

ras ns Ce Cestiwacnebasdeeseowune: lum

Michigan v. Summers, 452 U.S. 692 (1981) .... 22

People v. Brown, 459 N.Y.S.2d 227 (Co. Ct.

BD cOT oda ee phen noon 6066666 0p6k600ns6b000° F

Spinelli v. United States, 393 U.S. 410

CEUOED Se cadesccncscccodenasondcecsaceseoae oe

State of New Jersey v. Schweitzer, 171 N.J.

Super. 32 (Law Div. 1979) ........ 10, 11, 16

Terry v. Ohio, 392 U.S. 1 (1968) ..........22, 25

United States v. Brignoni-Ponce, 422 U.S.

DMT LGdnghesssend sanwedeusoe guseunce 2

United States v. Place, 51 U.S.L.W. 4844

(U.S. June 21, 1983) eeeeeeeeeeeeeeeeeeeeee 24

Wise v. Murphy, 275 A.2d 205 (D.C. App.

1971) eee eeeee see eoeee e*eeeeeeeeeeeeeweeeeeee 16

CONSTITUTION AND STATUTES

New Jersey Constitution (1947), Article I,

Paragraph 7 .cssccecccccccsvvesesesessesees

New Jersey Constitution (1947), Article VI,

Section 3, paragraphs 2 and 3 ............. 12

United States Constitution, Fourth Amendment .25, 28

United States Constitution, Fifth Amendment.. 25

United States Constitution, Fourteenth

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

NO.

STATE OF NEW JERSEY,

Respondent,

JAMES H. HALL, JR.,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERWEY

JAMES H. HALL, JR. petitions for a Writ of

Certiorari to review the judgment of Su-

preme Court of New Jersey in this case.

OPINION BELOW

The opinion of the Supreme Court of New

Jersey (App. A, infra, la-38a)is reported

at 93 N.J. 552 (1983).

JURISDICTION

The jurisdiction of this Court is invoked

under 28 U.S.C. 1257(3). The opinion be-

low was issued on July 14, 1983.

STATEMENT

In the early morning hours of

February 3, 1983, an armed robbery was

alleged to have taken place in the home of

James Bailey and Louis Campanelli in

Cliffwood Beach, New Jersey. Bailey and

his girlfriend, Stacy Dillon, eventually

related the following series of events to

the police: They had just arrived at the

home when two male intruders appeared,

one white and one black. The white male

demanded that Bailey produce ten pounds

of marijuana that he believed was in the

house. Bailey explained that he did not

have the marijuana but that Michael Huff,

from whom he had purchased nine ounces of

marijuana, did have it. Bailey then

turned over the nine ounces of marijuana.

The two intruders then began an extensive

search of the home. One of them took

Bailey's wallet. The black man took

Dillon to a front room and tied her

hands. Later she was taken into the bed-

room and tied to Bailey. As the two in-

truders were leaving, one of them told

Bailey that they would return Bailey's

television and stereo when they received

money owed to them by Michael Huff. Five

minutes later, Dillon and Bailey freed

themselves and phoned Bailey's roommate,

Louis Campanelli.

After learning of the robbery,

Campanelli, Huff and two other friends

arrived at the house. Later, the police

were called. When the police arrived,

the two victims described the robbery,

but omitted to mention the drugs.

Ten days after the robbery, Detec-

tive Joseph Booket of the Aberdeen Town-

ship Police Departmert called Bailey and

Dillon and requested that they come to

the police department to assist in the

preparation of composite sketches of the

two perpetrators. (3T129-1 to 130-1,

3T198-9; 3T263-5 to 12.)2/

On April 3, 1978, Louis Campanelli

was interviewed by Detective Kenneth

Wicklund of the Aberdeen Township Police

Department. Detective Wicklund's report,

dated April 3, 1978, made in connection

with that interview, stated, ''This Hall

hold up was over a drug rip off."

Wicklund admitted that Mr. Hall was not

1/ 2T refers to the transcript of the

motion to compel defendant's participation in a

lineup; 3T refers to Volumes I and II of the trial

transcript. 6T refers to the post-trial pro-

ceedings of January 28, 1980. Da refers to the

appendix of the defendant's brief before the

Superior Court of New Jersey, Appellate Division.

a suspect at that time and that his name

was never even mentioned, but stated that

the ‘'Hall'' hold up was intended to be the

“whole” holdup. (3T508-1 to 10; 3T14-19

to 25).

In or about early April, 1978,

Michael Huff was interviewed by Detective

Booket. Huff advised Booket that the

robbery was related to a drug transaction.

At the interview, Huff viewed the compos-

ite and stated that the white male re-

sembled John Beaqnis who had left for the

State of Mississippi in a U-Haul on Febru-

ary 3, 1978, shortly after the robbery.

The police did nothing further to trace

Bennis. (3T286-22 to 288-10). Although

the police had in their possession a pho-

tograph of John Bennis (3T312), it was not

shown to Bailey or Dillon (3T288).

After interviewing Michael Huff on

April 7, 1978, Detective Booket called

Bailey and Dillon back to the police de-

partment. Bailey and Dillon then admitted

to the drug transaction. (3T290-22 to

3T291-9). Neither Bailey, Dillon nor

any of their cohorts were arrested, in-

dicted or otherwise punished under the

laws of New Jersey for their admitted

crimes.

On April 12, 1978, Louis Campanel-

li, Bailey roommate, told Detective

Booket about his involvement in a trans-

action involving ten pounds of marijuana.

Campanelli advised Booket that he had in-

formed one Dennis Miseje of the pending

transaction on January 24, 1978, (Da4-1

to 10).

In May of 1978, Detective Booket

was advised by a Detective from the Car-

teret Police Department that an informant

had seen James Hall in the company of

Dennis Miseje, and that the informant,

after observing a composite of the perpe-

trators, identified one of the persons

depicted as James Hall. (Da-4-16 to 21).

On June 6, 1978, four months after

the incident, Detective Booket requested

that Bailey and Dillon come to the police

headquarters to view a photo array con-

taining Mr. Hall's photograph. Dillon

identified a photograph of Michael Gon-

shark as "looking like" the perpetrator.

(3T56-15 to 58-10). Bailey stated that

the photograph of Mr, Hall resembled the

perpetrator, but that he was not positive.

(Da5).

The Monmouth County Prosecutor then

moved for an order compelling Mr. Hall

to appear in a lineup. In support of the

motion, the Prosecutor relied entirely on

the affidavit of Detective Booket. The

affidavit related, in pertinent part;

(1) that an alleged unidentified inform-

ant, who had not otherwise been shown to

be reliable, had identified the composite

as depicting James Hall; (2) on viewing

the photo lineup containing Mr. Hall's

photograph, Stacy Dillon could not identi-

fy the "perpetrator"; and (3) on the view-

ing the photo lineup, James Bailey stated

that Mr. Hall's photograph resembled the

white male perpetrator, but that he was

not positive, stating that the hair and \

facial hair length in the photograph was

different from that of the perpetrator.

(Dal to 5).

On November 3, 1978, Judge Merritt

Lane, Jr., of the New Jersey Superior

Court, granted the State's motion based

exclusively on the affidavit of Detective

Booket. (2T).

On January 23, 1979, at the court-

ordered lineup, Bailey and Dillon identi-

fied Mr. Hall.

The police then swore out a crimin-

al complaint against Mr. Hall. Mr. Hall

was charged with a five count indictment;

Counc I, Entering without breaking; Count

II, Robbery of goods valued at excess of

$500.00; Count III, Armed Robbery; Count

IV, Assault with a dangerous weapon; and

Count V, Possession of a dangerous weapon.

On November 5, 1979, Mr. Hall was

found guilty by a jury on Counts I, II,

III and V and found not guilty on Count

IV,

On November 14, 1979, the defense

moved for a new trial. In support of the

mocion, the defense argued, inter alia,

that Mr. Hall was deprived of his consti-

tutional rights in being forced by order

of the New Jersey Superior Court to appear

in a pre-arrest lineup. (Da20 to 21).

On January 28, 1980, the trial

judge denied the motion for a new trial.

(Da42). Mr. Hall was sentenced to State

Prison for a term of three to four years

on Count I, five to six years on Count II,

one to two years on Count III, all sen-

tences to run concurrently. Count V was

merged for sentencing purposes with Count

eee

A Notice of Appeal to the Appellate

Division of the Superior Court of New

Jersey was filed by the defense on January

3, 1980. Mr. Hall's brief charged, inter

alia, that the pre-indictment lineup vio-

lated constitutional rights and cited

State v. Schweitzer, 171 N.J. Super. 82

(Law Div. 1979), in support of that con-

tention.

State v. Schweitzer, supra, a case

decided shortly after Mr. Hall's trial,

held that the subject matter jurisdiction

of the Superior Court in criminal cases is

first established on the filing of com-

plaint on probable cause or indictment.

Finding that there exists no grant of pre-

arrest jurisdiction, the court concluded

that there was neither jurisdiction over

subject matter or the person to issue a

pre-arrest detention order. Thus, to

seek a suspect to appear in a lineup con-

stituted a "deprivation of liberty offen-

sive to due process". 171 N,J. Super. 89-

90.

On March 1, 1982, the Appellate

Division of the New Jersey Superior Court

affirmed the conviction and specifically

overruled Schweitzer. State v. Hall, 183

N.J. Super 221 (App. Div. 1981). In that

opinion, the court stated, "We are satis-

fied the judicial branch has jurisdiction

in criminal matters extending beyond the

limits of weitzer'’ and based its finding

of jurisdiction on the New Jersey Consti-

tution (1947), Article VI, Section 3, par

ragravhs 2 and 3. 183 N.J, Super 229-230.

Noting that Fourth Amendment considerations

"come into play'', the court relied on

Davis v. Mississippi, 394 U,S, 721 (1969),

to find that such a detention for lineup

purposes ''may constitute a much lesser

intrusion upon personal security than

other types of police searches and deten-

tions."' 394 U.S. at 727.

The defense filed a Petition of

Certification to the Supreme Court of New

Jersey, complaining that, inter alia, the

Appellate Division erred in extending jur-

isdiction to issue detention warrants of

less than probable cause, that its stand-

ards specifically violated the Fourth

Amendment, and that the procedure employed

did not comport with due process. Peti-

tion for Certification was granted on May

4, 1982, 91 N.J. 195 (1982).

On July 14, 1983, the New Jersey

Supreme Court affirmed the decision of the

New Jersey Superior Court, Appellate Divi-

sion. 93 N.J. 522 (1983). The New Jersey

Supreme Court held that "the Superior

Court has jurisdiction to issue a warrant

compelling a suspect to appear in a lineup

prior to the filing of criminal charges

upon a showing of less than probable

cause provided that certain evidential

standards and protective measures are

satisfied". The court concluded that pre-

arrest jurisdiction is founded on the con-

stitutional powers of the judiciary over

searches and seizures rather than, as the

Appellate Division had found, on the in-

herent powers bestowed on the courts by

the state constitution. The court refer-

enced this jurisdictional basis to the

Fourth Amendment of the United States

Constitution, and Article I, Paragraph

7 of the New Jersey Constitution (1947),

which is practically identical. Conclud-

ing that an evidential finding of probable

cause is not prerequisite to a detention

warrant, and that such a warrant, as part

of a class of identification procedures

comparable to fingerprinting, is sus-

tainable on less than probable cause, the

court proceeded to outline evidential

standards and procedural criteria. Based

solely on the standards set forth in its

opinion, the matter was then referred to

Criminal Practice Committee of the New

Jersey Supreme Court, a rule making com-

mitree, for the purposes of geuieral study,

and for recommendation of appropriate

rules and guidelines to govern these de-

tentions.

REASONS FOR GRANTING THE PETITION

1. In holding that the court has

jurisdiction to issue a criminal deten-

tion warrant to compel an individual to

appear in a lineup when the standard of

probable cause has not been met, the New

Jexsey court has brought judicial involve-

ment to an area historically delegated

to the executive branch of government.

Traditionally, it has been the function

of the police to investigate criminal mat-

ters and the courts to determine whether

the investigation has matured to the point

where an arrest or search is appropriate.

Judicixl intervention would commence where

there were allegations to support probable

Cause to search or arrest. By virtue of

an expanded pre-probable cause jurisdic-

tion, the court is lending its authority

to the early stages of an investigation,

and thus functioning as investigatory po-

lice. The danger thus arises that the ju-

diciary would lose its detachment and its

Capacity to act as an impartial forum for

the protection of constitutional rights.

See Schweitzer, supra, at 90, and Wise v.

Murphy, 275 A.2d 205 (D.C. App. 1971) at

anh

The New Jersey court makes no re-

quirement that a prio hearing be he1d, 2/

2/ Although the Davis Court notes that

there should be judicial authorization prior to a

prearrest detention for fingerprinting, the scope

The detention warrant may be procured on

an ex parte application and based entirely

on the hearsay affidavit of a police of-

ficer. As no prior hearing is afforded

although judicial authorization is in-

volved, the practical effect of the de-

tention is simultaneously to broaden po-

lice power and to minimize the signifi-

cance of judicial review as affording pro-

tection to citizens' basic consitutional

rights.

‘ihe New Jersey court rationalizes

its jurisdiction by analogizing a deten-

tion warrant to a search warrant, rea-

soning that, as with a search warrant,

its jurisdiction over a pre-arrest lineup

is conferred by the Fourth Amendment to

the United States Constitution and its

of the judicial review is never expounded. (394

U.S. at 727).

New Jersey equivalent. Paradoxically, the

New Jersey court fails to complete the

analogy it suggests, creating a detention

procedure and according itself jurisdic-

tion on less than probable cause. The

court explains that this pre-probable

cause jurisdiction would permit a "Ssal-

utary review of police action" while

affording constitutional protections to

individuals. However, the review can

hardly be deemed salutary as it deprives

a citizen of his liberty on less than

probable cause, without a hearing, with-

out an indictment or accusation, without

the right to bail or counsel, and without

Miranda rights. Rather than adding con-

stitutional protections, the pre-arrest

jurisdiction eviscerates the Fourth Amend-

ment, expanding the police power and ren-

dering the Warrant Clause completely

meaningless.

2. The New Jersey court reasons

that a finding of probable cause is not

prerequisite to a pre-arrest lineup de-

tention by virtue of Davis v. Mississippi,

supra. The Davis Court observed that

".,. because of the unique nature of the

fingerprinting process, such detentions

might, under narrowly defined circumstan-

ces, be found to comply with the Fourth

Amendment even though there is no probable

cause in the traditional sense." 394 U.S.

at 727. However, the Davis Court distin-

guished a lineup detention from a deten-

tion for fingerprinting. The Court noted

the scientific value of fingerprinting, a

process “inherently more reliable and

effective than eyewitness identifica-

tions.'' which, unlike a lineup, is em-

ployed outside of a criminal investigation

as well, and may not be employed repeated-

ly or for the purposes of harrassment.

394 U.S. at 726-727.

The New Jersey court refers to

United States v. Wade, 388 U.S. 218 (1967),

to support the value of a lineup as a pro-

tection against abuses and unfairness.

Wade, however, addressed the right to

counsel at a lineup held after an arrest

based on probable cause, unlike Hall,

which deals with a pre-arrest, pre-indict-

ment and pre-bail detention. The court

below also fails to appreciate the abhor-

rence for lineups expressed in Wade:

"...(t)he confrontation com-

pelled by the State between the

accused and the victim or wit-

nesses to a crime to elicit iden-

tification evidence is peculiar-

ly riddled with innumerable dan-

gers and variable factors which

might seriously, even crucially,

derogate from a fair trial.

++» Moreover, ‘'(i)t is a mat-

ter of common experience that,

once a witness has picked out

the accused at a lineup, he

is not likely to go back on

his word later on, so that in

practice the issue of identi-

ty may (in the absence of

other relevant evidence)

for all practical purposes

be determined there and

then, before the trial."

388 U.S. at 228-229,

In formulating its decision, New

Jersey court distorted the holdings of

Terry v. Ohio, 392 U.S. 1 (1968), and its

progeny. Terry held that where a police

officer observes unusual conduct which

leads him to reasonably conclude that

criminal activity may be afoot, and that

the persons may be armed and presently

dangerous, and where on making inquiry,

nothing serves to dispel his reasonable

fear for his own or others' safety, he

may conduct a limited pat down search for

weapons. The Terry Court expressly de-

clined to address "the constitutional pro-

priety of an investigative 'seizure' upon

less than probable cause for purposes of

‘detention’ and/or interrogation." 392

U.S. at 19, n.16. However, in Dunaway

v. New York, 442 U.S. 220 (1979), the

Court emphatically rejected any standard

short of probable cause for an involuntary

custodial interrogation. 442 U.S. at 216.

In United States v. Brignoni-Ponce,

422 U.S. 873 (1975), border stops on the

basis of "reasonable suspicion" were per-

mitted because of the special interest of

the federal government in immigration con-

trol. By contrast, the governmental in-

terest in the case at bar is the general-

ized police interest of the State, while

the intrusion is an extended seizure ra-

ther than a mere stop.

In Michigan v. Summers, 452 U.S.

692 (1981), the Court authorized a limited

detention of occupants while a search of

the premises was conducted pursuant to a

valid search warrant issued on the basis

cf traditional probable cause. The Court

reasoned that where evidence is sufficient

to establish probable cause to search, it

is constitutionally reasonable to require

that individuals remain while officers

execute the search. 452 U.S. at 704-705.

The case at bar is distinguished from

Summers by the lack of probable cause.

Furthermore, the stated purposes of the

Summers detention were to prevent flight,

minimize harm, and facilitate the orderly

completion of the search. 452 U.S. at

702-703. Those interests are not present

in Hall. In fact, a pre arrest detention

warrant may serve to encourage flight. If

an individual served with an order to ap-

pear in a lineup should flee, he cannot be

extradited from another jurisdiction be-

cause probable cause is absent.

The holding below is inconsistent

with United States v. Place, 52 U.S.L.W.

4844 (U.S. June 21, 1983). In Place, the

Court held that an extended (ninety min-

ute) detention of luggage to a narcotics

detecting dog was unreasonable. The Court

stated that the limitations applicable to

Terry precluded the detention. 52 U.S.L.W.

at 2847, As the intrusion in Hall is far

greater, involving the detention and ex-

tended seizure of a citizen, the rationale

of Place would likewise preclude it.

3. The "evidential standards"

offered by the New Jersey court fail to

satisfy Fourth Amendment requirements.

The first standard, that the police must

show "that the crime has occurred, is un-

solved, and is under investigation" mere-

restates that the lineup is being conduc-

ted as past of the investigation of a

crime. This standard falls short of the

special reasons which were required to

substantiate even the mre stops of United

States v. Brignoni-Ponce, supra, (govern-

mental interest in border searches) and

Terry v. Ohio, supra, (reasonable suspi-

cion that criminal activity is afoot).

Secondly, that the police must

demonstrate a ''reasonable and well-ground-

ed basis to believe that the individual

sought may have committed the crime" is

invalid on Fourth Amendment grounds and

unconstitutionally vague on Fourteenth

Amendment due process grounds. In Illi-

nois v. Lance Gates, 51 U.S.L.W. 4709

(U.S. June 8, 1983), the Court notes:

"... it is clear that only the probabil-

ity, and not a prima facie showing of

criminal activity is the standard of

probable cause." 51 U.S.L.W. at 4715,

quoting Spinelli v. United States, 393

U.S. 410 (1969) at 419. However, the

standard that the New Jersey Court sug-

gests, as applied, deals not with proba-

bilities, but with mere speculation.

The warrant in the case at bar was issued

although neither subject identified Mr.

Hall's photograph. The suggested stand-

ard obviously permits the police to detain

numbers of citizens while allegedly seek-

ing a single perpetrator. As rights to a

hearing, Miranda warnings, and bail are

denied, this procedure effectively strips

a citizen of his own constitutional rights

on the barest of allegations.

The third evidential standard pos-

ited by the New Jersey court requires a

showing that the “results of the detention

will significantly advance the investi-

gation and serve to determine whether or

not the suspect probably committed the

crime.'' However, because of the suggesti-

bility of a lineup, as well as the risk of

mistaken identification, the results may

improperly advance the investigation. In

Davis and Wade, the Court warns that a

lineup is an unreliable, unscientific pro-

cedure. Repeated viewing of an individual

or his photograph may suggest his identity,

See People v. Brown, 459 N,Y,S.2d 227 (Co.

Ct. 1983). As the officer conducting the

lineup is generally convinced that the in-

dividual is in fact the perpetrator, there

is added suggestion. >/ Therefore, to com-

3/ The suggestibility of the procedure can

be no better demonstrated than by the case at bar.

Mr. Hall's face was the only one common to both

lineups. The bias of the police is clear from

their failure to pursue the stronger lead, from

the false information in Detective Booket's affi-

Gout, and trom the Suspicious areution of Tha

“Wall ee (et Qe €a/y fetice report

pel an individual to appear in a lineup

based on mere speculation, with no prior

hearing or Miranda warnings, defies the

Fourth, Fifth, and Fourteenth Amendments.

The fourth evidential standard sug-

gested by the court below is "that the

results cannot otherwise practicably be

obtained.'' The New Jersey court thus re-

quires a showing that, as to the indivi-

dual involved, the investigation would,

as a practical matter, be terminated un-

less the procedure were employed. The

court below noted that the procedure em-

ployed at the matter at bar comported with

its standards, i.e.,, the investigation, as

to Mr. Hall, would have terminated had

this procedure not been employed. It

therefore follows that unless the proce-

dure is justified, the conviction would ©

not stand. This is also implicit from the

fact that Certification to the New Jersey

Supreme Court was granted on the issue of

the validity of the pre arrest lineup pro-

cedure alone. Therefore, if the procedure

is unjustifiable, nothing can purge the

initial taint. As the fruits of improper

procedures are excluded because of con-

stitutional improprieties, this practicalk

per se procedure, involving constitutional

improprieties, cannot be justified, and

its fruits are necessarily tainted,

CONCLUSION

In its opinion below, the Supreme

Court of New Jersey introduces a practi-

cally per se procedure whereby a citizen

can be compelled to submit to a lineup

prior to arrest, indictment, accusation,

or the filing of a criminal complaint

against him. The procedure is sustain-

able on "less than probable cause,"

which, as applied, requires little more

than the barest speculation.. The citi-

zen is afforded no Miranda warnings,

and no rights to bail. Prior to the

detention, the citizen is afforded no

hearing in which he may confront or

crossexamine his accusor, so that, as

a practical matter, there is no way of

determining whether any evidential

standard has been met. Clearly, the

procedure does not meet constitutional

requirements, and a conviction based

thereon cannot stand.

The petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

ond Nad cle

wre

STUART SURICK, ESQUIRE

Attorney for Petitioner

3735 Lawrenceville Road

| Princeton, New Jersey

APPENDIX A

SUPREME COURT OF NEW JERSEY

A-48 September Term 1982

STATE OF NEW JERSEY

Plaintiff-Respondent, :

Vv.

JAMES H. HALL, JR.

Defendant-Appellant.

—— Decmeber 7, 1982 -- Decided

July 14, 1983.

On certification to the Superior

Court, Appellate Division, whose

opinion is reported at 183 N.J.

Super. 224 (1982).

Stuart Surick argued the cause

for appellant.

Debra L. Stone, Deputy Attorney

General, argued the cause for

respondent (Irwin I. Kimmelman,

Attorney General of New Jersey,

attorney).

The opinion of the Court was de-

livered by HANDLER, J.

The issue presented by this appeal

is whether the Superior Court had juris-

diction and adequate grounds to compel

the defendant to submit to a lineup prior

to his arrest or the filing of any charges

against him. We now hold that the Su-

perior Court has jurisdiction to issue

process compelling a suspect to submit

to a lineup prior to the filing of

criminal charges upon a showing of less

than probable cause, provided certain

evidential standards and protective pro-

cedures are satisfied.

In the early morning hours of Feb-

ruary 3, 1978 an armed robbery took place

at the home of James Bailey, in Cliffwood

Beach, New Jersey. Bailey and his girl-

friend, Stacey Dillon, had just arrived

at the home when two male intruders a,-

peared, one white and the other black.

The white male demanded that Bailey pro-

duce ten pounds of marijuana that he

believed was in the house. Bailey ex-

plained that he did not have the mari-

juana, but that Michael Huff, from whom

he had purchased nine ounces of marijuana,

had the contraband.

After Bailey turned over the nine

ounces of marijuana that he did possess,

the intruders began an extensive search

of the home. They cut wires from several

stereo components, ripped a television from

its casings and tore a telephone from the

wall. At this time one of the intruders

also took Bailey's wallet. The black man

then took Dillon into a front room and

tied her hands. Later she was taken into

the bedroom and tied to Bailey. As the

intruders were leaving, one of the men

told Bailey that they would return Bailey's

television and stereo when they received

money owed to them by Michael Huff.

Dillon and Bailey freed themselves

and telephone the latter's roommate,

Louis Campanelli. They did not immediate-

ly call the police because the incident

involved drugs. After learning of the

robbery, Campanelli, Huff and two other

friends arrived at the house. The police

were then called. When the police ar-

rived, the two victims gave complete de-

scriptions of the intruders.

Subsequent police investigation of

the episode revealed that the defendant,

James H. Hall, Jr., might have been one of

the intruders. A week after the robbery

Detective Joseph Booket of the Aberdeen

Township Police Department called the vic-

tims and requested that they come to po-

lice headquarters to assist in the pre-

paration of a composite sketch of the two

perpetrators. Dillon, who had been able

to observe the white intruder from a dis-

tance of five feet during the robbery,

was unable to identify defendant from a

series of photographs of potential sus-

pects. Bailey made an equivocal identi-

fication of defendant's photo, noting

that he could not be absolutely sure be-

cause the man's hair in the photo was a

“lot shorter" than it was on the night

in question. Based upon this tentative

identification, the Monmouth County pro-

secutor moved for an order compelling de-

fendant to appear in a lineup. Over de-

fendant's objections and following a hear-

ing, the trial court granted the motion

and scheduled a lineup. }

After viewing the court-ordered

lineup, Dillon twice identified defend-

ant as one of the men who robbed her.

Bailey also viewed the lineup and posi-

tively identified defendant. Immediate-

ly after the lineup the police swore out

a criminal complaint against Hall. De-

fendant was charged in a five-count in-

dictment with entering with intent to

steal, robbery of goods valued in excess

of $500, armed robbery, assault with an

1 Prior to the lineup, a man entered

Bailey's place of employment looking for Bailey.

A co-worker advised Bailey that the man had asked

for him on a previous occasion. Bailey followed

the man outside and saw him walk to a car in

which defendant was sitting. Defendant excited

the car and exclaimed "Jimmy (Bailey), I never

saw you before in my life. I didn't do it. Do

you know how many guys look like me...?" Bailey

responded by shaking his head.

offensive weapon, and possession of a

dangerous weapon.

Defendant was found guilty by a

jury on all counts with the exception

of assault with a deadly weapon. There-

after defendant moved unsuccessfully for

a new trial, arguing that the court-ordered

lineup was improper and that the jury ver-

dict was tainted. The Appellate Division

affirmed the convictions. 183 N,J. Super.

224 (1982). The Court granted the peti-

tion for certification limited to the is-

sue of the validity of the order compelling

the lineup. 91N,J. 195 (1982).

Defendant challenges the juris-

diction of the trial court to issue an

order compelling an unarrested and un-

charged suspect to appear for a lineup.

He relies upon State v. Schweitzer, 171

N.J. Super. 82 (Law Div. 1979), which

held that the Superior Court lacked juris-

diction to subject an individual to a pre-

charge or pre-arrest detention. In its

decision below the Appellate Division ex-

pressly overruled Schweitzer, finding un-

tenable its "parochial view that both

subject matter and personal jurisdiction

in the judicial branch are marked at their

extremities by the indictment and the im-

position of sentence." 183 N.J. Super. at

228. The Appellate Division ruled that

under N.J. Const. (1947), Art. VI, 8 III,

pars. 2 and 3? the Superior Court posses-

sed jurisdiction over criminal matters

2 Art. VI, 8 III, par. 2 provides: "The

Superior Court shall have original general juris-

diction throughout the State in all causes."

Art. VI, 8 III, par. 3 provides in perti-

including ordering ordering a suspect to

appear for a lineup. Id. at 229.

We concur with the Appellate Divi-

sion's conclusion that the State and fed-

eral constitutions authorize the judiciary

to order a lineup in these circumstances.

We determine, however, that the juris-

diction of a court to issue process

authorizing a pre-charge or pre-arrest

detention in conjunction with a criminal

investigation is founded on the judici-

ary's constitutional powers over searches

and seizures. N.J. Const. (1947), Art.I,

par. 7 and U.S, Const,, Amend. IV.

2 (cont'd)

nent part; "Each division (of the Su-

perior Court) shall. . . hear such causes, a6

may be provided by rules of the Supreme Court."

3 The language of these State and federal

constitutional provisions is nearly identical.

N.J. Const. (1947), Art. I, par. 7 provides:

10a

We believe that an application to

detain a suspect for the purpose of con-

ducting a lineup must be considered as

"the functional equivalent of an appli-

cation for( ) issuance . .. of a search

warrant." In re Fingerprinting of M.B.,

125 N.J. Super. 115, 122 (App. Div. 1973)

(application for an order compelling fin-

3 (cont 'd)

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall

not be violated; and no warrant shall issue ex-

cept upon probable cause, supported by oath or

addirmation, and particularly describing the

place to be searched and the papers and things

to be seized.

U.S. Const., Amend. IV reads;

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall

not be violated, and no warrants shall issue,

but upon probable cause, supported by Oath or

affirmation, and particularly describing the place

to be searched, and the persons or things to be

seized.

lla

gerprinting of an entire class of public

school students during a criminal investi-

gation); see also In re Morgenthau, 188

N.J. Super. 303 (App. Div. 1983); State

v. Foy, 146 N.J. Super. 378 (Law Div.

1976), app. dism. 153 N.J. Super. 503

(App. Div. 1977); Matter of Abe A., 56

N.Y. 2d 288, 437 NE, 2d 265, 452 N.Y.S.

2d 6 (N.Y. 1982) (judicial authority to

compel investigatory detention rests on

court's power to issue search warrants) ;

People v. Marshall, 244 N.W. 2d 451 (Mich.

Ct. App. 1976) (same); cf., Wise v. Murphy,

275 A. 2d 205 (D.C. 1971) (court's power to

issue investigatory process rests on stat-

utory authority); State v. Grijalva, 533 P,

2d 533 (Ariz. 1975), cert. den. sub nom,

Grijalva v. Arizona, 423 U.S. 873, 96 S.Ct.

141, 46 L.Ed. 2d 104 (1975) (court's jur-

isdiction over pre-arrest detentions based

l2a

on statutory authority). An individual

who must submit to a lineup is detained

by the police and visually examined by

crime victims or witnesses. Because such

a detention, like a search, invades an in-

dividual's privacy and, like any seizure

or arrest, restrains personal liberty,

the constitutional interests upon which

investigatory detentions and convention-

al searches and seizures may intrude are

similar. Davis v. Mississippi, 394 U.S.

721, 726-27, 89 S.Ct. 1394, 1397, 22 L.Ed.

2d 676, 680-81 (1969); see also Terry v.

Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879,

20 L.Ed. 2d 889, 904 (1968); United States

v. Place, 51 U.S.L.W. 4844, 4847 (U.S.

June 21, 1983). Further, the purpose of

investigatory detentions is similar to

that of conventional searches and seiz-

ures. They are undertaken to advance the

13a

investigation of criminal cases. Addi-

tionally, judicial supervision of the

criminal process in the investigatory

stages of a prosecution, just as in the

accusatory phases, permits a salutary re-

view of police actions and protects the

constitutional rights of citizens who

are suspects in criminal investigations

or otherwise embroiled in the criminal

process. See generally United States v.

Wade, 388 U.S. 218, 87 S.Ct. 1926, 18

L.Ed. 2d 1149 (1967); compare Kirby v.

Illinois, 406 U.S. 682, 92 S.Ct. 1877,

32 L.Ed. 2d 411 (1972). These consid-

erations lead us to consider and treat

such investigatory detentions as searches

or seizures within the scope of the Fourth

Amendment and the State Constitution. Re-

garded as a search or seizure, investi-

detentions are properly within the juris-

l4a

diction of the judiciary to ensure they

are reasonable.

In sum, we hold that the Superior

Court has jurisdiction to authorize in-

vestigative detentions. This power to

authorize investigative detentions is

properly founded upon the judiciary's

constitutional authority governing search

and seizures, N.J. Const. (1947), Art. I,

par. 7 and U.S, Const., Amend. 1v,4

Although this constitutional basis for

jurisdiction is different from the constitutional

basis relied upon by the Appel‘ate Division be-

low, it does not conflict with the Appellate Di-

vision determination. The Appellate Division re-

lied on N.J. Const. (1947) Art. VI @ III, pars.

2 and 3. This analysis recognizes that once ju-

risdiction is established to authorize a pre-

arre3t or pre-charge lineup, such jurisdiction

rests with the Superior court. Both views are

consistent with other decisions that recognize

that a court's jurisdiction over the administra-

tion of criminal justice is pervasive. E.g.,

State v. Williams, 93 N.J. 39 (1983); State v.

Leonardis, 73 N.J. 360 (1977); State v. Leonardis,

71 N.J. 85 (1976); see State v. Goodman, 92 N.J.

43 (1983); State v. Robinson, 148 N.J. Super.

278 (App. Div. 1977).

l5a

When this jurisdiction is invoked, it

triggers the judicial responsibility to

assess the need advanced by law enforce-

ment for such procedures and to protect

the rights of individuals to be free from

unreasonable searches and seizures.

III

We next consider whether the con-

stitutional rights of individuals against

unreasonable searches and seizures are

adequately protected by investigatory de-

tentions that are judicailly authorized

upon less than probable cause and whether

certain procedures must be followed in

conducting such detentions. In its opin-

ion below, the Appellate Division observed

that a court-compelled lineup consti-

tuted a less severe intrusion upon priva-

cy interests than a conventional search

l6a

or seizure and that such a personal lineup

could be authorized where "'the State has

established a well-founded suspicion of

sufficient weight to justify compelling

(a criminal suspect) to submit to an in-

person line-up.'"' State v. Hall, supra,

183 N.J. Super. at 231 (quoting from trial

court decision granting state's motion to

compel lineup). Other decisions in this

jurisdiction have similarly approved com-

parable investigatory detentions on less

than probable cause. See In re Finger-

printing of M.B., supra (fingerprinting) ;

see also State v. Bradshaw, 170 N.J. Su-

per. 527 (App. Div.), certif. den., 82

N.J. 276 (1979) (lineup); State v. Foy,

supra (lineup).

Our consideration of the requi-

site standards to be applied in this area

focuses on the Supreme Court's decision

17a

in Davis v. Mississippi, supra. There the

Supreme Court considered whether finger-

prints taken from a defendant in the

course of an investigatory detention con-

ducted on less than probable cause were

admissible in eviden-e. It observed that

a . because of the unique nature of

the fingerprinting process, such deten-

tions might, under narrowly defined cir-

cumstances, be found to comply with the

Fourth Amendment even though there is no

probable cause in the traditional sense."

394 U.S. at 727, 89 S.Ct. at 1397098, 22

L.Ed. 2d at 681 (citation omitted). The

Court went on to describe the salient fea-

tures of an investigatory detention for

the purpose of fingerprinting.

Detention for fingerprinting may

constitute a much less serious

intrusion upon personal securi-

ty than other types of police

searches and detentions. Fin-

18a

gerprinting involves none of

the probing into an individu-

al's private life and thoughts

that marks an interrogation or

search. Nor can fingerprint

detention be employed repeat-

edly to harass any individual,

since the police need only one

set of each person's prints,

Furthermore, fingerprinting

is an inherently more relia-

ble and effective crime-solv-

ing tool than eyewitness

identifications or confessions

and is not subject to such a-

buses as the improper line-up

and the "third degree." Fi-

nally, because there is no

danger of destruction of

fingerprints, the limited

detention need not come un-

expectedly or at an inconven-

ient time. For this same

reason, the general require-

ment that the authorization

of a judicial officer be

obtained in advance of de-

tention would seem not to

admit of any exception in

the fingerprinting context.

(Id. at 727-28, 89 S.Ct. at 5

1398, 22 L.Ed. 2d at 681)

The Supreme Court in Davis did not

actually decide whether "procedures for obtain-

ing, during the course of a criminal investiga-

19a

Our reading of Davis convinces us

that for certain detentions -- those that

do not entail significant intrusions

upon individual privacy or freedom, are

productive of reliable evidence, and can

be effectuated without abuse, coercion or

intimidation -- ''no probable cause in the

traditional sense" is necessary in order

to obtain the “authorization of a judi-

cial officer(,)"' We conclude that, under

a "narrowly defined'' set of circumstances,

such detentions can be constitutionally

permissible. Davis, 39 U.S. at 727-28,

89 S.Ct. at 1398, 22 L.Ed. 2d at 681.

Strictly limiting the circumstances

under which such detentions take place

insures that the restrictions upon in-

5 (cont'd)

tion, fingerprints of individuals for whom there

is no probable cause to arrest" could pass muster

under the Fourth Amendment.

20a

dividual privacy and freedom interests

are minimized so that a showing of need

upon less than traditional probable cause

can be tolerated. See United States v.

Place, supra, 51 U.S.L.W. at 4846 (mini-

mally intrusive detention can be supported

on less than probable cause); Terry v.

Ohio, supra, 392 U.S. at 27, 88 S.Ct. at

1883, 29 L.Ed. 2d at 909 (permitting

police to conduct "stop and frisk" upon

less than probable cause); Michigan v.

Long, 51 U.S.L.W. 5231 (U.S. July 6, 1983)

(permitting police to conduct protective

search for weapons in passenger compart-

ment of car upon less than probable cause);

cf. Camara v. Municipal Court, 387 U.S.

523, 87 S.Ct. 1727, 18 L.Ed. 2d 930 (1967)

(permitting search upon probable cause

determined by administrative standards).

2la

We accordingly conclude that an

evidential finding of probable cause to

believe that a particular individual has

committed a crime is not an absolute pre-

requisite for judicial authorization of

an investigatory detention. We are satis-

fied that a court has jurisdiction to

authorize an investigatory detention under

the following limited circumstances. The

court's authorization of an investigatory

detention must, first, be based upon suf-

ficient evidence to demonstrate that a

particular crime has occurred, that the

crime is unsolved and that it is under

active investigation. Second, the police

must demonstrate a reasonable and well-

grounded basis to believe that the indi-

vidual sought as the subject of the in-

vestigative detention may have committed

the crime under investigation. Addition-

22a

ally, it must be shown that the results of

the detention will significantly advance

the criminal investigation and will serve

to determine whether or not the suspect

probably committed the crime. Further,

it must also appear that these investiga-

tive results cannot otherwise practicably

be obtained. °

6 These standards, in some ways, parallel

those adopted in the American Law Institute's

Model Code of Pre-Arraignment Procedure Art. 170,

Order to Appear for Identification Procedures

(1975). With respect to “identification pro-

cedures," Section 170.2(6) provides:

Basis for Issuance.

The authorized official shall

issue a nontestimonial identification or-

der only if he finds that the application

meets the requirements of this Section

and that, on the basis of the proceedings

before him;

(a) there is reasonable cause to

believe an offense specifically de-

scribed in the application has been

committed;

(b) there are reasonable grounds to

suspect that the person named or de-

23a

In addition to these evidential

Standards that serve to limit the circum-

stances under which investigatory deten-

tions may be judicially authorized without

probable cause, we recognize that appro-

priate procedures must be fashioned to

assure that the intrusiveness of the de-

tention is properly circumscribed. In-

vestigatory detentions can involve dif-

6 (cont'd)

scribed in the affidavit may have

committed the offense and it is

reasonable in view of the serious-

ness of the offense to subject him

to the specific identification pro-

cedures set forth in the application.

identification procedures will be

of material aid in determination

whether the person named in the

affidavit committed the offense;

and,

(d) such evidence cannot practica-

bly be obtained by the investiga-

ting officer from law enforcement

agency or other public official

or agency.

24a

ferent kinds of evidence-gathering pro-

cedures with differing degrees of intru-

siveness. The Supreme Court in Davis

emphasized that a detention to permit

fingerprinting constituted a limited in-

trusion into a person's liberty and pri-

vacy because fingerprinting did not

"prob(e) into an individual's private life

and thoughts."' A detention for finger-

printing was also regarded as essentially

a reliable, simple and expeditious pro-

ceeding that could be conducted fairly

and without palpable abuse. Davis, supra,

394 U.S. at 727, 89 S.Ct. at 1398, 22

L.Ed. 2d at 681. Accordingly, we conclude

that those identification procedures that

are comparable to fingerprinting will be

sustainable upon a showing of less than

traditional probable cause.’

‘ We believe that certain types of proce-

25a

In this case, we think that a

lineup for the purpose of securing an

identification of the criminal suspect

can be conducted in conformity with such

standards and likened to the fingerprint-

7 (cont'd)

dures constitute intrusions that are signifi-

cantly different from the fingerprinting process,

see United States v. Dionisio, 410 U,S, 1, 14-15,

93. S.Ct. 764, 771-72, 35 L.Ed, 2d SE 79-80

(1973) _ (dist inguishing blood s. samples from voice

or handwriting exemplars and fingerprinting),

and would not satisfy the rationale in Davis.

The range of such procedures that can be con-

ducted during an investigatory detention is of-

fered by ALI, Model Code of Pre-Arraignment

Procedures 8 170,12(2), which provides;

Definition of "Identification Procedures."

As used in this Article "identification

procedures" shall mean

(a) procedures to obtain identi-

fication by fingerprints, palm prints,

‘footprints, body measurements, dental

impressions, or other reasonable body

surface examinations;

(b) procedures to obtain speci-

mens or samples of blood, urine, sali-

va, hair or fingernails, or other

bodily substances that can be obtained

26a

ing process. The lineup involves no

creative or unusual act on the part of

the suspect; it involves only a display

of evidence that is otherwise publicly

visible, See Katz v. United States,

389 U.S. 347, 351, 88 S.Ct. 507, 511, 19

L.Ed. 2d 576, 582 (1967). In this regard

the lineup does not "prob(e) into an in-

dividual's private life and thoughts."

Davis, supra, 394 U.S. at 727, 89 S.Ct.

at 1398, 22 L.Ed. 2d at 681. Furthermore,

the lineup, when properly conducted, can

protect against abuse and insure fairness.

7 (cont'd)

by comparable methods;

cation material that may be on the sur-

face of the body or under fingernails or

that can be obtained by comparable me-

thods; and

(d) procedures to obtain witness

identification through lineups, photo-

graphs, voice samples or handwriting

exemplars.

27a/

See United States v. Wade, supra. When

conducted properly and fairly the proce-

dure can furnish reliable evidence and

can often be an effective crime-solving

tool. Id.; see also State in the Interest

of W.C., 85 N.J. 218 (1981). Finally,

the lineup procedure can be accomplished

at a convenient time and need not entail

a restrainst upon the suspect for an un-

duly long period of time.

In order to safeguard constitution-

al interests and secure the overall rea-

sonableness of such nontestimonial identi-

fication procedures, the conduct of in-

vestigatory detentions must be carefully

circumscribed by other procedural pro-

tections. Davis v. Mississippi, supra,

394 U.S. at 728, 89 S.Ct. at 1398, 22

L.Ed. 2d at 681. (implying that require-

28a

ments of the Fourth Amendment could be

met by narrowly circumscribed procedures) ;