Brief in Opposition to Petition for Writ — Gorsuch v. Provident Security Life Insurance

Otfice-Supteme Court, U.S.

FILED ;

14 1%4

| _JOHN F. DAVIS, CLERK |

‘IN THE

tems Go i ah as | aie

* Octonzn Tana, 1963 -

No. 742. a

HARRY KAISER and SU BAN. KAISER,

< ere,

v8.

THE ‘sTaTE oF NEW JERSEY, . -

Respondent.

—

ND. APPENDIX iN OPPOSITION TO PETITION -

-FOR WRIT OF CERTIORARI TO THE SUPREME COUR URT

OF NEW — :

a Guy W. Caisst,

- Bergen County Prosecutor,

Attorney for and of Counsel with

Respondent, The State of New =

- Jersey,

- Court House, Annex,

Hackensack, New Jersey.

=

vara <6

OLD eae

VA, Mores yortentns

TABLE OF CONTENTS .

— wenere to Orricia Reports oF OPINIONS

DELIvBRED IN, THE COURT BELow Peete yee eee

IJ —CounTER- “STATEMENT CONCERNING J URISDICTION .

Counrer-Questions PiReeseNTED. eee P ee eee anks

I11—Cov NTER-STATEMENT OF THE CASE...-.--- pees

IV _—Tur ARGUMENT .. Pee rik ee enkhes Spey Fe

@

CONCLUSION, Toate ee Ser ke ye Pee enees errr ty ee

APPENDIX:

Excerpts from. Argument on Application for

Stay of Execution of Sentence Pending Ap-

peal of the Bergen County Court, Caw Divi-

sion (June 23, OOUEN ok so eke ces evn t fone oe:

: Cases Cited .

‘ed v. United States ex rel “MeCann, 317 U, S. 269

(1942). ....- er eretanben star ntas sepa weahnch see

Alexander v. United States; “290 F. aa 252 (Sth Cir.

cl errr eee ped 5 Seis ke Se NI FEE idee -

Byars v. United States, 273 U.S. 28 (1927). esas

Carter v. People of State of Lllingis, 399 U.S. 173,

67 S. Cf. 216, 91 L. Kad. 172 eee ee eee

- Chovez v, Dickson, 280 F. 94 727 (9th C ir. 1960), cert.

den., 364 U.S. 934 (1961) Rte ee eye PE ee

Chery v. Bolger, 341 U. S. 392 snags cn eneeeceee ;

al

a

~j

- +

S

————

eM h ose sf ecto TABLE OF CONTENTS.

} ; PAGE ©

Commonwealth -y. Myers, 199 Pa: Super 341, 465 =O,

A. 2d 806 (Super. Ct. 1962)... gees EF er rree cone O

Daniels v, Allen, sub nom. Braum‘y. Allen, 344 U. S. :

433 son senesceneree’s tr sh ehereoosssvs essen ooeese 6

Dirring, Petition of, 183 N. E. 2d 301 (Sup. Jud. Ct.

-* Mass, 1962).....- secstaee SEA ONE eee pity 6

Harris, In re, 366 P. 2d 305, 16 Cal. Rptr. 889 (Sup. °

Ok: WE) 2300052, Tee Peo ee ae

Janiec-v. McCorkle, 52 -N..J. Super. 1 (App. Div. - |

a) re ee et A een erect oe

Jones‘ v, Attorney General of the United States, 278 —

F. 2d 699 (8th Cir. 1960).............. ee ee 6

“Mapp v. Ohio, 367 U: S. qf, decided on June 19, 1961,

and June 28, 1961... /. Senn el op a Core . 2-6

Milk Wagon Drivers’ Union of Chicago, Loeal 753

v. Meadowmoor Dairies, Ill., 312 U. S. 287, 61-S. |

Ct. 552, 95. L. Ed,.836 (1941)... .- eee eee eee x,

° : i

Moore v. State, 146 Se- 20734 (Ct. App. Ala. 1962)... * 6°

"People v. Loria. 10 N. ¥. 2d 368, 223 N.Y. S. 2d 462,

179 N. E, 24.478 (Ct. App. 1961) ......0. 0005000 4,5 -

People v. Muller, 11 N. Y. 2d 154, 227 N.Y. S. 2d

491, 182 NCE. 2d 99 (Ct. App. 1962), cert. den., 371”

PUR ier es cr es aes caeetee

> . . . 6

Robilotto, In re, 24 N. J. Super. 209 (App. Div. 1953) 6

6

State -v. Jenkins, 32 N. J. 109 (1960).......-...-64-

State y. Smith, 37.N. J. 481 (1962).2...2.. 6. abees 4,5 -

“State v. Valentin, 36 N. J. 41 (1961)........5.. ieee

Sunal v. Large, 332 . S. 174 (1947)......... epee 6

9

i ‘ of

De TABLE OF CONTENTS” “~

i “ Mg ens ; ‘ - PAGE

United . States v. Zavade, 291 F. 2d 189 (6th Cir.

Young v. Ragen, 337 U. S. 235, 69 S. Ct. 1073, 93

Leh erase

Ge Rules Cited |

i Roe ee ee

SE S400 ioe anes ae a,

‘ent

IN THE

- Supreme Court of the United States

Ocroser .Term, 1963

a /

tr ' e

e

acl Harry WNaiser and. Susan Kaiser,

> % Petitiomers,

| , rs.

THE Srate Or New JERSEY,

Respondent.

S

‘ BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

seereaaitaaaaiar” TO THE SUPREME COURT OF

e New JERSEY ~

Reference to Official Reports of Opinions

Delivered in the Court Below ©

_ The petitiqners* referenéy to the opinions below is cor-

rect. - - ee Sey

-

Counter-Statement Concerning Jurisdiction

We respectfully submit that the decision of ihe Superior

Court of New Jersey, Appellate Division, 74 N. J. Super.

257, 181 A. 2d 184, involved no State statute repugnant to .

~ the Constitution of the United States; notitle, right, privi-:

lege, or.immunity was specially set up orclaimed under the

Constitution of the United States, nor did the-said Court.

decide any federal question of substance not heretofore de-

termined by this Court or contrary to the applicable de-

cisions of. this Court. —. |

We respectfully submit that the deeision of the Superior

Court of New Jersey, Appellate Division, 80 N. J. Super.

176, 193 A. 2d 270, rests’ on well settled uon-federal’ pro- - -

- cedural grounds and therefore, involves no right, privilege

or immunity under the Constitution of the United States.

We further respectfully submit that the decisions below

are in conformity with the provisions of the Federal Con-

stitution and represent no departure from the applicable

decisions of this Court.

We, therefore, respectfully submit that this Court should

not entertain jurisdiction by issuing a writ of certiorari to

-review the decisions of the Court below.

Counter-Questions Presented

1. Have the petitioners’ constitutional rights against -

_ unreasonable seareh and seizure been violated when said

petitioners, having had every opportinity te raise the .

Mapp issue by way of direct ~attack in their appeals to the

State Courts, failed to ever question the legality of the

search and seizure or the admissibility of the fruits there-

of during the cdurse of direct review?

3g

2. Does the ¢ ‘onstitution: of the United States guarantee

to these petitioners an opportunity to raise the ‘illegality

of 4 search and seizure via collatyral attack upon their final

judgments of conviction, when/as a matter of State pro-

cedure, the Courts of New Adrsey rae pong that

collateral attack shall not serva the office Of direct appeal?

5 ad

lil. . i

Counter-Statement of the Case

The sutiitboners were aoa on July 14, 1960, when

State enforcement officers as well as loeal police, armed

with a search warrant, raided premises owned by, them.

‘The search resulted in the discovery of more than $265,-

000.00 in cash, as well as an‘ussortment of adding machines; .

._ paper and canvas money bags, money wrappers, adding

machine tapes, and a-large number of env elopes bearing

number slips and. plays.

On May 18, 1961 after a four day jury trial during w hich.

the legality of the search was never raised, the petitioners |

were found guilty on four indictments ranging from cou-

spiracy to maintaining a nuisance. ,

“Mapp v. Ohio, 367 U. S. 643 Oo, Was deeded by this Court

on June 19, 1961, and on June 25, 1961, during an applica-

tion for a stay of the execution of sentence pending appeal,

petitioners’ then counsel, Mr. Slurzberg, urged that there

existed a substantial question of law generited by Mapp

which the appellate court; should rule upon. Counsel fur-

ther believed that this exclusionary rule would be applied

retroactively thereby coming within the orbit’of the case

sub judice: (page & infra).

On June 26, 1961, with full knowledge of the Mapp de-

cision and its ramifications, petitioners appealed tothe

7

o

° a

eset ieasneiasennneiosmaas

Appellate, Division of the. Superior Court ‘of New Jersey

without ever raising the Mapp issue. On-Nov ember 6, L9G,

State v. Valentin, 36 N43. 41 (1961) was decided and the -

Supreme Court of New Jersey indicated its Willingness to

apply the exélusionary rule.to a pre-Mapp search and seiz-

ure by remanding so that gvidence could be taken on the

legality of the searéh. On November 30, 1961, New York’s ,

highest court decided it-would apply Mapp to pending ap-

Q peals from pre- Mapp convictions, People v.-Loria, 10 N. Y.

2d 368, 223 N. Y-S. 2d 462, 179 N. KE. 2d 478 (Ct. App. 1961).

On February 26, 1962, the case. sub judice was argued

before the Appellate Divi aaa of the Superi ior Court of New

Jersey at which time Mapp was never raised. -On June 4,

- 1962, the Supreme Court of New Jersey held that Mapp

‘had retroactive effect on pre-Mupp searches, and that it

would accept the Mapp issue on direct appeal from a pre-

Mapp couvietion in, at least, eases in which the record sug-

gested a. basis for pee the reasonableness of the

search, Stete v. Smith, 37 N. J. 481 (1962). On June 25,

1962, petitioners filed sed Petition for C ‘ertification in the

Supreme Court of New Jersey, and ‘onee agaimthe search,

seizure or the introduction of evidence at the trial wax

never challengéd, althougli the avalanche triggered’ “by

Mapp was well underway. - Pts

P .

Certification was denied by the Suprenie “Cour of New

Jersey on September 17, 1962. ‘Thus, turing the entire pro-

ceeding on direct appeal within e “State court, there was

no attempt made to progect ‘Hie Mapp issue, although coun-

se! for the petitioners had previously stated that. Mapp was

applicable to the casé (page 8 infra).

It was only on October 1, 162, after all direct appeals

were exhausted, that the petitioners fot the first time at-

tempted to raise the sear¢h and seizure issue presented in.

Mapp v. Ohio, Having delayed for approximately one vear

_and a half, the petitioners’ Motion to Vacate the Judgments

—P

” :

Pree a

- of Conviction and for a New Trial was witlanly brought

under R.R. 3:7-11, however, the Superior Court of New

Jersey, Appellate Division, treated the Motion as an at-

tempt to seek the Court’s aid under R.R. 3:11-9. The Ap-

pellate Division affirmed the trial court’s denial of the

aforesaid Motion and the Supreme Court of New Jersey

denied certification.

Iv.

The Argument

"Petitioners? trial began on May 15, 1961 and -eentimued

_ to May 18, 1961, when the jury returned’a verdict of guilty.

>At no time during the trial. did the petitioners object to. the

admission of any evidence obtained as a result of the

search of July 14, 1960. This inaction, we must admit, was

excusable since the petitioners couldn’t be charged with

failing to anticipate Mapp. From this- point on, however,

their failure to raise ¢ the Mapp issues was without justifica-

tion.

Qn sentencing day, June 25, 1961, petitioners were well

aware of the Mapp decision and, if the remarks lof their

State appellate counsel are any indication, were well con-

vineed that Mapp applied to their convictions. Neverthe-

Jess, despite the hints contained in Stafe v. Vale ntin, supra.

and the precede nt set by New York’s People v. Loria, su-

pra, petitioners failed to raise this issue. in, the Appellate

Division. Whatever doubts defendants might have retained ”

‘as to the efficacy of such an assertion should have been

quickly dispelled, by State v. Smith, supra. Nevertheless,

petitioners again failed to raise the issue in their subse-

quent Petition for Certification.

Early in thé Mapp opinion, Mr.’ Justice Chang quotes

Byars v. United States, 273 U.S, 28, 25-50 (1927) to the

_effect that the exclusionary rule is only available ** where

a timely challe nige has been interposed”? and it is/iater ex-

plicitly stated in Vapp. footnote 9, page a. that:

VIE:

; cai ;

‘As is always the case, however, State procedural

requirements governing assertion and pursuance of

direct and collateral constitutional challenges to crimi-_

nal prosecutions must be respected,”’

7 i _/*-

-®

.

One of New Jersey's cardinal procedural principles is’

_ that collateral attacks w idtaapt be alowed. to do service for_

an appeal: State v. Jenkins, : ar J. 109, 117 (160): Janiec

v. McCorkle, 52 NX. J. Super. 1, 19 (App. Div. 1958) ; In re

Robilotto, 24 N. J. Super. io: 211 (App. Div. 1953). Due

regard for the orderly administration of justice and the

policy of finality ef judgments are among the reasons ad- |”

vanced for the existence of this rule. This antipathy to- —

ward collateral attack and piecemeal review has been stated

on many occasions by this Court; ‘Sunal v. Large, 3382 U.S.

174 (1947); Cleary vy. Bolger, 371 U.S. 392 (1963); Adams

v. United States ex rel. McCaun, 347 U.S. 269, 274 (1942);

* Daniels v. Allen, sub nom. Braum v. Allen, 344 U.S. 433:

Chovez v. Dickson, 280 F. 2d 727, 733 (9th Cir, 1960) cert.

den. 364 U. S. 934 (1961). ae ke 7

It is also not without significance that before the advent

of Mapp, the lower federal: courts have ‘consistently ad-

hered to thé rule that’ the issue of 2dmissibility of unconsti-

_tationally seized ‘evidence may not be raised on collateral

“attack: United States v, Zaradc, 201 F. 2d 189, 191 (6th

Cir. 1961); Aferander v. United States, 290 F, 2252, 254

(Sth Cire,1961); Jones v. Attorney Genera the United

' Statek, 278 F. 2d 699, 701 (Sth Cire T96DY. Furthermore, *

collateral attack has-been consistently denied by our sister

states: Peo,.. .. Muller, 11 N.Y. 2d 154, 227 N. Y.S. 4

421, 182 N. E: 2a 99 (Ct. App. 1962), cert. den. 371.U.

850; Petition of Dirring, 183 N. E..2d 301 (Sup. Jud. 7

Mass. 1962); Moore v. State, 146 So. 2d 734 (Ct. App. Ala.

1962); Commonwealth —v Myers, 19) Pa, Super. O41, 18)

A. 2d 806 (Super. Ct. £962). See also ly re Harris, 366 P.

Id 305, 16 Cal. Rptr. 889, 890-94 (Sup. C1. 1964) coneurring

opinion. ee eo

Lastly, it is submitted that-the decision sought to be re-

viewed rests on adequate grounds of State procedure which

do not present or constitute a fedéral question, Carter v, -

, People of State of Illinois, 329 U.S. 173, 175; 67 S. Ct. 216,

91... 172 (1946) ; Young v. Ragen, 337 U. S. 235, 238, 69

S.Ct. 1073, 98 L. Bd. 1333, (1948); Milk Wagon Drivers’

Union of Chic ago, Local’ 753 v. Meadowmoor Dairies, IIl.,

s pea 287, 61S. C 't. oo2, 8> L. Ed. 8386 (1941).

Ama eh Ae

Toy

CONCLUSION

. © The attempt by petitioners to have their matter reviewed

by the Supreme Court of the United States should fail be-

cause the Constitutional rights or privileges which the peti- C ’

tioners now claim were never properly raised in the State

Courts on direct review. Fhe decisions sought to be re-

viewed were based on well-settled State decisional law

which is in accord with the decisions of this Court and that

of our sister-states. There has been no substantial federal

question raised meriting review by this Court and based

upon all these reasons, it is respectfully submitted that the

petition for a writ of certiorari:skould be denied.

Respectfully submitted,

i ; ’

Cause W. Cacissi, ;

Bergen County Prosecytor, ~~

Attorney for and of Counsel with

. oF Plaintiff-Respondent,- The State

of New Jersey.

Roxavp J. Pictxica.

Assistant Prosecutor,

On the Brief

| APPENDIX Fottows ]

APPENDIX _-

e

Excerpts from Argument on Application for Stay of

Execution of Sentence Pending Appeal of the Bergen

County Court, Law Division (June 23, 1961)

(commencing at 21-19)

The Court :, Tell me.

Mf. Slurzberg: I don’t know whether your Honor:

is familiar with the fact that on Monday of this week

an opinion was rendered, and in light of that opinion—

_ and I am sorry that the official opinion ig not avail-~

- able—but I am. satisfied that there is in this case a

meritorious and substantial (22*) question of law that

the appellate courts should consider with respect to

whether or not the ae upon which this arrest

was made— .

. The Court: You mean 1 the search warrant,

_ Mr. Sluraberg: —was valid, and whether the taking

of all the monies was valid.

‘I believe that in light.of the law that came down by

the Supreme Court effective and retroactive because it

- came out before the imposition of sentence, is a matter

that an appellate court, should weigh.

In this case it is a matter of novel importance. It

has never beén made before. There is no criticism to

the court, to this court, with respect to the merits. It

_ig within the orbit of this case.’ It is something that

is important enough to warrant a stay, so that the ap-

pellate courts.can rile upon it.

I feel that squarely inthis case it comes within the

decision of the United States Supreme Court and it is

a substantial question because, otherwise I don’t think

T could raise it.

F ” * e

* All figures in parentheses madicate the number of each new page

of the. stenographic transcript