Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
Plaintiffs brought this action in the Chancery Division to obtain equitable relief against the defendants in respect of the prospective use against them, in the trial of pending indictments for bookmaking, of certain money and property obtained by the State as a result of assertedly illegal searches of their homes. From a summary judgment in favor of defendants, 43 N.J. Super. 303 (Ch. Div. 1956), plaintiffs bring this appeal.
At the argument of the motion for summary judgment leave was granted to plaintiffs to file, for the record, an amended complaint to cover certain factual contentions inadvertently omitted from the complaint, but included within the scope of the argument on the motion. In essence, the amended complaint sets forth the following grievances. As to the plaintiff Eleuteri it is charged that one George Dann, a trooper in the State Police, subordinate to and under the control of the defendant, Attorney-General Richman, on August 22, 1954 searched plaintiff's "premises" at 134 [47 NJSuper Page 5] Second Street in the City of Bordentown and took and carried away "papers, money and property" belonging to him, and that the search and seizure was illegal and unreasonable, in violation of specified provisions of the New Jersey and United States Constitutions in the respects: (a) that the only authorization for the search was a search warrant issued by the magistrate of the Municipal Court of the Township of Chesterfield, which was without jurisdiction in the City of Bordentown, and (b) that the warrant did not "particularly" describe the papers and things to be seized; that as a result of the said search the predecessor of the defendant, Prosecutor Queenan of Burlington County, procured an indictment of plaintiff, charging him with what is commonly known as bookmaking and possession of lottery policy slips, both constituting statutory criminal offenses, and that the said defendant holds the papers and property so seized for use at the trial of the plaintiff, being dependent thereon to establish a prima facie case against him; that both defendants are sworn to uphold the Constitutions both of New Jersey and of the United States; that the New Jersey courts of law, as distinguished from the courts of equity, have so construed Article I, paragraph 7, of the New Jersey Constitution of 1947, securing the people from unreasonable search and seizure, and its predecessor provision under the Constitution of 1844, as to deny the people the right to be "secure" in the sense intended by the Constitution of New Jersey and by the Fourth Amendment of the United States Constitution, the benefits of which extend to the citizen as against state action by virtue of the Fourteenth Amendment of the United States Constitution, particularly in that they have permitted papers and effects of citizens unauthorizedly searched and seized to be exposed to public view and used as evidence in the prosecution of such citizens for crime and have refused to suppress such papers and effects and return them to their owners notwithstanding that the search and seizure was illegal; that because of the "uniform and well established construction" of the Constitutions in the manner stated, the State of
New Jersey and its law enforcement officers, including the defendants, have "affirmatively sanctioned, practiced and encouraged" unlawful police incursion into the privacy of citizens and that defendants have "encouraged" their subordinates to take advantage of unconstitutional searches; that the search of plaintiff's home was "part and parcel" of that illegal policy of the State of New Jersey; and that the remedy afforded by the New Jersey law courts for illegal or unconstitutional searches is an action for damages, which is inadequate and will not compensate plaintiff for being convicted of crime as a result of evidence obtained in violation of his constitutional rights. Wherefore the complaint of the plaintiff Eleuteri sought judgment declaring the search illegal and the retention by defendants of the papers and effects seized to constitute a continuing unconstitutional seizure of his property; requiring defendants to return the property to the plaintiff or to deliver it to the court "for destruction"; and enjoining defendants from offering any of the effects in evidence at the trial of the indictments and from any further unconstitutional searches of plaintiff's premises, and any further "sanctioning in an affirmative way police incursion into the privacy of the plaintiff and the other citizens of the State of New Jersey."
As to the plaintiff Danley, the complaint follows the same pattern except that the premises searched in this case were situated at 52 East Main Street in the Village of Columbus, Township of Mansfield, and the illegality charged, in addition to the jurisdictional and other defects in the warrant asserted on behalf of plaintiff Eleuteri, includes the specification that the warrant authorized a search of number 54, rather than 52, East Main Street.
On the present appeal defendants do not argue, as they did below, their ground of motion that the defendant Richman may not be sued in his capacity as Attorney-General. Their basic position is relatively simple. Conceding that the search warrants were illegal, at least insofar as the issuing magistrate was without jurisdiction to issue a warrant for a search in a territorial area beyond that of his
municipal court, they contend that, stripped of its pretenses, the present action is designed solely to preclude the use against plaintiffs in their forthcoming criminal trials of the evidence discovered in the course of the searches, but that the decided cases of our courts have repeatedly held that, notwithstanding the illegality of a search, the evidence found is immune from any process to return it pending trial of a criminal charge wherein it is relevant and material per se upon the issue of defendants' guilt, and is receivable in evidence on that issue at the trial without regard to the illegality of the search. They argue that these rules of law constitute settled state policy, not to be circumvented by such an action as this; that plaintiffs' sole remedy is by civil action against the officers who have contravened the Constitution; and that the use by either defendant of the evidence in question in the pending prosecutions will not violate his oath of office. They deny any affirmative state policy for illegal searches and seizures. They further contend that settled principles of equity jurisprudence, particularly in respect of the enjoining of a criminal prosecution, preclude the grant of equitable relief.
Before undertaking a consideration of the principal issues presented, two subsidiary questions require notice: (a) the adequacy of the legal remedies which the trial court held plaintiffs possessed; (b) whether the items of property are precluded from repossession by plaintiffs because contraband. To some extent these matters are related.
The trial court held that actions would lie either for replevin or for trespass against the officers who conducted the illegal search. The existence of a theoretical remedy for damages as for trespass is undeniable. See Fennemore v. Armstrong , 29 Del. 35, 96 A. 204 (Super. Ct. 1915); Simpson v. McCaffrey , 13 Ohio 508 (Sup. Ct. 1844); Gamble v. Keyes , 35 S.D. 644, 153 N.W. 888 (Sup. Ct. 1915); 79 C.J.S. Searches and Seizures § 101, p. 919; cf. Hebrew
v. Pulis , 73 N.J.L. 621, 625 (E. & A. 1906). But the availability of such an action, apart from the matter of the unlikelihood of substantial damages in such a case as this, particularly if the plaintiffs are convicted of gambling, begs the question which this action poses, i.e. , the alleged right of plaintiffs to have specific enforcement of the security against illegal searches vouchsafed them by the constitutional provisions in the form of a judgment ordering a return of the property in order to prevent defendants from effecting what plaintiffs conceive is a continuing breach of those provisions through the holding and prospective use of the property to convict plaintiffs of a crime. If plaintiffs' constitutional grievances are as broad as they claim and if nothing short of a grant of their prayer for relief will vindicate them, a judgment for damages will not adequately compensate them.
As to replevin, the availability of an action of that nature is far from clear. The record before us does not reveal the precise character of the property seized. But if, as may be inferred, it was gambling paraphernalia or property used in the furtherance of gambling, the statute forbids its deliverance out of the hands of the authorities pending the outcome of criminal proceedings. N.J.S. 2 A:152-6, 7; Spagnuolo v. Bonnet , 16 N.J. 546, 558 (1954). Even if it was not contraband, there is authority to the effect that property held by the State as evidence for use in a criminal trial is not subject to replevin or to an action of that purport or effect. 46 Am. Jur., Replevin , § 46, p. 30. The question, however, frequently is confused with the meritorious issue before us here, i.e. , the effect of the fact that the property was obtained from the ownersuspect by an unconstitutional search and seizure upon its admissibility in evidence in criminal proceedings. Ibidem. We conceive that the interests of substantial justice and of an expeditious determination of this controversy call for our consideration of the matter before us on the merits of the important constitutional questions raised rather than to permit procedural incidents to divert us from that course.
N.J. Const. (1947), Art. VI, Sec. III, par. 4; O'Neill v. Vreeland , 6 N.J. 158 (1951); Tumarkin v. Friedman , 17 N.J. Super. 20 (App. Div. 1951), certification denied 9 N.J. 287 (1952).
Although it is obvious from plaintiffs' argument that they have instituted this action in the Chancery Division in the belief that a more hospitable forum would there be found for the plea that restitution of the papers and property seized is an inseparable incident of their right to be secure against unreasonable search and seizure, and that retention of the papers and property by defendants is violative of their obligation to uphold the Federal and State Constitutions, we conceive that plaintiffs' real and underlying contention is that the rules heretofore applied by our criminal courts concerning the right of the State to retain and use in a prosecution of its owner any property evidential of his guilt, notwithstanding its discovery and seizure as the result of an unconstitutional search and seizure, should now be reexamined and repudiated. The precise position taken appears to concede that, as a technical rule of evidence, once trial of an indictment is under way, the questionable data is admissible regardless of the illegality of its procurement, but that it ought to be possible to forestall this result by suitable proceedings in advance of trial to suppress the data. This would eliminate the objection of delaying the trial by introduction of a collateral issue and yet restore the victim of the illegal search to his security-status with respect to the data as of prior to the search. Plaintiffs conceive that unless they can have this relief at the hands of some tribunal, they have been denied the essence of the security from unreasonable search guaranteed them by Article I, paragraph 7 of the New Jersey Constitution, and by the Fourth Amendment of the United States Constitution, made applicable to state action by the Fourteenth Amendment.
As an intermediate appellate tribunal we are first faced with the question as to whether these inquiries have not [47 NJSuper Page 10] been resolved by the courts of last resort of this State and therefore concluded as far as this court is concerned. With respect to the evidence rule there is no doubt that the matter was settled long ago by the Court of Errors and Appeals adversely to the plaintiffs' position. State v. Lyons , 99 N.J.L. 301 (E. & A. 1923); State v. Merra , 103 N.J.L. 361 (E. & A. 1927); State v. Cortese , 104 N.J.L. 447 (E. & A. 1927), affirming 4 N.J. Misc. 683 (Sup. Ct. 1926); State v. Guida , 119 N.J.L. 464 (E. & A. 1938), affirming 118 N.J.L. 289 (Sup. Ct. 1937). If evidential per se, i.e. , if "material and competent" when "we leave out of consideration the manner in which the State obtained the papers," they are admissible in evidence. See State v. Pinsky , 6 N.J. Super. 90, 94 (App. Div. 1950). A number of former Supreme Court decisions are in accord. And it hardly matters now that most of these cases rely upon State v. MacQueen , 69 N.J.L. 522, at page 528 (Sup. Ct. 1903), which expressly refused to decide the question because it had not been raised below. Neither the Court of Errors and Appeals nor the present Supreme Court, however, has ever passed directly on the question as to whether illegally procured evidence is required to be returned to its owner upon demand in advance of a criminal trial. Our former court of last resort had two opportunities to do so, the question having been raised in State v. Mausert , 88 N.J.L. 286 (E. & A. 1915), and in State v. Giberson , 99 N.J.L. 85 (E. & A. 1923). In both instances the court preferred to remain silent, the Mausert case going off on a holding that the seizure was the incident of a lawful arrest and the Giberson ruling being predicated upon consent to the search by the defendant. A strongly stated dictum in support of the right to pretrial return of such property was uttered by the Middlesex Court of Oyer and Terminer in State v. Condon , 40 N.J.L.J. 293 (1917). The former Supreme Court, however, has held that a motion to return illegally seized evidence would be unavailing, the decision relying upon the cases on admissibility of the evidence at trial. State v. First Criminal Judicial Dist. Court, Bergen
Co. , 10 N.J. Misc. 715, 160 A. 672 (Sup. Ct. 1932). The point was given extended consideration in the former Essex County Court of Quarter Sessions in State v. Black , 5 N.J. Misc. 48, 55, 135 A. 685 (1926), where it was concluded that a pretrial motion for the return of illegally seized evidence would "conflict" with the cases rejecting the exclusionary rule and that the practice was unauthorized.
The same question reappeared in In re 301-317 Clinton Avenue , 35 N.J. Super. 136 (Cty. Ct. 1955). There a search warrant which had been executed by a state trooper acting as an agent of the Law Enforcement Council, resulting in the seizure of property contended by the State to have been used in the conduct of a lottery, was sought to be quashed on a motion before trial of a criminal prosecution on the ground, among others, that while assigned to the Law Enforcement Council the trooper was under a disability to execute a search warrant. The County Court agreed the warrant was illegally executed but denied the motion to quash on the authority of State v. Black, supra , relying also upon State v. Cicenia , 6 N.J. 296 (1951), where it was held that the criminal procedure rules did not authorize a motion in advance of trial to suppress a confession. When the case reached the Supreme Court, sub nomine Application of Berlin , 19 N.J. 522, at page 531 (1955), it was held that the execution of the warrant and all other attendant incidents of the search and seizure were legally unexceptionable, and the court then stated, significantly:
"In this view it is unnecessary to determine the asserted right to a return of the goods taken where the search warrant is quashed for invalidity."
Since the point referred to could have been dispatched by a reference to the earlier authorities holding against the right of return of the goods, we are of the view that the foregoing disposition constitutes a pointed indication by ...