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In re Application of Alexander Nicholas Bogish

Decided: September 21, 1961.

IN THE MATTER OF THE APPLICATION OF ALEXANDER NICHOLAS BOGISH


Application for writ of habeas corpus.

Martino, J.c.c. (temporarily assigned).

Martino

Chief Justice Marshall first described the term habeas corpus as a generic term. He said it encompassed, in addition to the great writ (habeas corpus ad subjiciendum for an inquiry into the cause of restraint), the writ of habeas corpus ad prosequendum. The Chief Justice noted, however, that when used in the Constitution, that is,

"When used singly -- when we say the Writ of Habeas Corpus, without addition we most generally mean that Great Writ." Ex parte Bollman , 4 Cranch 75, 95, 2 L. Ed. 554 (1807).

This great writ has suffered much by its abuse, yet it has had a great influence in the molding of those liberties which to us are sacred.

In this case the great writ was allowed and the matter proceeded to a plenary hearing. Counsel for petitioner was appointed and the trial transcript was supplied at the county's expense.

The petitioner was tried and convicted on an indictment which charged him with violation of R.S. 24:18-4 in that he had in his possession heroin. He was sentenced to a term of five to seven years, which judgment was entered on February 26, 1959. While he was confined to the New Jersey State Prison he addressed a letter to this court which letter was treated as an application for a new trial and he was granted a hearing on April 23, 1959, at which time the application for a new trial was denied. He had privately engaged counsel for his trial and at the hearing for a new trial. He filed a petition for leave to appeal as an indigent in the Superior Court, Appellate Division. This was denied on September 19, 1959.

Another petition for habeas corpus was filed in the Superior Court, Law Division, on October 20, 1959. This petition was denied by a formal but not reported opinion filed on October 26, 1959. He then filed a notice of appeal on November 6, 1959, which was followed by a petition for leave to appeal as an indigent, which petition was denied by the Appellate Division on December 17, 1959. He then filed a notice of appeal from the Appellate Division ruling, and on January 6, 1960 he filed a petition for leave to appeal as an indigent in the Supreme Court of New Jersey. This petition was also denied on March 14, 1960. A petition for writ of certiorari , addressed to the Supreme Court of the United States, was denied on June 13, 1960, Bogish v. New Jersey , 363 U.S. 824, 80 S. Ct. 1265, 4 L. Ed. 2 d 1520 (1960). After this denial he petitioned the United States District Court, District of New Jersey, for a writ of habeas corpus and invoked that court's jurisdiction under Section 2241 of 28 U.S.C.A. Chief Judge Smith of that court filed a formal opinion and order in which he reviewed all the proceedings pursued by this relator. He denied the application, Application of Alexander Nicholas Bogish, Docket No. Civil 78-60, decided August 10, 1960 (not reported). Petitioner again petitioned the Superior Court,

Law Division, for a writ, and this was denied on December 7, 1960. Another application was made to the United States Supreme Court, and this was denied on July 19, 1961 (not reported officially but memo decision found at 366 U.S. 957, 81 S. Ct. 1947, 6 L. Ed. 2 d 1267). The petitioner has never denied that he was guilty of possession of heroin but insists that the officers involved were guilty of unreasonable search and seizure.

The following facts may be summarized from the trial testimony: On September 10, 1958, as the petitioner was alighting from a bus at the corner of Broadway and Lawrence Street in the City of Camden, a Camden city detective, who was accompanied by a federal agent, approached the bus exit. As the petitioner was leaving the bus the city detective observed a packet in one of his hands and as the police officer started to identify himself to the petitioner he observed that the petitioner started to move the hand containing the packet toward his mouth, whereupon he grabbed the petitioner's arm and the packet fell to the ground. As this incident occurred another federal agent, who was in the vicinity observed a skirmish involving the petitioner and the detective and the other agent, each of whom was attempting to retrieve the packet from the ground. The city detective was able to retrieve the packet with the assistance of the agent. There was no attempt to hide the fact that the federal agents were in the area as a result of a previous arrangement. By whom this arrangement was made was never established. Neither the city detective nor the federal agents were armed with search or arrest warrants. The petitioner went to city hall peaceably. He was indicted by the Camden County grand jury and ...


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