For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
Defendant was convicted of possession of heroin in violation of R.S. 24:18-4. We certified his appeal before the Appellate Division acted upon it.
During the pendency of the appeal, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), was decided. There, overruling Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), the Court held the Federal Constitution barred the use by a State of evidence it seized through an illegal search.
The sole claim before us is that the conviction should be reversed for an alleged violation of the doctrine of Mapp.
The first question is whether Mapp must be applied to a search made before June 19, 1961, the date of that decision.
There is no easy solution to the problem of retroactive application of decisional law in criminal matters. We seek essential justice both to the individual and to the community. If a prior judgment is fundamentally unfair in the light of a later decision, there is strong compulsion to reopen. But a change of law need not mean the earlier rule was so plainly wrong that every judgment in which it figured must be unjust. See Sunal v. Large, 332 U.S. 174, 67 S. Ct. 1588, 91 L. Ed. 1982 (1947); Warring v. Colpoys,
74 App. D.C. 303, 122 F.2d 642, 136 A.L.R. 1025 (D.C. Cir. 1941), cert. denied 314 U.S. 678, 62 S. Ct. 184, 86 L. Ed. 543 (1941).
Concepts of justice change. Doctrines, incomprehensible today, were once embraced by judges who in their times were doubtless the epitome of the reasonable man. Surely this is so in long-range retrospect. It is equally true that at the moment of change the choice is not necessarily between dead right and dead wrong. The judicial scene is studded with issues upon which conflicting views command respectable support. When a court alters its course, it is often but a preference, a belief that justice is better served in another way, with no intimation that whoever disagrees must be mean or inane. So recently, although we disapproved prior decisions relating to the jury's role with respect to the voluntariness of a confession and preferred another approach for the future, we declined to reverse the conviction before us since we could not say a different view held by so many was innately unjust. State v. Smith, 32 N.J. 501, 557-558 (1960), cert. denied 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2 d 367 (1961); see also State v. Johnson, 37 N.J. 19 (1962).
Nor is it a decisive difference that Mapp deals with a constitutional guaranty rather than a principle of lesser stature. Even as to constitutional issues, divergent positions may each reasonably claim organic truth. Surely this must be so with respect to the question whether evidence illegally seized should be excluded from the trial, a question which divided courts throughout the country for so many years and on which the holding of Mapp attracted but a bare majority of the Court.
We are not dealing with a denial of a right which bears upon the truth of a conviction, as for example, the right to counsel or to appellate review. See, e.g., Carnley v. Cochran, 82 S. Ct. 884, 8 L. Ed. 2 d 70 (1962); Eskridge v. Washington State Board, 357 U.S. 214, 78 S. Ct. 1061, 2 L. Ed. 2 d 1269 (1958), and Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956). Rather the subject is [37 NJ Page 485] evidence, the probative force of which is constant whether it is seized with or without warrant. The heroin was heroin, and defendant's connection with it was the same, with or without official compliance with the law of search and seizure. In short, the fairness of the trial itself and the truth of the verdict are not involved. The constitutional injury lies elsewhere. What we have said would bear upon whether a pre-Mapp conviction may be assailed either on direct appeal or on collateral attack.*fn1 The State, however, argues for a result short of either of those points. It contends Mapp is inapplicable to any seizure made before the date that case was decided. We heretofore assumed otherwise in State v. Valentin, 36 N.J. 41 (1961). There we had granted leave to appeal from an interlocutory order denying a pretrial motion to suppress the product of a search. Prior
to argument of the appeal, Mapp was decided. We thereupon remanded the matter to the end that all of the facts might be adduced, with directions to determine the motion to suppress in the light of Mapp. We note also that after Valentin trial courts granted relief with respect to pre-Mapp seizures. E.g., State v. Masi, 72 N.J. Super. 55 (Law Div. 1962).
In essence the State's position is that Mapp prohibits the use of illegally seized evidence, not because such use itself violates the Constitution, but rather as a deterrent against future official lawlessness. If this be so, Mapp should apply only to subsequent searches, since what has happened is beyond deterrence. True, retroactive application would make the holding of Mapp all the more emphatic, but the State says such emphasis, being unnecessary, would be punitive to society and a windfall to the guilty.
In the long debate before Mapp, most of the disputants agreed the constitutional wrong was in the invasion of privacy by an illegal search rather than in the use of the product of the search. The quarrel revolved about the need of a rule of exclusion as a deterrent to official misconduct. The advocates of the exclusionary rule contended that other remedies were illusory, that the right of privacy could be protected only by denying government the fruit of the invasion. Thus in Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 1444, 4 L. Ed. 2 d 1669, 1677 (1960), Mr. Justice Stewart said:
"Yet, however felicitous their phrasing, these objections hardly answer the basic postulate of the exclusionary rule itself. 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 disregard it. See Eleuteri v. Richman, 26 N.J. 506, 513, 141 A. 2 d 46, 50." (Italics added)
That thesis would support the State's position. The question is whether the majority in Mapp departed from it.
In his separate opinion Mr. Justice Black said he was still not persuaded that the Fourth Amendment forbade the use of the evidence, but, recurring to Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), he found that the Fourth, "considered together with the Fifth Amendment's ban against compelled self-incrimination," required exclusion (367 U.S., at p. 662, 81 S. Ct., at p. 1695, 6 L. Ed. 2 d, at p. 1094). Upon that approach, the use of the product of the illegal search would itself be a constitutional wrong.
But Mr. Justice Clark, speaking for himself and three others, did not adopt the thesis of Mr. Justice Black. Rather he dealt with the issue in terms of a sanction to deter official lawlessness and indeed quoted the portion of Elkins which we italicized above. (367 U.S., at p. 656, 81 S. Ct., at p. 1692, 6 L. Ed. 2 d, at p. 1090.) He did, however, also say the Fourth Amendment includes a "most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure," (ibid.); and further, referring to a "coerced confession," he added, "Why should not the same rule apply to what is tantamount to coerced testimony by way of unconstitutional seizure of goods, papers, effects, documents, etc.?" (367 U.S., at p. 656, 81 S. Ct., at p. 1692, 6 L. Ed. 2 d, at p. 1091.) The query is whether, by these additional statements, Mr. Justice Clark went beyond the preventive thesis and found that the use of the product of the search itself constituted a constitutional wrong.
We doubt that Mr. Justice Clark meant, by the portions to which we last referred, that the use of the product of the illegal search would constitute compulsory self-incrimination. Mr. Justice Harlan in his dissent seems not to have read the opinion in that vein, since he directed only to the opinion of Mr. Justice Black his response that (367 U.S., at pp. 685-686, 81 S. Ct., at p. 1708, 6 L. Ed. 2 d, at p. 1107) "we have only very recently again reiterated the
long established doctrine of this Court that the Fifth Amendment privilege against self-incrimination is not applicable to the States. See Cohen v. Hurley, 366 ...