petitioner and the woman with whom he was living, Barayasarra left the place of the robbery and complained thereof to the municipal police, with whose co-operation he received clinical medical treatment. He thereafter guided representatives of the police department back to the room in which the alleged beating had occurred. The room was then unoccupied, and the door thereof was either open or unlocked. Representatives of the police department examined the interior of the room and found therein some of the articles which had been taken from the victim. Thereafter, still accompanied by the victim, the representatives of the police department left the room and sought petitioner and the woman with whom he lived. Upon their being pointed out on the street by the victim, the police arrested petitioner and the woman and, in the course of that arrest, searched his person and removed therefrom the victim's wrist watch, which petitioner was then wearing, and a knife susceptible of use as a dangerous weapon which petitioner was carrying concealed upon his person. Some of the articles of personal property which had been taken from the victim and found by the police on their visit to petitioner's room prior to his arrest were admitted in evidence on petitioner's trial, without objection by petitioner's trial counsel.
The grounds presently relied upon for the allowance of the writ by this Court are: (1) illegality of the search and seizure at the time of petitioner's arrest; (2) lack of a warrant for his arrest; (3) prejudice to petitioner resulting from the trial court's comment to a witness; and (4) allegedly prejudicial conduct by the prosecutor in talking to the jurors outside of the court room. These grounds were urged by petitioner in the appellate court and ruled upon adversely to him there. Green's pending application (here) was supplemented by his letter of August 7, 1963 to this Court, in which he complains that the erroneous use of the middle initial 'X' in his name, as set forth in the indictments and referred to during the trial, was prejudicial in that such a letter was frequently used by members of a sect, known as 'Muslims', which encourages interracial antagonism. The same ground had been urged by Green in the Appellate Division and was also rejected by that Court as a ground for reversal.
Petitioner argued, in his brief on appeal, that no warrant had been obtained for his arrest, and that a watch and knife which had been removed from his person were admitted in evidence at the trial. He also complains of the admission in evidence of a wallet and a dollar bill taken by the police from the home of the petitioner, which, he charges, was entered and searched by the police without a warrant. Relying on Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), petitioner argued in the Appellate Division that his alleged crime had been committed prior to the arrival of the police, and that the search of petitioner's room was conducted without warrant, out of petitioner's presence and without his consent. That court held, respecting petitioner's contention that he was convicted by the use of illegally obtained evidence: 'This case does not justify invoking the doctrine of Mapp v. Ohio * * *. Here the conviction was not predicated upon unlawfully seized evidence. The crucial exhibits -- defendant's knife and the victim's wrist watch -- were taken from the defendant incident to a valid arrest. The wallet, check and dollar bill found on the floor of the room on Mulberry Street were property belonging to the complaining witness. The police did not make an exploratory search of the premises. There is a complete absence of any bad faith or indifference to constitutional rights. A crime had been committed and the law enforcement officers were in fresh pursuit of the criminal. Mapp v. Ohio, supra, is inapplicable.' The Appellate Division affirmed petitioner's conviction on January 25, 1963, and he thereafter sought relief from the New Jersey Supreme Court by a 'Petition for Writ of Habeas Corpus' which the Supreme Court, on April 1, 1963, treated as a petition for certification to the Appellate Division and denied for lack of merit. Raising the same questions here as in his appeals, petitioner has fully complied with the exhaustion of State remedies requirement of 28 U.S.C. § 2254. He did not have to petition the United States Supreme Court for certiorari after the affirmance by the New Jersey Supreme Court. Fay v. Noia (1963) 372 U.S. 391, 435-438, 83 S. Ct. 822, 9 L. Ed. 2d 837. Nor did petitioner have to exhaust any other available New Jersey remedies, since he had fully pursued one course of State appellate review on these five grounds. Brown v. Allen (1953) 344 U.S. 443, 447-450, 73 S. Ct. 397, 97 L. Ed. 469.
The primary question posed by the pending application for a writ of habeas corpus is whether the admission in evidence, upon the petitioner's trial, of the articles of personal property found by the municipal police in the room in which the petitioner resided
violated petitioner's Federal constitutional rights under the doctrine of Mapp v. Ohio, supra. A second and subordinate question is presented in this connection: Whether the failure of petitioner's counsel to object to the admission of these exhibits in evidence constituted an effective waiver of petitioner's constitutional right to exclude their admission. The present application for a writ, although attacking the convictions for both robbery and carrying a concealed weapon, can only question the conviction for robbery since petitioner's present custody is based only on that conviction. The conviction for carrying a concealed weapon cannot be the basis for an application for a writ of habeas corpus since petitioner received a suspended sentence on that charge, and the writ cannot issue if there is no restraint of liberty. Witte v. Ferber, 3 Cir. 1955, 219 F.2d 113; United States ex rel. Rinaldi v. State of New Jersey, 3 Cir. 1963, 321 F.2d 885.
The generality of the language of the opinion in Mapp v. Ohio, supra, has been delimited and qualified in Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). The opinion in Ker, (at pp. 30-32 of 374 U.S., at pp. 1628-1629 of 83 S. Ct., 10 L. Ed. 2d 726), states that Mapp, although imposing on the States under the Fourteenth Amendment the same constitutional standard barring unreasonable searches and seizures and the same constitutional prohibition on the use of evidence obtained by such unreasonable searches as those imposed by the Fourth Amendment on the Federal Government, implied no total obliteration of State laws relating to arrests and searches in favor of Federal law and did not lay down a fixed formula for application in specific cases of the constitutional provision against unreasonable searches and seizures. The Court, in Ker, supra, at pp. 32-33 of 374 U.S., at pp. 1629-1630 of 83 S. Ct., 10 L. Ed. 2d 726, points out that Mapp '* * * recognized that * * * '[reasonableness] is in the first instance for the [trial court] * * * to determine'.' It also quoted the statement in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S. Ct. 153, 75 L. Ed. 374 (1931) that, "[there] is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances."
In Harris v. United States, 1947, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399, the majority opinion had this to say respecting a defendant's rights under the Fourth Amendment (p. 150 of 331 U.S. p. 1101 of 67 S. Ct., 91 L. Ed. 1399): 'The Fourth Amendment has never been held to require that every valid search and seizure be effected under the authority of a search warrant. * * * The opinions of this Court have clearly recognized that the search incident to arrest may, under appropriate circumstances, extend beyond the person of the one arrested to include the premises under his immediate control. * * * It is equally clear that a search incident to arrest, which is otherwise reasonable, is not automatically rendered invalid by the fact that a dwelling place, as contrasted to a business premises, is subject to search. * * *' However, the Court distinguished the facts in Harris, where the search was found to be reasonable, as 'not a case in which law enforcement officials have invaded a private dwelling without authority and seized evidence of crime * * * [nor] * * * a case in which law-enforcement officers have entered premises ostensibly for the purpose of making an arrest but in reality for the purpose of conducting a general exploratory search for merely evidentiary materials tending to connect the accused with some crime.' (p. 153 of 331 U.S., p. 1102 of 67 S. Ct., 91 L. Ed. 1399). At p. 154 of the same opinion [p. 154 of 331 U.S., p. 1103 of 67 S. Ct., 91 L. Ed. 1399], the Court emphasizes a distinction 'between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which a crime is committed, the fruits which may validly be seized including the instrumentalities and means by of crime such as stolen property, * * * and property the possession of which is a crime.' Citing Boyd v. United States, 1886, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 1914, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652; Gouled v. United States, 1921, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Carroll v. United States, 1925, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543; Agnello v. United States, 1925, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145; Marron v. United States, 1927, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231; and United States v. Lefkowitz, 1932, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877.
In the case before us here, the victim of the robbery, in guiding the police officers to the place where the robbery was committed, and the officers in accompanying the victim to the place and entering the same, were actuated by the dual motives of the arrest of the robber and the recovery of the stolen property. The room which was entered was not broken into, the door being either unlocked or open. The room was unoccupied at the time of the entry, and the recovery of the stolen articles was made in the absence of the defendant and prior to his arrest.
In the more recent case of Chapman v. United States, 1961, 365 U.S. 610, 81 S. Ct. 776, 5 L. Ed. 2d 828, a conviction based upon evidence procured by a search without warrant of a tenant's residence, in his absence therefrom and prior to his arrest, despite the consent of the landlord, was reversed upon the ground that the fruits of the search were inadmissible under the Fourth Amendment. Although not expressly stated in Chapman, the clear implication of that opinion is that any evidence obtained by a warrantless search of any premises in the absence of the accused, whether the subsequent arrest be with or without a warrant, is inadmissible solely on the basis that the search was not incident to but preceded a lawful arrest. The only exception to this rule would be where 'compelling circumstances', such as the threatened destruction of evidence, exist. See United States v. Jeffers, 1957, 342 U.S. 48, 51-52, 72 S. Ct. 93, 96 L. Ed. 59; Ker v. California, supra, 42, footnote 13 of 374 U.S., p. 1634 of 83 S. Ct., 10 L. Ed. 2d 726. This rule was applied to facts almost identical to those in the present case in Walker v. Peppersack, 4 Cir. 1963, 316 F.2d 119. There defendant was convicted by a State court of armed robbery, and some of the stolen articles, discovered in a warrantless search of defendant's room prior to his arrest on the street, were used as evidence.
Although the standards of the constitutionality of a search and seizure are the same under the Fourth and Fourteenth Amendments and are therefore to be determined by the Federal rather than the State courts ( Ker v. California, supra, pp. 33-34 of 374 U.S., pp. 1629-1630 of 83 S. Ct., 10 L. Ed. 2d 726), it is clear in the present case that New Jersey law would rule the evidence obtained from petitioner's room inadmissible. We find State v. Scrotsky, 1963, 39 N.J. 410, 189 A.2d 23,
Controlling authority for declaring the admission of the evidence, of which the present petitioner complains, violative of his constitutional rights under the rule enunciated in Mapp.
The facts in Scrotsky are strikingly similar to those which petitioner here presents. A landlady discovered that the apartment in which she resided had been broken into and some personal effects taken. She claimed that she saw Scrotsky shortly thereafter climbing over her back fence, carrying a bag. After an unsuccessful hunt for him in the neighborhood, the landlady and police officers came to Scrotsky's apartment, which was in the same building. Scrotsky was not at home, but, after identifying themselves, they were allowed to enter by Scrotsky's wife. When in the apartment, the landlady pointed out certain articles which she claimed had been stolen from her. The following day, she and the same officers returned to the apartment. Finding no one at home but the door unlocked, they entered. She identified her property and, at the direction of the police, she put one or two padlocks on the door. On a later occasion, she reentered the defendant's apartment, accompanied by a police detective, reclaimed her allegedly stolen property and brought it to police headquarters where the articles were photographed. She was then allowed to take them home. Scrotsky was arrested later the same day on the street near the building. The New Jersey Supreme Court, in condemning the search, used the following language, at p. 416 of 39 N.J., at p. 26 of 189 A.2d: 'In the present situation, the search and seizure resulted from unlawful concert of action on the part of Mrs. Seymore and the police officers [Citing Lustig v. United States, 338 U.S. 74, 79 [69 S. Ct. 1372, 93 L. Ed. 1819] (1949)]. Mrs. Seymore simply acted as an arm of the police in reducing the articles to possession. * * * Thus, Mapp v. Ohio stands squarely in the path of their use against Scrotsky, and a conviction based upon their admission in evidence cannot stand.'
In view of the Chapman and Scrotsky cases, supra, this Court holds that the search of petitioner's room on November 11, 1960, without a warrant, while petitioner was absent from the room and before his arrest on the street, violated the Fourteenth Amendment as it incorporates the Fourth Amendment's prohibition of unreasonable searches and seizures, and the evidence obtained from the illegal search was inadmissible under Mapp on the trial in the Essex County Court. It should be noted that the State of New Jersey has not shown, either at the original trial or at the hearing before this Court, the existence of any 'compelling circumstances' which would have authorized the search, without a warrant, under the rule of the Chapman and Scrotsky decisions.
No objection was made at the original trial, by defendant or his counsel, to the admission of the illegally obtained evidence. The trial, however, was conducted and the verdict was rendered and sentence was imposed before the decision of the Mapp case. Consequently, at the time of the trial, any objection to the admission of the evidence in the New Jersey court would have been futile. The failure to so object, therefore, would not bar the raising of that issue on an application for habeas corpus in this Court. Walker v. Peppersack, supra, 126-128 of 316 F.2d. The State of New Jersey has been liberal in permitting the raising of objections to such inadmissible evidence is cases where no objection was made or the evidence was admitted by consent before the Mapp decision. See, e.g., State v. Doyle, 1963, 40 N.J. 320, 191 A.2d 478.
Indeed, petitioner here was allowed to raise the issue in his appeal to the Appellate Division of the State Superior Court.
The Court's finding that the admission of the evidence obtained from the search of the room violated due process under the Fourteenth Amendment requires a vacation of the judgment of conviction and the sentence of petitioner on the robbery charge, even though there was other admissible evidence which alone would have been sufficient to convict him of the charged robbery. Brown v. Allen, 1953, 344 U.S. 443, at p. 475, 73 S. Ct. 397, at p. 416, 97 L. Ed. 469, stated that a violation of due process, consisting in the admission in evidence of a coerced confession, renders the conviction illegal 'even though the evidence apart from the confessions might have been sufficient to sustain the jury's verdict. Malinski v. New York, 324 U.S. 401 [65 S. Ct. 781, 89 L. Ed. 1029].' The opinion in Brown adds that 'neither does it matter that there possibly is evidence in the record independent of the confessions which could sustain the verdict.' On the trial of the present petitioner, there was evidence that he had participated in the beating and robbery of the victim in the room in Newark. It was to that room that the victim led the police, and it was in that room that the articles of the victim's property were found and taken possession of by the police. There articles, although not property of the petitioner but of the victim, would otherwise have been admissible in evidence as corroborative of the victim's testimony relating to the place of the beating and robbery of his person. It cannot be said that the admission of these articles into evidence played no part in persuading the jury of the truth of the testimony of the victim.
The remaining grounds raised by petitioner need not be decided. The alleged errors in the remarks by the trial judge and the conduct of the prosecutor have become moot; the alleged error in the name of petitioner can be raised again if he is retried. Petitioner's final contention that his arrest without a warrant was illegal is one which cannot be a ground for the issuance of a writ of habeas corpus. United States ex rel. Williams v. Myers, D.C.Pa.1961, 196 F.Supp. 280.
This Court's decision, although vacating petitioner's conviction and sentence for robbery,
leaves standing the Essex County Grand Jury indictment #760-60 against him. Pursuant to 28 U.S.C. § 2243, which permits this Court to 'dispose of the matter as law and justice require,' this Court will order petitioner discharged from the custody of the respondent only insofar as that custody is pursuant to the judgment and sentence under indictment #760-60, but such discharge shall be subject to the right of State of New Jersey to retain custody under the said indictment and to proceed to a timely retrial of him on the charge of robbery under indictment #760-60. Dowd v. United States ex rel. Cook, 1951, 340 U.S. 206, 210, 71 S. Ct. 262, 95 L. Ed. 215; Chessman v. Teets, 1957, 354 U.S. 156, 166, 77 S. Ct. 1127, 1 L. Ed. 2d 1253; Grandsinger v. Bovey, D.C.Neb.1957, 153 F.Supp. 201, 240, affd. 8 Cir. 1958, 253 F.2d 917, cert. den. 1958, 357 U.S. 929, 78 S. Ct. 1373, 2 L. Ed. 2d 1371; United States ex rel. Brown v. Smith, D.C.Vt. 1962, 200 F.Supp. 885, 892.
It is therefore, on this 13th day of November, 1963, ordered that the petitioner, James Green, be discharged from the custody of the respondent only insofar as that custody is pursuant to the conviction and sentence of 5 to 7 years for robbery imposed by the Essex County Court on March 22, 1961; and
It is further ordered that the aforesaid discharge of petitioner shall be subject to the right of the State of New Jersey to retain petitioner in its custody under the Essex County indictment for robbery, No. 760-60, and to proceed to a timely retrial of petitioner under that indictment.