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 Francis, J.
[42 NJ Page 337] Defendants Dr. George Doyle and his wife, Mona Doyle, were convicted of committing a criminal abortion upon one Pauline Fealey in violation of N.J.S. 2A:87-1. The Appellate Division affirmed. State v. Doyle, 77 N.J. Super. 328 (App. Div. 1962). Appeal as of right was taken to this Court under R.R. 1:2-1(a). The basis for resort to the rule was alleged violation of the Fourth Amendment to the United States Constitution which prohibits unreasonable searches and seizures. More specifically, defendants
claimed the search of their home by police officers on the night of the abortion, and the seizure of certain articles therein which were used in evidence against them at the trial transgressed that amendment. Certain additional trial errors were raised and disposed of adversely to the Doyles in the Appellate Division. The contentions relating to them were renewed in this Court.
On the original argument of the appeal before us, we were convinced that the seized articles were inculpatory in character and their admission in evidence sufficiently prejudicial as to require reversal of the conviction if the seizure was unlawful. See Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2 d 171 (1963). On the argument, however, certain additional circumstances were brought to the fore which, in our judgment, required remand of the record to the trial court for the taking of further testimony with respect to the search and seizure problem. State v. Doyle, 40 N.J. 320 (1963).
The criminal offense occurred on December 2, 1960. The trial began on June 6, 1961, consumed 23 days and was completed on June 29, 1961. On June 19, 1961 the United States Supreme Court decided Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961). The day after Mapp came down, the prosecutor introduced certain inculpatory evidence which had been seized at the Doyle home on December 2, 1960. When the offer was made defense counsel conceded they were not questioning the lawfulness of the search. But, after conviction and sentence, the constitutionality of the search and seizure was questioned on appeal to the Appellate Division. The explanation for failure to raise the question during the remaining nine trial days after the Mapp decision, or before sentence, was that counsel did not become aware of the change in the law resulting therefrom until after the appeal was taken. The explanation was amplified by testimony on the remand referred to, and we have concluded that it should be accepted in order to dispose of the case on the merits of the constitutional issue.
As our earlier per curiam opinion recited, the record revealed that when defense counsel said at the trial they did not attack the propriety of the search and seizure, the prosecutor refrained from adducing evidence to demonstrate its legality. Consequently we felt that justice called for a remand to the trial court to permit both State and defense to bring forward all pertinent evidence of the circumstances surrounding the search of the Doyle home and the seizure of the articles produced at the trial, as well as any proof which the State claimed established that the search and seizure were incidental to a valid arrest of the Doyles. 40 N.J., at pp. 324-325.
Following the remand considerable testimony was introduced with respect to the circumstances of the arrest and its relationship to the search and seizure. At the conclusion of the hearing, the trial court found that the police officers, although acting without an arrest warrant, had made a lawful arrest in the early morning of December 3, 1960 because they had reasonable ground to believe that a felony had been committed by the Doyles. He further held that the search and seizure were incidental to the arrest and therefore also lawful. The additional testimony and findings have been returned to us, argument has been had thereon, and we now have the entire matter for determination.
The complete record, original and supplemental, adequately supports the conclusion of the trial court. It appears that on November 29, 1960 the county court issued a warrant to search the Doyle residence "in the daytime or in the evening at any time prior to midnight" within ten days. The affidavit on which it was based was palpably insufficient in the light of Mapp v. Ohio, supra, and more particularly, State v. Macri, 39 N.J. 250 (1963). For that reason the warrant has been disregarded in our determination of the appeal.
The police officers had information that an abortion was to be performed in the Doyle home on December 2, 1960. As a consequence they had the premises under surveillance. About
ten minutes after eight in the evening a Ford automobile bearing New York registration plates drove up to Dr. Doyle's address. Two women, later identified as Mrs. Pauline Fealey and Mrs. Robert Intrieri, left the car and entered the house. Around midnight they emerged. Mrs. Fealey was helped down the porch steps and into the car by Dr. Doyle. Mrs. Intrieri got into the driver's side of the car and they drove away. A police car stopped the Intrieri vehicle after it had traveled a short distance. The officer operating the patrol car brought Mrs. Intrieri to the nearby car of Captain Walter H. Spahr of the prosecutor's office, who was in charge of the investigation. A conversation ensued in which Mrs. Intrieri told the captain that Dr. Doyle had just performed an abortion on Mrs. Fealey. She had been present and had assisted in the operation by holding one of Mrs. Fealey's legs while Mrs. Doyle held the other. Captain Spahr and Mrs. Intrieri then returned to the Intrieri car and talked with Mrs. Fealey. On being informed of the Intrieri statement, Mrs. Fealey admitted that Dr. Doyle had aborted her and that she had paid $150 to his wife, Mona Doyle, for the operation. Spahr then ordered that she be taken to the county medical officer's office for examination.
Immediately after Mrs. Fealey had been driven away. Captain Spahr asked Mrs. Intrieri to return to the Doyle house with him and Detective Kikkert, and ring the bell for them. She agreed to do so and on arriving there, they were met by two other police officers, Morrissey and Krause. At Spahr's direction, the three officers stationed themselves on the Doyle porch and Mrs. Intrieri rang the bell. In response, the porch light went on and the front door was opened by the foster son of the Doyles. When this occurred, the officers went in. The time was about 12:20 A.M. Morrissey was first and the testimony shows that as they entered, Detective Kikkert said, "We are from the police." Also, as they started up the stairs to the Doyle apartment which was on the second floor of what apparently is a two-family house, Morrissey called out that [42 NJ Page 341] they were police officers. Dr. Doyle was standing at the top of the stairs and as Morrissey neared, he kicked him. Morrissey pushed the doctor against the wall and held him momentarily. Officer Krause then took hold of his arm. Further identification was given and shortly thereafter, the search warrant was produced. (One of the grounds of appeal presented to us is that since the entry and search took place shortly after midnight, the warrant had no legal efficacy because of the time limitation adverted to above. In view of the result reached, it is not necessary to discuss the problem and it is reserved. See R.R. 3:2A-6(b).) Dr. Doyle was taken to the kitchen at the direction of Captain Spahr (who had waited across the street until the entry was made). As one officer put it: "I took Dr. Doyle into the kitchen and kept him in custody." Mrs. Doyle apparently had gone or was about to go to bed when the police entered the house. She appeared and obviously was nervous and excited. The testimony is in conflict as to whether she was in pajamas or dressed except for her shoes. She wanted to go to the bathroom but, on learning that no search had been made as yet, Spahr refused to allow her to leave her position in the hallway. The various rooms in the house were then searched and the articles, later introduced at the trial, were found. It is undisputed that Dr. and Mrs. Doyle were allowed no freedom of movement from the time the officers entered until the search was completed. (The doctor was permitted, however, to give his ...