For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
The Appellate Division granted defendant leave to appeal from an interlocutory order denying his motion to suppress evidence seized under a search warrant. We certified the matter before argument in that court.
Two men committed an armed robbery. One was caught fleeing from the scene. The other, alleged to be this defendant, made good his escape, but in the course of it he lost his hat and gloves and left a pair of footprints in muddy soil. Plaster casts were made of the footprints. Later a warrant issued for a search in defendant's apartment for a pair of shoes "with half moon heel." Shoes so described were there seized, and defendant's motion was designed to bar their use against him at the trial.
Defendant contends the shoes are "mere evidence" of crime and as such may not be the subject of a search under the Fourth Amendment to the Federal Constitution. Defendant says our rule of court, R.R. 3:2A-2, is invalid insofar as it provides otherwise in subparagraph (c), and he refers to the question raised in that regard in State v. Naturile, 83 N.J. Super. 563, 577 (App. Div. 1964). The entire rule reads:
"A search warrant may be issued to search for and seize any property:
(a) Obtained in violation of the penal laws of this State or any other state; or
(b) Possessed, controlled, designed or intended for use or which has been used in connection with the violation of the penal laws of this State or any other state; or
(c) Constituting evidence of or tending to show any such violation."
The trial court held the shoes were used in connection with a violation of law within subparagraph (b) of the rule, and being thus an "instrumentality" for the commission of crime, as that term is used in this area, they were subject to search
and seizure. The State presses that view before us. It argues also that such tangible articles are not within the federal decisions barring a search for "mere evidence." The State further contends that in any event we are free under Ker v. State of California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2 d 726 (1963), to develop our own "workable rules" of search and seizure and to permit a search for evidence even though it be invalid for federal purposes under decisions of the United States Supreme Court. As to this last proposition, we doubt the states have leeway from the view of the Supreme Court upon this topic. In any event we are satisfied the shoes are not "mere evidence" within the meaning of the federal decisions relied upon.
The concept that mere evidence may not be the subject of a search warrant is attributed to Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886). That case involved a forfeiture proceeding under the customs laws. Pursuant to a statute defendant was there ordered to produce certain invoices upon pain of an adverse finding of fact if he failed to obey. The Supreme Court unanimously held the statute violated the provision of the Fifth Amendment that no person "shall be compelled in any criminal case to be a witness against himself." Two members of the Court believed there was no search or seizure and hence that the Fourth Amendment was inapplicable, but the majority of the Court, speaking through Mr. Justice Bradley, found the Fourth Amendment also stood in the way. Their reliance upon the Fourth provoked unending controversy.
Advocates of the view that a search may not be made for mere evidence say the State may search only for (1) the fruits of crime, (2) things used or intended to be used in the commission of crime, and (3) contraband. The rationale is supposed to be that the State may seize only what the accused is not entitled to possess under principles of property law. More specifically, as to the three categories just mentioned it is said a defendant has no property right in any of them because the fruit of the crime belongs to the victim, things used
or intended to be used in crime become the property of the State under an expansion of the ancient concept of deodand, and there can be no private right in what the law denounces as contraband. Thus when the State searches for such items it is pursuing a possessory right either of its own or of the victim of crime. No trace of that thesis can be found on the face of the Fourth Amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Nonetheless it is said to be etched by the action of the Fifth Amendment upon the Fourth.
If the subject is examined upon principle alone, the property thesis cannot explain government's authority to search. We know that what is seized is in fact taken primarily to be used against the accused rather than to deprive him of some property he ought not to have or to gratify the right of another to acquire the article for its intrinsic worth. When the State searches for a bloodied ice pick, it is not at all interested in its penny value; the State could buy dozens of new ones at a fraction of the cost. Moreover, the question whether the article seized is the fruit of the crime, or is contraband, or has been forfeited by evil use, would frequently depend upon the outcome of the very proceeding in which it is offered to prove guilt. Yet we permit its use against the accused without a prior trial as to his right to possess it, a course which is indefensible if in truth the State's right to use the article depends upon proof that the property right reposes in the State or someone else.
The right-to-possession rationalization of the law of search and seizure is too feeble and too contrived to endure. If "evidence" as such may not be seized under the Fourth Amendment, if that amendment affords but a summary remedy in replevin to satisfy the property right of government ...