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Presto v. Presto

September 22, 1966

ROSE DEL PRESTO, PLAINTIFF,
v.
ANTHONY DEL PRESTO, DEFENDANT



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

Consodine

[92 NJSuper Page 305] Defendant seeks to bar the admissibility of evidence secured by illegal forcible entry into the corespondent's home by plaintiff and private investigators. The motion raises the broad question of whether Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 1081 (1961), as decided or extended by subsequent decisional law, applies to civil as well as criminal cases.

The mandate of the Mapp case requires all state courts to apply the exclusionary rule, previously specifically confined to the federal courts, Wolf v. People of State of Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), to evidence procured by law officers and governmental officials through unreasonable search and seizure in violation of the Fourth Amendment to the Federal Constitution.

In Mapp, the Supreme Court of the United States said:

"We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by the same authority, inadmissible in a state court." (367 U.S., at p. 655, 81 S. Ct., at p. 1691; emphasis added)

The fiat upon which it is sought to limit the impact of Mapp to governmental seizures only and not to evidence illegally gathered by private persons is the holding in Burdeau v. McDowell, 256 U.S. 465, 41 S.C. 574, 65 L. Ed. 1048 (1921), that the Fourth Amendment is not involved in non-governmental intrusions.

In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S. Ct. 1246, 14 L. Ed. 170 (1965), Justice Goldberg, speaking for the court, stated:

"We granted certiorari, 379 U.S. 927, 85 S. Ct. 323, 13 L. Ed. 2 d 340, to consider the important question of whether the Constitutional exclusionary rule enunciated in Weeks v. United States, 232, U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, and Mapp applies to forfeiture proceedings of the character involved here -- a question on which there has been conflict in both state and federal decisions. For the reasons set forth below, we hold that the constitutional exclusionary rule does apply to such forfeiture proceedings and consequently reverse the judgment of the Pennsylvania Supreme Court."

And,

"It would be anomalous indeed, under these circumstances, to hold that in the criminal proceeding the illegally seized evidence is excludable, while in forfeiture proceeding, requiring the determination that the criminal law has been violated, the same evidence would be admissible."

Prior to this decision it had been persuasively argued that the Burdeau case was, in effect, overruled by Elkins v. United States, 364, U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2 d 1669 (1960), and that this conclusion was also reached in Williams v. United States, 282 F.2d 940 (6 Cir. 1960). See Sackler v. Sackler, 15 N.Y. 2 d 40, 255 N.Y.S. 2 d 83, 203 N.E. 2 d 481 (Ct. App. 1964), affirming 19 App. Div. 2 d 751, 242 N.Y.S. 2 d 715 (App. Div. 1963), (dissent at p. 45).

The Sackler case had to do with facts similar to those sub judice. The Appellate Division had, by a 5-2 vote, reversed the trial court which had suppressed evidence secured by illegal forcible entry into the wife's home by the husband and several private investigators employed by him. The Court of Appeals, by a similar vote, affirmed the intermediate ...


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