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State v. Lowry

Decided: May 9, 1967.


On motion to suppress.

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


[95 NJSuper Page 311] Alan Lowry and Benjamin Ferguson, adults, and B, a juvenile aged 17, move to suppress evidence, R.R. 3:2A-6, seized as the result

of an allegedly illegal search of a parked car in which they were seated.

Defendants Lowry and Ferguson are charged with unlawful possession of a narcotic drug, to wit, marijuana, N.J.S.A. 24:18-4. Juvenile B is charged with an offense under the Juvenile Delinquency Act, N.J.S. 2A:4-14(1)(a) in the Essex County Juvenile Court, the disposition of which is awaiting the outcome of this motion.

All defendants urge the court to suppress the evidence -- marijuana cigarettes and a handkerchief filled with pieces of chopped tobacco leaves, identified as marijuana -- because the search of their person and the car was warrantless and not incident to a valid arrest.

The issues presented are (a) whether the Fourth Amendment right is applicable to a juvenile, and (b) if the answer is in the affirmative, is the motion to suppress rule, R.R. 3:2A-6, the proper method of implementing that right.

No authority has been cited by counsel nor has research disclosed any officially reported precedent dealing precisely with these issues in this State.

The State did not oppose the procedural aspect of the juvenile's motion to suppress, and it agreed with the court (also with the express consent of counsel for both adult defendants) to hear the entire matter in camera to insure privacy for the juvenile, R.R. 6:9-1, and to avoid hearing any portion of a juvenile matter in a courtroom regularly used for adult criminal cases, R.R. 6:2-6.


The Fourth Amendment to the United States Constitution provides:

"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."

This constitutional mandate is a fundamental right of all persons regardless of age. Urbasek v. People, 76 Ill. App. 2 d 375, 222 N.E. 2 d 233, 238 (App. Ct. 1966). The reason some basic constitutional rights, such as indictment by grand jury, right to speedy and public trial and right to trial by jury, were not applied with respect to juveniles was on the basis that the juvenile court was established as a civil court under a guardianship philosophy, the theory being that the interests of society and the minor would best be served by a solicitous attitude in the juvenile's care and training. The State assumes the position as parens patriae, and under its protective and rehabilitative ideals informal and confidential procedures developed, vouchsafing constitutional safeguards only when required by the concept of due process and fair treatment -- not by direct application of the constitutional clauses. Pee v. United States, 107 U.S. App. D.C. 47, 274 F.2d 556 (D.C. Ct. App. 1959). It is noteworthy that the Pee decision referred to rights guaranteed by the Fifth, Sixth and Eighth Amendments, constitutional protections afforded persons involved in criminal prosceutions, thereby necessitating their application to a juvenile proceeding (noncriminal in nature) through the concept of due process. But the Fourth Amendment, not limited to persons accused of crime, should be interpreted to be applicable to all persons in accord with its terms, thereby rendering the media of due process unnecessary in granting that right to a juvenile.

Even adopting the view that a juvenile will realize constitutional rights only if required under due process of law and fair treatment, it appears that the evolution of the Fourth Amendment right leads to the same result.

The beginning concepts of illegal search and seizure were dealt with in Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886), wherein the court stated:

"It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; * * * it is the invasion of his indefeasible right of personal security, personal liberty, and private property * * *." (at p. 630, 6 S. Ct., at p. 532, emphasis added)

Less than 30 years later the exclusionary rule was born in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), applicable only to the federal courts, wherein the court stated that the protection of the Fourth Amendment "reaches all alike, whether accused of crime or not * * *." Weeks (at p. 392, 34 S. Ct., at p. 344). The rule subsequently became applicable to the states through the due process clause of the Fourteenth Amendment. Wolf v. People of State of Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949).

"The security of one's privacy against arbitrary intrusion by the police -- which is at the core of the Fourth Amendment -- is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause." (at p. 27, 69 S. Ct., at p. 1361)

To the extent Wolf refused to extend the Fourth Amendment right to state prosecutions wherein the evidence was illegally obtained by state officials, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), overruled it, applying the whole of the Fourth Amendment to the States through the Due Process Clause.

"Today we once again examine Wolf's constitutional documentation of the right to privacy free from unreasonable state intrusion, and * * * are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." (at pp. 654-655, 81 S. Ct., at p. 1691, emphasis added)

The historical development clearly indicates that the rule is not only a basic right of all persons to privacy, security and liberty, whether accused of a crime or not, but is fundamental to the concept of due process, a principle ...

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