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 Proctor, J.
[52 NJ Page 509] The sole question before us is whether an arrest warrant for a misdemeanor may constitutionally be issued by a deputy clerk of a municipal court, as permitted by statute and court rules. Defendant contends that a deputy clerk is not an impartial judicial officer as required by the United States Supreme Court's interpretation of the fourth amendment.*fn1
The facts are undisputed. On February 6, 1967, defendant's wife signed a complaint in the municipal court of New Brunswick charging that the defendant failed to support her and their two children in violation of N.J.S. 2 A:100-2, an indictable misdemeanor. The complaint was taken by the deputy court clerk of the municipal court, who issued a warrant for the defendant's arrest. The parties stipulate:
On February 20, 1967, the Defendant was at his apartment at 167 Remsen Avenue in New Brunswick when two officers of the Police Department of that city, armed with the above warrant, displayed the same to his wife and gained entrance thereto. When asked where Defendant was, the wife pointed to the bathroom door and left the room. At the hearing upon Defendant's motion to suppress evidence, the officers testified that they knocked on the bathroom door and saw the Defendant with narcotic paraphernalia, when he parted the curtains covering the glass on the door, apparently to see who had knocked.
The officers subsequently forced the door and conducted a search in which they discovered incriminating evidence. Defendant was placed under arrest and taken into custody.*fn2
The defendant was indicted for unlawful possession of heroin, and before trial moved to suppress the evidence obtained pursuant to his arrest on the ground that his fourth amendment rights had been violated. The motion was denied by the county court and the Appellate Division granted leave to appeal. The Appellate Division reversed the trial court, holding that to the extent that the New Jersey statute and court rules permit the issuance of an arrest warrant by a deputy clerk, they contravene the fourth amendment. On the State's petition the Appellate Division granted a rehearing
and recalled its opinion. Because the rules of this Court were being challenged, we then certified the matter upon the Appellate Division's request.
N.J.S. 2 A:8-27 provides that "* * * any magistrate of a municipal court, any clerk or deputy clerk thereof * * * may, within the municipality wherein an offender may be apprehended, administered or take any oath, acknowledgment, complaint or affidavit to be used in the proceedings, issue warrants and summonses * * *." R.R. 8:3-2(a)(2) states that "In the case of indictable offenses other than high misdemeanors and in instances of non-indictable offenses, if it appears from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it." R.R. 8:3-2(b)(1) provides in part: "The warrant shall be signed by the committing magistrate or tested in his name and signed by the person empowered by law to take complaints." See also R.R. 3:2-2(a)(1) and R.R. 8:3-2(a)(1) with regard to high misdemeanors. It is clear that the statute and rules, read together, authorize a deputy clerk to issue an arrest warrant.
Defendant does not assert that the facts set forth in his wife's complaint provide an insufficient basis for his arrest. Rather, he contends that the fourth amendment's guarantee that "no Warrants shall issue, but upon probable cause * * *" as construed by the United States Supreme Court, requires that a neutral and detached judicial officer make the determination. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2 d 441 (1963); Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1947). Defendant asserts that a deputy clerk of a municipal court is not a judicial officer within the meaning of the above cases, and that therefore the statute and rules permitting the practice are unconstitutional, and his arrest illegal. Were defendant to prevail, it would follow of necessity that the evidence seized as a result of an illegal arrest must be suppressed.
Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2 d 1503 (1958).
With regard to the issuance of a warrant, there is no doubt that if a determination of "probable cause" is to have any meaning, it must be made by a neutral and detached court official who is immune from "the often competitive enterprise of ferreting out crime." Johnson v. ...