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State v. Bisaccia

Decided: July 21, 1971.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ROBERT E. BISACCIA, ANTHONY GIACALONE, NICHOLAS PETITO, THOMAS YANNUZZI, MICHAEL J. EQUIEIO A/K/A MIKE JOSEPH EGIDO, AND JOSEPH M. PISANO, DEFENDANTS-RESPONDENTS



For reversal and remandment -- Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Weintraub, C.J. Jacobs, J., concurs in result.

Weintraub

[58 NJ Page 587] The trial court ordered the suppression of evidence seized under a search warrant. The Appellate Division affirmed. We granted the State's petition for certification. 57 N.J. 599 (1971).

The affidavit submitted on the application for the warrant described the premises as:

371 10th Street, Belleville, New Jersey, which is a one story frame building with a store; in front a large sign over the entrance saying Coca Cola Toys -- Candy Coca Cola.

The affidavit mentioned also "the front porch" upon which a look-out was stationed. The search warrant authorized a search of "the premises located at 371 10th Street, a one story frame building Belleville, New Jersey." It did not contain the further factual detail we have quoted from the affidavit.

The officer who executed the warrant was the affiant in the affidavit and he had personally made the surveillance of the premises detailed in the affidavit. The judge who issued the warrant of course intended the very building described in the affidavit, and the structure searched was the very premises the officer described in his affidavit. The motion to suppress rested upon the fact that the correct number of the building was 375, rather than 371. But the building was unmistakably described in the affidavit. It was a one-story frame building; it had a store; there was the sign reading "Coca Cola Toys -- Candy Coca Cola"; and it had a front porch. No other structure in the vicinity matched that description. There would have been no problem had the warrant contained that further description. See State v. Daniels, 46 N.J. 428 (1966).

The error as to street number occurred this way: The one-story building described in the affidavit did not bear a street number. It stood between two two-story structures, one of which was numbered 373. The officer concluded that the premises in question, if numbered, would be numbered 371. In fact the numbers ran the other way, so that the number attributable to the premises in question was 375. At 371, there was an empty lot with a small unused garage in the rear, a distance variously estimated from 50 to 100 feet from the sidewalk. The building in question, like those

near it, had a setback of five feet. Neither the vacant lot nor the garage bore an identifying number; the number 371 is to be found, we gather, only on the tax bill for the lot. The nearest one-story building on either side of the street was four or five houses away from the property here involved.

In deciding whether the rule of suppression innovated as to the States by Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), should be applied, it is well to reflect upon the competing values involved.

Truth and justice are inseparable. A deliberately false judgment debases the judicial process, and no less so because the false judgment is an acquittal. On a motion to suppress we deal with evidence of guilt, and the purpose of the litigant is to conceal that evidence to the end that he will escape conviction notwithstanding his guilt. Hypothetically there could be some case in which the evidence sought to be suppressed would falsely suggest guilt, but a judge would be short in realism if he did not understand that the evidence he is asked to suppress is evidence of guilt and that the judgment of not guilty which will ensue will likely be false. To justify so serious an insult to the judicial process, some compensating gain should be incontestable.

One cannot reasonably deny the need for some remedy for a breach of the Fourth Amendment guaranty against an unreasonable search and seizure. The question is whether suppression of the truth with the consequent acquittal of the guilty is a fair and an effective measure to that end. The ostensible reason for the rule is to assure compliance with the Fourth Amendment by barring the use of the fruits of a violation. That suppression is effective in curtailing infractions of the Amendment is quite doubtful. See Oaks, "Studying the Exclusionary Rule in Search and Seizure," 37 U. Chi. L. Rev. 665 ...


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