Bigley, J.c.c., Temporarily Assigned.
Defendant, a deputy police chief in the Camden Police Department, has been indicted for conspiracy, obstruction of justice and misconduct in office. The charges arise from an alleged attempt to "fix" traffic tickets. Ferrari now brings this motion to suppress the incriminating evidence seized from his office desk at the police department's Patrol Division headquarters. The evidence was discovered during a search conducted by the Chief of Police of Camden and several others between one and two o'clock on the morning of August 6, 1974. Testimony revealed that after an attempted forcible entry the office was entered by using a key obtained from defendant's secretary. It appears that the only other key to the office was in defendant's possession. The desk was forcibly opened with some sort of instrument because the secretary had no key to it. Found within the desk were the two traffic tickets presently the subject of this motion.
The question presented by this motion to suppress is whether the Fourth Amendment to the U.S. Constitution precludes the use of evidence seized by an employer without a warrant when the employer is the government. It appears that the courts of New Jersey have not previously considered this issue. Proper resolution of the question requires, initially, a review of the basic goals of the Fourth Amendment.
Since Katz v. United States , 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), it has been recognized that the Fourth Amendment
The Fourth Amendment gives protection against unlawful searches and seizures . . . its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies . . . (at 475, 41 S. Ct. at 576).
This means that an employer may search those areas of the place of employment that are dedicated to the private personal use of his employees, and if the employer finds evidence of illegal activity, that evidence may be turned over to the police for use in a criminal prosecution. This may be done without the Fourth Amendment requiring suppression of the material. State v. Robinson , 86 N.J. Super. 308 (Law Div. 1965). But where there is collusive activity by the officers of the government and private citizens, the Fourth Amendment precludes the use of evidence which is the product of such activity. Lustig v. United States , 338 U.S. 74, 69 S. Ct. 1372, 93 L. Ed. 1819 (1949); State v. Scrotsky , 39 N.J. 410 (1963); State v. Roccasecca , 130 N.J. Super. 585 (Law Div. 1974).
What must be clearly understood is that this case does not involve the inadvertent discovery of incriminating evidence in the desk of a government employee by either a coworker or supervisor who is looking for something necessary to conduct the day-to-day business of the office. Evidence
discovered under these circumstances would not be barred by the Fourth Amendment. That Amendment was never intended to totally insulate individuals from governmental intrusions into their lives.
Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution. (389 U.S. at 350, 88 S. Ct. at 511 n. 5).
Searches conducted by the government are always measured against a standard of reasonableness. Only those searches deemed unreasonable under the facts of a particular case are to be condemned. Thus, in the case of inadvertent discovery, to read the Fourth Amendment as precluding the use of evidence so obtained would be an unreasonable hindrance in the operation of government offices.
The State's argument against suppression is that an employer has the right to investigate criminal activity engaged in by its employees and to conduct searches of the employees' work and personal areas incidental to such investigations, regardless of whether the employer is private or governmental. In support of this position the State relies on United States v. Robinson, supra , and Shaffer v. Field , 339 F. Supp. 997 (D.C. Cal. 1972), aff'd 484 F.2d 1196 (9 Cir. 1973).
Robinson involved the search by an employer of his employee's locker. In the course of upholding the search the court states, "An employer has a right which it can lawfully exercise * * * to obtain the return of its own materials * * * [n]ot to permit an employer to do so places him at the mercy of his employees." However, there the employer was a private citizen and the police were not involved in the search. Thus, the Fourth Amendment does not ...