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September 12, 1975

United States of America ex rel. Frank PETILLO, Petitioner,
STATE OF NEW JERSEY et al., Respondents. Angelo ALBANESE, Petitioner, v. Howard YEAGER et al., Respondents

The opinion of the court was delivered by: STERN

 Petitioners seek writs of habeas corpus pursuant to the provisions of Title 28 U.S.C. § 2254. Petitioner Petillo commenced Civil Action No. 1252-73 on August 28, 1973. Petitioner Albanese began Civil Action No. 1808-73 on December 14, 1973. The two actions were consolidated by order of the Court on November 22, 1974, on consent of all parties, on the basis of the applicability to both of the common question of law known in this State as the "Petillo Rule." Federal Rule of Civil Procedure 42(a).


 The Essex County Grand Jury charged Petitioner Petillo, in Indictment Nos. 3853-70 and 3854-70, with unlawfully keeping a place to which persons may resort for gambling, and with bookmaking, in violation of N.J.S.A. 2A:112-3.

 A pretrial motion to suppress evidence seized pursuant to a search warrant signed by a judge of the Superior Court was denied on November 13, 1970. Petitioner filed a petition for leave to appeal from that ruling, which was denied on December 9, 1970. He was tried and convicted by a jury in Superior Court, on both charges, on February 17 and 18, 1971. Petitioner was sentenced, on March 18, 1971, to a term of one-to-three years in the State Prison and a $2,000 fine for bookmaking, and to a concurrent one-to-three year term for keeping a place to which persons may resort for gambling.

 Petitioner appealed to the Appellate Division of the Superior Court, and the appeal was certified by the Supreme Court of New Jersey before argument in the Appellate Division. The convictions were affirmed by the Supreme Court on July 5, 1972. State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972). On February 20, 1973, a petition for a writ of certiorari was denied by the Supreme Court of the United States, Mr. Justice Douglas dissenting. Petillo v. New Jersey, 410 U.S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973). Petitioner Petillo has thus exhausted all available state remedies, within the meaning of Title 28 U.S.C. § 2254(b).

 The Essex County Grand Jury charged petitioner Albanese, in Indictment No. 373-71, with the following offenses: Count 1, possession of lottery slips, in violation of N.J.S.A. 2A:121-3; Count 2, keeping a place to which persons may resort for gambling, in violation of N.J.S.A. 2A:112-3; Count 3, working for a lottery business, in violation of N.J.S.A. 2A:121-3; and Count 4, bookmaking, in violation of N.J.S.A. 2A:112-3. Petitioner was tried before a jury in Superior Court from March 7 to March 13, 1972. A mistrial was declared after the jury was unable to agree on a verdict. On April 17, 1972, petitioner, on the ground of newly discovered evidence, moved for leave to file out of time a motion to suppress evidence. The motion was denied on May 1, 1972. Petitioner was retried and convicted in Superior Court, and was sentenced on July 13, 1972 to a term of one-to-two years on Count 1, two-to-three years on Count 2, one-to-three years on Count 3, and two-to-three years on Count 4, all terms to run concurrently with the term imposed on Count 2. Petitioner's conviction was affirmed by the Appellate Division on September 20, 1973, in reliance on State v. Petillo, supra,1 and his petition for certification was denied by the New Jersey Supreme Court on November 27, 1973. Petitioner Albanese has thus exhausted all available state remedies, within the meaning of Title 28 U.S.C. § 2254(b).

 Petitioner Petillo is presently on parole, but he is still "in custody" within the meaning of § 2254. Although the custody requirement has been interpreted broadly in recent years, cf. Preiser v. Rodriguez, 411 U.S. 475, 486 n. 7, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), "there still remains as a requirement of the habeas corpus jurisdiction of a district court that the petitioner be subject to some 'physical restraint.'" Id. at 486, 93 S. Ct. at 1827. "This need not be actual confinement, but can include supervisory control over the person of the petitioner." Pueschel v. Leuba, 383 F. Supp. 576, 579 (D.Conn.1974). Sufficient "supervisory control" has been found where a defendant was released on personal recognizance pending sentencing, Hensley v. Municipal Court, 411 U.S. 345, 93 S. Ct. 1571, 36 L. Ed. 2d 294 (1973), or awaiting trial, United States ex rel. Russo v. Superior Court, 483 F.2d 7, 12 (3rd Cir. 1973), cert. denied, 414 U.S. 1023, 94 S. Ct. 447, 38 L. Ed. 2d 315 (1973). The Supreme Court has held that "while [a] petitioner's parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the 'custody' of the members of the . . . Parole Board within the meaning of the habeas corpus statute

 . . . ." Jones v. Cunningham, 371 U.S. 236, 243, 83 S. Ct. 373, 377, 9 L. Ed. 2d 285 (1963) (construing Title 28 U.S.C. § 2241). Petitioner Petillo, who is presently on parole, thus satisfies the "in custody" requirement. United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423-424 (3rd Cir. 1975).

 Petitioner Albanese is presently at liberty until further order of the Court, having posted a $5,000 surety bond pursuant to an order of this Court filed on December 19, 1973. (Whipple, J.) Under Hensley and Russo, supra, petitioner Albanese is therefore also "in custody" within the meaning of the habeas corpus statute. The Albanese petition was ordered reassigned to this Court by Chief Judge Whipple on October 23, 1974, because of the pendency of the Petillo petition here and the New Jersey courts' reliance on the "Petillo Rule" in affirming the conviction of Albanese.

 The legal issues presented by the two petitions are closely related. Each petitioner claims that evidence was seized from him under the authority of a search warrant which had been procured by police perjury in the underlying affidavit, and that the evidence so obtained was then used against him at trial. Petitioners further contend that due process was denied them because they did not receive a fair opportunity in state court to demonstrate that each issuing magistrate had been deceived, and that each warrant had been fraudulently procured.

 Petillo, who was granted some opportunity to be heard in state court, alleges that the hearing there was neither full nor fair, and that the state court's factual findings after the hearing were not fairly supported by the record. Albanese, who was not afforded any hearing, alleges that his due process rights were thereby violated.

 On appeal of the state convictions, the New Jersey Supreme Court in Petillo, and the Appellate Division in Albanese (in reliance on Petillo), found no due process violation. The basis for that conclusion was the Supreme Court's holding in Petillo that as a matter of law a defendant in a criminal case is not entitled to any hearing on his claim that the search warrant used to procure evidence against him was itself procured by police perjury, and that the use of such a warrant would not offend the Fourth Amendment:

[For] future guidance [we] feel obliged to deal with the basic question whether the truth of the factual assertions contained in the affidavit submitted in support of an application for a search warrant may be controverted on a subsequent motion to suppress the incriminatory evidence seized in the execution of the warrant. We hold that it may not be done.
* * *
[The] Constitutions are satisfied if a judicial mind decides that the sworn factual allegations set out in the affidavit or testimony sworn to before him show the required probable cause. . . . [Then] the legal propriety of the issuance of the warrant ought to be beyond further question.
* * *
The requirement is sworn statements of fact of sufficient legal quality to persuade an impartial judge that probable cause exists to believe that the crime described is being committed at the place. Once that test is met to the satisfaction of the judge, relitigation of the truth of the factual basis for issuance of the warrant should not be permitted. The ultimate truth of the criminal charge against the accused is not involved on a suppression motion. On the contrary his effort is to avoid the evidence of that truth which provides corroboration of the basic truthfulness of the affidavit. [Citations omitted]
In our view the constitutional safeguards are met when the impartial judge finds the affidavit for the warrant credible and legally sufficient. Compliance with the requirement for an oath by the officer must be regarded as a procedurally adequate manifestation of his veracity. That oath followed by the judge's determination that the facts vouched for show probable cause are all the Constitutions demand and guarantee to our citizens. If the police officers lie, the truth of the accused's alleged criminal activities as revealed by the evidence seized under the warrant will not be diluted. In that event, as the Chief Justice noted in State v. Burnett, supra [42 N.J. 377, 201 A.2d 39], the accused will have to meet nothing more nor worse than the "truth" at a plenary trial. 42 N.J. at 386, 201 A.2d 39. Further, so far as the untruthful officers are concerned, they expose themselves to the sanctions of indictment for perjury or false swearing, a charge of criminal contempt, and assessment of monetary damages in a civil action.

 State v. Petillo, 61 N.J. 165, 173-174; 293 A.2d 649 (1972), cert. denied, 410 U.S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973). (Emphasis in original)

 The first question presented, therefore, is whether the Supreme Court of New Jersey was correct in holding that as a matter of federal constitutional law, no adversary hearing was necessary because the Fourth Amendment is satisfied if a search warrant is based on an ex parte affidavit containing allegations facially sufficient to support the finding of probable cause, whether or not these allegations themselves are misrepresentations or even outright perjury by the police affiant. Although the State urges that the Court need not reach that question here (SB: 6), it has conceded before this Court that the decision in State v. Petillo is not correct, and that a warrant which depends for probable cause upon a perjurious police affidavit is invalid under the Fourth Amendment. *fn2"

 The Court is reluctant to reach constitutional issues if there is any other basis for decision. Cf. Siler v. Louisville & Nashville Ry. Co., 213 U.S. 175, 193, 29 S. Ct. 451, 53 L. Ed. 753 (1909). In the case at bar, however, if New Jersey's interpretation of the requirements of the Fourth Amendment, as set out in State v. Petillo, were correct, there would be no due process right to test the veracity of the supporting affidavit. The pending claim of petitioners would then be moot. No denial of due process could be found by this Court in the manner in which the New Jersey courts resolved petitioners' contentions if those issues are academic because the Constitution is indifferent to their resolution.

 On the basis of the factual and legal analyses which follow, this Court concludes that the Fourth Amendment is violated when a materially inaccurate affidavit, knowingly submitted, forms the basis for the issuance of a search warrant. The Fourth Amendment requires that the proceeds of a search conducted pursuant to such a warrant be suppressed. This Court further finds that the subject of such a search cannot, consistent with due process, be deprived of a fair opportunity to vindicate this federally-guaranteed right, at least once he has made a prima facie showing of its violation. The Court further finds, on the record before it, that these petitioners made such a showing, and that they were denied an adequate opportunity to demonstrate a violation of their constitutional rights.



 The state court record reveals that on March 20, 1970, State Police Lt. Laurent H. Gauthier appeared ex parte before the Honorable Charles S. Joelson, Judge of the Superior Court, for the purpose of obtaining a warrant to search petitioner Petillo's two-story house at 326 Bloomfield Avenue, Bloomfield. Lt. Gauthier executed a lengthy affidavit before the judge in support of his application. In his affidavit, Gauthier stated that he was a member of the Organized Crime Task Force Bureau, North Unit, of the New Jersey State Police, and that he had been a member of the State Police for six years, during which time he had "investigated numerous gambling complaints throughout the State of New Jersey."

 The affidavit states that Gauthier received "information from a reliable informant, whose information has proven to be reliable in the past and whose information has resulted in at least two gambling arrests." The affidavit relates that the informant "advised me that a certain male is conducting a gambling operation, namely Bookmaking and/or Lottery in a one-family house located at 326 Bloomfield Avenue . . .. The informant further advised that he has placed numerous horse bets in the past with this individual over telephone number 429-9377, located in Bloomfield, N.J." Trooper Gauthier further swore that examination of telephone company records revealed that the number 429-9377 was listed in the name of "F. Petillo, 326 Bloomfield Avenue," as was an auxiliary number at the same address, 429-4933.

 The Gauthier affidavit makes the following factual assertions in support of the application for a search warrant:

On Wednesday, March 4, 1970 at approximately 3:15 P.M. I the deponent met with the informant . . . . At this time the informant told the deponent that he could place a bet, more specifically a horse bet over telephone number 429-9377. At this time I dialed telephone number 429-9377. The phone rang two times and was then answered by a male voice who stated hello. At this time I handed the phone to the informant who after identifying himself placed two horse bets with the person on the other end of the phone and then hung up.
On Thursday, March 5, 1970 at approximately 10:00 a.m., I placed 326 Bloomfield Avenue . . . . under surveillance. This address is described as being a two story one family dwelling with white aluminum siding trimmed with black. There are blue awnings above both the front and side entrances. The number 327 appears on the house to the left of the front door. At approximately 11:25 A.M. I observed a late model black Oldsmobile, N.J. registration NLK 307 park in front of the house. A W-Male approximately 5-8 and wearing a brown leather jacket and grey pants emerged carrying a paper bag and went into the side entrance of 326 Bloomfield Ave. Surveillance was terminated at 2:00 P.M. This same date at approximately 2:30 P.M. the deponent met with the same informant . . . . At this time the informant told the deponent that he could place a bet, more specifically a horse bet over the phone number 429-9377. At this time I dialed the above number 429-9377 and found the number to be busy.
Approximately five minutes went by and I again dialed the number 429-9377 and this time the phone rang once and it was picked up. A man's voice said hello and I immediately passed the phone to the informant. The informant identified himself and then placed a bet on a horse with the man on the other end of the phone. On Friday, March 6, 1970 at approximately 11:00 A.M. I again placed the house at 326 Bloomfield Avenue . . . under surveillance. At approximately 11:45 A.M. a late model black Oldsmobile, N.J. registration NLK 307 arrived and parked in front of 326 Bloomfield Avenue. The same white male . . . got out of this vehicle carrying a paper bag and a red trimmed newspaper and entered the side entrance of 326 Bloomfield Avenue . . . .
(Emphasis added)

 The same man was observed leaving the same car and entering the house at 326 Bloomfield Avenue at 11:40 A.M. on March 9, 1970, according to the affidavit. The car was found to be registered to a Montclair resident.

 Petillo filed a written motion to suppress, alleging "that this entire affidavit is vitiated by virtue of the fact that material portions thereof can be demonstrated to be false." (DB (prehearing): 2)

 Upon Petillo's motion to suppress, the Court, over the State's objection, permitted the introduction of oral testimony to controvert the veracity of the Gauthier affidavit. *fn3"

 Petitioner Petillo first called Mrs. Dorothy Waski, Assistant Manager of the Business Office for the New Jersey Bell Telephone Company in Montclair. According to her testimony, which was based on telephone company records she brought with her to court, the telephone number which Lt. Gauthier swore in his affidavit that he had called was unassigned on the days he swore he called it.

 Mrs. Waski, a veteran of 27 years with the telephone company, testified that number 429-9377 was installed in petitioner Petillo's home on December 3, 1969. (Tr. 7/17/20: 25a) She further stated, however, that company records showed that the number was changed on December 18, 1969, nearly three months before the calls the policeman claimed to have made, to 748-8869. (Id.) The company made this change on its own initiative and for its own convenience, in order to avoid billing problems caused by the different exchange assigned to Petillo's second line, 748-4933, which was also installed on or before December 3, 1969. (Id. at 25a-26a)

 According to Mrs. Waski's testimony, on the two dates in question, March 4 and March 5, 1970, petitioner Petillo had two telephone numbers, 748-8869 and 748-4933. (Id. at 27a-28a) Petillo's old number, 429-9377, was unassigned on those dates. Mrs. Waski, with the telephone company records in hand, testified that if a call had been made to 429-9377 on those dates, a live or recorded female intercept operator would have intervened to report that the number dialed was no longer a working line. (Id.) She added that Petillo had not requested a transfer of calls to his new number, and that no such transfer would therefore have been provided. (Id. at 29a) According to the Waski testimony, all physical work necessary to effect the number change was done in the central office of the telephone company, and not at the Petillo home. (Id. at 40a-41a)

 In answer to a question from the court, during cross-examination, whether the interception system could be circumvented by the customer, Mrs. Waski replied: "Anything is possible. But I wouldn't know how they would do it." (Id. at 49a) On redirect, Mrs. Waski noted that only if the tampering were performed by "a very knowledgeable person" could it be accomplished without alerting the telephone repair department. (Id. at 50a) In response to further questioning by the court, she added:

It is really -- I think it would be very difficult. I don't want to say impossible, but I think it would be quite difficult, sir.


 She was unable to say with certainty whether any illegal manipulation of the lines would have been discovered by the telephone company.

 Lt. Gauthier, who had been excluded from the courtroom during Mrs. Waski's testimony, was called to the stand by petitioner. He reiterated that he did indeed dial 429-9377 on each of the two dates in question, and substantially restated the facts alleged in his affidavit in support of the search warrant. (Id. at 52a-53a) In addition, however, Lt. Gauthier testified that not only had he personally heard a male voice answer the phone on each occasion, then passed the receiver and heard the bets placed by the informant as sworn in his affidavit, he had also heard the responses at the alleged bookmaker's end of the line by cupping his ear to the phone while the informant talked. (Id. at 53a-56a) The Gauthier affidavit does not reflect the latter claim.

 The State then applied for a continuance, in order to conduct an investigation to determine if it wanted to adduce additional testimony. The court adjourned the hearing until July 31, 1970, to permit the State to investigate. The State later notified the defense that it could produce no additional testimony. (DB: 3) After conducting an inquiry the State reported to the court that it did not wish to present evidence. (SSB: 4) The factual posture of the case at that juncture was summarized in a post-hearing brief filed by petitioner:

The defendant produced Mrs. Dorothy Waski, the Assistant Manager of the New Jersey Bell Telephone Company office in Montclair and the original telephone company records to establish the history of the telephones registered to the defendant for the following periods of time:
12/3/69 to 12/18/69 he had 429-9377
12/18/69 to 3/20/69 he had 748-8869 (Replaced 429-9377)
12/3/69 to 3/20/69 he had 748-4933 (Auxiliary number)
See pages 15-18 of transcript.
Therefore, on 3/4 and 3/5/70 the defendant had only two phones:
(1) 748-8869 -- the main number installed on 12/18/69
(2) 748-4933 -- the auxiliary number installed ...

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