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State v. Ferrari

Decided: April 21, 1976.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MARIO FERRARI, DEFENDANT-RESPONDENT



Kolovsky, Bischoff and Botter.

Per Curiam

With leave granted, the State has taken this interlocutory appeal (R. 2:3-1; R. 2:5-6(a)) from an order suppressing unprocessed traffic tickets found in a warrantless search of the locked desk of defendant, the Deputy Chief of Police of the City of Camden. The desk was in defendant's office at police headquarters. The traffic tickets had been issued some months before to another police officer in the department and, after the seizure, that officer and defendant were both indicted for (a) conspiracy "to fix" traffic tickets, (b) obstructing justice and (c) misconduct in office.

The testimony in this case makes it difficult to discern the reason for entering defendant's office at one o'clock in the morning, breaking open his locked desk and searching through his papers until incriminating evidence was found. Police Chief Harold Melleby testified at the hearing on the motion to suppress that the traffic tickets were found on top of the desk (a "plain view" claim) and that the desk was not broken open. This evidence was contradicted by the City Attorney, Martin F. McKernan, Jr., who was called as a witness by the trial judge. McKernan's persuasive and credible testimony was accepted by the trial judge. Appellant does not now dispute that the tickets were found after the

desk had been broken open. However, appellant contends that the search was justified as an administrative search by an employer "to monitor and supervise the activities of his subordinate," and that it was not part of a criminal investigation of defendant as found by the trial judge.

The police chief testified as to the background of this search and seizure conducted in the early morning hours of August 6, 1974. He had previously begun disciplinary proceedings against defendant based upon unrelated matters. Thereafter the chief received reports of emotional outbursts by defendant and of an assault by defendant upon defendant's wife during a quarrel. The chief claimed that he also received word that defendant was removing some files from his office and had compiled "dossiers" -- the gathering of information -- on himself, Detective Kelly and a Mr. Senatore of the County Prosecutor's Office. (Mr. Finnegan, an Assistant County Prosecutor, may also have been the subject of a reported dossier.) However, Chief Melleby denied that he was "too concerned" over that information being removed by defendant from his office.

On August 5, 1974, following defendant's alleged assault on his wife, the chief consulted with the city attorney, expressing his concern about further violent outbursts by defendant. McKernan then went to see defendant at defendant's office. At McKernan's suggestion defendant surrendered his service revolver and made an appointment to see a psychiatrist either for therapy or to verify his sanity. McKernan also asked defendant for the alleged dossiers but defendant said he had none. They both then left defendant's office. McKernan returned to the chief's office, handed over defendant's service revolver, reported on defendant's appointment with a psychiatrist and said that the problem was solved.

Despite this the chief said he wanted "to go through" defendant's office. He asked McKernan's opinion as to his right to do so. McKernan said he had that right but there was no point in going there at that hour (it was then 10:30 P.M.), and if there was any fear of defendant removing anything

from the office, a guard could be posted at the door until morning. However, this did not satisfy the chief.

The chief called Finnegan and advised McKernan that Finnegan was leaving Margate and was on his way. McKernan asked what Finnegan was going to do and was told that Finnegan would talk to him when he got there. While waiting for Finnegan, McKernan advised the chief against "allowing the prosecutor -- for us allowing, accommodating and actually providing entrance into a City office for the prosecutor's office to go through without some kind of a search warrant."

Finally, Finnegan and Senatore arrived. Finnegan said he ought to get into the office and McKernan told him to get a search warrant. It was then midnight. They discussed getting a search warrant the next morning and McKernan said he would not oppose the application. During this discussion efforts were being made to pry open the office door but they were unsuccessful. McKernan's testimony described the events from this point on as follows:

Chief Melleby instructed someone to contact Deputy Chief Ferrari's secretary and order her to come there with the key. So during all this time. As I say, Mr. Finnegan and I were talking, discussing, at times heatedly the entrance of the prosecutor's office into the Deputy Chief's office and Mr. Finnegan was indicating this was an obstruction of criminal investigation and so forth and I said that I really didn't feel that I was obstructing ...


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