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August 25, 1976

STATE OF NEW JERSEY, et al., Respondents. ANGELO ALBANESE, Petitioner, v. HOWARD YEAGER, et al., Respondent.

The opinion of the court was delivered by: STERN

STERN, District Judge

 These consolidated petitions for writs of habeas corpus come before the Court on remand from the United States Court of Appeals for the Third Circuit for reconsideration in light of Stone v. Powell, 44 U.S.L.W. 5313 (U.S. July 6, 1976), decided by the Supreme Court after oral argument was heard on these cases in the Court of Appeals. United States ex rel. Frank Petillo v. State of New Jersey, et al., No. 75-2311 (3rd Cir. August 4, 1976). This Court incorporates by reference its original opinion, 400 F. Supp. 1152 (D.N.J. 1975), in this opinion.

 In Stone, the Supreme Court held "that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment Claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 44 U.S.L.W. at 5321. The question to be addressed here, therefore, is whether these petitioners were provided such an opportunity.

 In the original opinion, this Court discussed at length the question "whether the exclusion remedy for Fourth Amendment violations ought to be viewed as of constitutional dimension for purposes of collateral attack by petition for a writ of habeas corpus." 400 F. Supp. at 1186, n.17. The Court noted that such a constitutional claim often "has little or no bearing upon the issue of guilt or innocence or upon the integrity of the fact-finding process," and that on collateral review "the asserted deterrent purposes of the exclusionary rule are likely to be so attenuated as no longer to warrant its application." Id.

 The Court was aware of the pendency of Stone, and specifically examined the restrictive standard for application of the exclusionary rule on collateral review enunciated by Mr. Justice Powell, the author of the Supreme Court's opinion in Stone, in his concurring opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 250, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). 400 F. Supp. at 1186-1187, n.17. It is this Court's view that the reasoning and result of Mr. Justice Powell's concurring opinion have now been adopted by the majority of the Supreme Court in Stone. 44 U.S.L.W. at 5317.

 In its original opinion this Court wrote:

. . . Even the concurring Justices in Bustamonte, who would reduce the scope of the exclusionary rule on collateral review, recognize the necessity of a full and fair hearing of Fourth Amendment claims in either state or federal court:
Where there is no constitutional claim bearing on innocence, the inquiry of the federal court on habeas review of a state prisoner's Fourth Amendment claim should be confined solely to the question of whether the defendant was provided a fair opportunity in the state courts to raise and have adjudicated the Fourth Amendment claim.
412 U.S. at 266 (Emphasis added)
Upon examination of the instant record within the scope of review suggested by Mr. Justice Powell, the Court must conclude that both petitioners were denied a full and fair hearing on their Fourth Amendment claims, in violation of the Due Process Clause of the Fourteenth Amendment. . . .

 400 F. Supp. at 1187, n.17.

 New Jersey has fashioned a rule which deprives all defendants of a state forum "for the full and fair litigation" of such Fourth Amendment claims. That rule was announced on the direct appeal of one of the petitioners now before the Court. State v. Petillo, 61 N.J. 165, 293 A.2d 649 (1972), cert. denied, 410 U.S. 945, 35 L. Ed. 2d 611, 93 S. Ct. 1393 (1973). Under the Petillo Rule the subject of a search is simply not entitled to litigate his federal claim -- that evidence seized pursuant to a warrant procured by police perjury ought to be suppressed -- in state court. Whatever his rights to sue later until the Civil Rights Act or to seek subsequent criminal prosecution of officers who have perjured themselves, and however effective these supposed remedies may be, the injured defendant still has a constitutional right to suppress the fruits of the search. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). Stone does not diminish this right, but only the circumstances under which it may be claimed on collateral review. New Jersey thus effectively denies the subject of the search the right to suppress the fruits of warrants procured by perjury by denying him a hearing on the veracity of the underlying affidavit -- no matter how compelling his preliminary showing of perjury may be.

 This Court has carefully examined the opinion of the Supreme Court in Stone, and in compliance with the directive of the Court of Appeals has sought and received the views of counsel on the question of Stone's effect on the instant cases. The Court is convinced that both petitions fall squarely within the remaining ambit of application of the exclusionary rule on collateral review.

 The Supreme Court's holding could not be more clear. The question before the Court involved only state prisoners "who have been afforded the opportunity for full and fair consideration of their reliance upon the exclusionary rule with respect to seized evidence by the state courts at trial and on direct review." 44 U.S.L.W. at 5320. This Court has held that the instant petitioners do not fall into that category. Having determined that petitioners have made a sufficient "showing that [they were] denied an opportunity for a full and fair ...

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