For affirmance in part and reversal in part -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman and Clifford and Judge Conford. For affirmance -- Justice Schreiber. The opinion of the court was delivered by Clifford, J. Schreiber, J. (dissenting).
We granted certification, 68 N.J. 164 (1975), essentially to review the Appellate Division's determination that defendant's motion to suppress evidence seized pursuant to a search warrant was properly denied by the trial court. Following a jury trial resulting in convictions of possession of marijuana, possession of the same substance with intent to manufacture and distribute, maintaining premises resorted to by persons for the purpose of unlawful manufacture and distribution of marijuana, and possession of a dangerous knife, defendant was sentenced to four concurrent indeterminate terms at the Youth Correctional Institution Complex. The Appellate Division vacated the judgment of conviction for possession of marijuana, finding it merged with the possession-with-intent-to-distribute count, but affirmed the judgments of conviction on the three remaining counts. 133 N.J. Super. 114 (1975). Execution of the sentence has been stayed and bail continued pending appeal.
Defendant challenges the admissibility of testimony by the applicant for a search warrant at a hearing on a motion to suppress when, as here, the oral statements made by that applicant to the judge issuing the search warrant (hereinafter "issuing judge") have not been transcribed, summarized, or otherwise recorded by the issuing judge. A subsidiary question is whether quite apart from such testimony the warrant nevertheless was properly issued in this case because the applicant's affidavit was sufficient standing alone to establish probable cause. We determine both these issues in defendant's favor and consequently reverse the convictions on the narcotics charges. We affirm so much of the judgment of the Appellate Division as sustains the conviction for possessing a dangerous knife.
At the hearing on the motion to suppress, oral testimony of State Police Detective Sergeant Dale L. Parks disclosed
that his station had received a call from Dr. Norton, as a result of which the detective met with Dr. Norton at the latter's residence. According to Parks, Dr. Norton stated that he and his employee, Donald Quick, had found eighteen plastic bags of green vegetation in a duffel bag in the locked trunk of an old car the doctor had acquired from a resident of the adjoining property, one Ronald Rapp. The discovery was made after Quick informed the doctor that the car, which he had towed that day from the adjacent property and placed behind the doctor's barn, had a new hasp and lock on the trunk. The two men opened the trunk by removing the screws securing the hasp and found the duffel bag inside.
When Detective Parks examined the trunk, he found additional plastic bags similar to the ones previously discovered in the duffel bag. These were empty except for some residue of green vegetation. Parks returned the duffel bag and its contents to the trunk of the car, which then was placed under surveillance. Both the duffel bag and its contents subsequently disappeared.
Detective Parks learned from Dr. Norton and his family and from Quick that three persons occupied the premises adjoining Dr. Norton's home: Rapp, one Rosemary Maholanyi, and defendant. Further investigation revealed that the three had been living there for approximately six months and that there had been an unusual amount of vehicular traffic to and from the premises at all hours of the day and night. While Detective Parks could not determine from the Division of Motor Vehicles who owned the car in which the duffel bag had been found, he did ascertain that the defendant and Rosemary Maholanyi had prior arrests and convictions for narcotics violations.
From the information that he had thus far received, Detective Parks concluded that the premises next to Dr. Norton's residence contained an operation involving the processing and distribution of marijuana. He prepared an affidavit describing the premises to be searched (referring
to it as "the rented residence of Ronald J. Rupp [sic] and Rosemary Maholanyi") and indicating his belief that narcotic drugs were located therein. The grounds for this belief as stated in the affidavit were these:
The facts tending to establish the grounds for this application and the probable cause of my belief that such grounds exist are as follows: On Friday, March 3, 1972, DSG. D. L. Parks #1342 and Tpr. M. Callahan #1374, both members of the New Jersey State Police, with 17 and 11 years police experience respectfully [sic] had occasion to check the contents of an army type duffle bag, which was found in a vehicle which is under the control of Ronald J. Rapp and Rosemary Maholanyi. The contents of the duffle bag were numerous plastic bags, weighing approximately one pound apiece, which contained a green colored vegetation, with many small seeds, which both DSG. D. L. Parks and Tpr. M. Callahan identified as Marihuana. Both these police officers have made arrests of persons for possession of Marihuana, and have assisted in raids in which Marihuana has been recovered, along with other types of narcotic drugs. It is felt that there is the distinct possibility that more Marihuana, or narcotics, or narcotic paraphernalia, or prescription legend drugs may be found in the above described residence, and buildings, which are all accessible to both Ronald J. Rapp, and Rosemary Maholanyi.
The affidavit included none of the other facts or circumstances to which Detective Parks subsequently testified at the motion-to-suppress hearing.
At between 10:30 and 11:30 P.M. on the same day, Detective Parks took the affidavit to the residence of the issuing judge to obtain a search warrant. The judge did not "do anything physical" to him,*fn1 but Detective Parks gave information additional to that contained in the affidavit,
including other facts revealed by the investigation and the sources thereof as recited above. Specifically, he explained to the issuing judge the circumstances of how and from whom Dr. Norton had received the car in question and told him that Dr. Norton was the source of that particular piece of information. No transcription or summary was made of Detective Parks' narration to the issuing judge.
The search warrant, signed and issued on March Third, was executed on the following night. During the interval spot surveillance was kept on the premises. At eleven o'clock on the night of March Fourth, Detective Parks and four troopers conducted the search after being admitted by Rapp and Maholanyi. Discovered were, among other things, bags containing what appeared to be marijuana, residue, stems and leaves of the same substance, empty plastic bags, assorted brass fittings, pipes and strainers, and a grey metal box containing personal papers including the defendant's birth certificate and a pill box in which was found a hard brown substance. The police seized these items and arrested Rapp and Maholanyi. Of the items which the police confiscated, those for which testing was appropriate were analyzed and determined to be marijuana and hashish, in a quantity of about 1205 grams.
The defendant was not at the scene of the search. The police came upon him the next morning near some woods where he apparently had fled the night before. He turned himself in, was placed under arrest and searched, and a hunting knife, tied to the outer back of his pants and concealed beneath his sweater, was taken from his person.
As we have pointed out, the primary question to be resolved is whether the testimony of Detective Parks recounting the information which he gave to the issuing judge in support of the search warrant was admissible at the motion-to-suppress hearing on probable cause for issuance
of the warrant. Although it is unnecessary to cast the answer to this inquiry in constitutional terms, it is nonetheless important to recognize that in this discussion of the validity of a search we are dealing not with a "mere formality" but with an underlying "great constitutional principle embraced by free men and expressed in substantially identical language in both our federal and state constitutions." State v. Macri, 39 N.J. 250, 255 (1963). U.S. Const. amend. IV; N.J. Const. art. 1, para. 7. The motion-to-suppress hearing is the mechanism specifically designed to afford a defendant his most significant opportunity to participate in a process which vindicates the constitutionally-declared right against an unlawful search.*fn2 While our result may originate in a mandate of public policy, it is largely because of a concern for the constitutional right that we insist on a punctilious observance of the most effective precaution against its being undermined -- transcription or contemporaneous (or nearly so) summary of all oral testimony given in support of the application for a search warrant.
Our rules of practice contemplate just such a prophylactic procedure. While it may be that there is not, in so many words, a direct, explicit command in any single rule that the judge holding a probable cause hearing on a search warrant application must have all oral testimony accompanying such application summarized or recorded, nevertheless a requirement of transcription or summarization is clearly implied. R. 3:5-3 instructs the judge to take an applicant's affidavit or testimony before issuing a search warrant. R. 3:5-6, dealing with the filing of warrants, requires that the issuing judge attach to the warrant, inter alia, "a transcript or summary of any oral testimony * * *."
It would be somewhat anomalous for our rules to compel the filing of a transcript or summary, while at the same time not to require that a transcript or summary be made.*fn3
One of the purposes of these rules, reflective of the policy behind today's decision, is to ensure that corroboration of what went on before the issuing judge is in a form which will give a reviewing court some real assurance as to what actually occurred.*fn4 That assurance simply cannot be gained without a transcript or summary. Certainly there is nothing novel about this ingredient of informed and effective review, it having been given recognition elsewhere almost fifty years ago in this precise search warrant context:
Judicial action must be reviewed upon the record made at or before the time that the judicial act was performed. The validity of judicial action cannot be made to depend upon the facts recalled by fallible human memory at a time somewhat removed from that when the judicial determination was made."
[ Glodowski v. State, 196 Wis. 265, 220 N.W. 227, 230 (1928).]
See also, e.g., State v. Robertson, 111 Ariz. 427, 531 P. 2d 1134, 1135-36 (1975); Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204, 206 (Ark. 1974); People v. Brethauer, 174 Colo. 29, 482 P. 2d 369, 374 (1971). Cf. United States v. Freeman, 358 F.2d 459, 462 (2d Cir.), cert. den., 385 U.S. 882, 87 S. Ct. 168, 17 L. Ed. 2d 109 (1966); United States v. Anderson, 453 F.2d 174 (9th Cir. 1971); United States v. Hatcher, 473 F.2d 321, 323-24 (6th Cir. 1973).
Review of an issuing judge's conclusion that there exists probable cause for the issuance of a search warrant entails apperception of certain nuances in the evaluation of supporting evidence. While we may expect the practiced judicial eye to recognize the subtleties, we are loathe to expose the review process to that uncertainty which assuredly must accompany the vagaries of recollection of either the applicant for the warrant or the issuing judge. As observed in State v. Stolzman, 115 N.J. Super. 231, 236 (App. Div. 1971):
[F]or the protection of all parties involved and to facilitate the administration of justice, the recording of testimony, either by transcript or summary, should be mandatory. * * * Without such a record a fair review at a later time is, at the least, extremely difficult. Under R. 3:5-6 a defendant is entitled to know before a hearing on a motion to suppress all of the facts upon which a warrant was issued. Given the large number of warrants that are applied for by individual police officers and issued by judges, it is too great a burden on the administration of justice to rely on the ability of an applicant or an issuing judge to accurately recall such past events.
See also Model Code of Pre-Arraignment Procedure, § SS 220.1(4) and Commentary, pp. 510-11 (Proposed Official Draft, April 15, 1975).
Additionally, we cannot be unmindful of the possibility that an overzealous law enforcement ...