On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Hughes and Justices Mountain, Clifford, Schreiber and Handler. For remandment -- Justice Pashman. The opinion of the court was delivered by Clifford, J. Pashman, J., dissenting.
[80 NJ Page 564] We granted certification, 77 N.J. 497 (1978), to review the Appellate Division's affirmance, in an unreported opinion, of Richard Howery's conviction on three drug charges: possession of heroin with David Townsend and John Clark in violation of N.J.S.A. 24:21-20(a)(1); distribution of heroin with Townsend and Clark contrary to N.J.S.A. 24:21-19(a)(1); and conspiracy with Townsend and Clark to distribute heroin, a violation of N.J.S.A. 24:21-24. Townsend and Clark pleaded guilty and testified on behalf of the State. After the jury's guilty verdict,
Howery received consecutive terms of 10 to 12 years in New Jersey State Prison on the possession and distribution charges and a concurrent term of 3 to 5 years on the conspiracy conviction.
Before the Appellate Division defendant alleged error both as to his sentence and as to several trial rulings, including the admission of evidence obtained pursuant to a warrant search of his residence. Howery contended that the search warrant was invalid because the affidavit submitted in support thereof contained false statements material to a showing of probable cause. At the trial level hearing on his motion to suppress that evidence, defendant had sought to call witnesses for the purpose of establishing this falsity. The trial court disallowed the challenge, feeling bound by this Court's opinion in State v. Petillo, 61 N.J. 165 (1972), cert. den., 410 U.S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973),*fn1 which held that a defendant may not challenge a facially sufficient search warrant on the ground that a supporting affidavit contains untruthful statements. Likewise in reliance on Petillo the Appellate Division rejected the attack on the warrant, recognizing that "on a motion to suppress evidence seized in execution of a search warrant, examination of a person whose affidavit supported the application for the warrant would normally be precluded"; and that "[t]he existence of probable cause for the warrant would be tested by what was presented to the issuing officer."
While Howery's appeal was pending in the Appellate Division, the United States Supreme Court granted certiorari in a case which squarely addressed the same issue decided by this Court in Petillo, supra, and raised here by Howery, namely, whether a criminal defendant must be allowed to challenge the validity of a search warrant on the basis of alleged false statements in a supporting affidavit. In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), decided only a few days after this Court granted Howery's petition for certification, the Supreme Court ruled as a matter of federal constitutional law that where a defendant makes a substantial preliminary showing of material misstatements in a search warrant affidavit, made knowingly or with reckless disregard for the truth, he must be afforded an opportunity to inquire further into the veracity of the affidavit. If at such inquiry the defendant proves such falsity by a preponderance of the evidence, the warrant is invalid and the evidence seized thereby must be suppressed. 438 U.S. at 155, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.
The Supreme Court's Franks decision resolved a conflict that had arisen in the state and lower federal courts over the application of state and federal constitutional principles to veracity challenges, both as to whether such challenges should ever be permitted, and, if so, under what circumstances they should be entertained. See 438 U.S. at 158, 98 S. Ct. at 2678, 57 L. Ed. 2d at 674 nn. 3 & 4. Among the decisions which had addressed the question was this Court's opinion in State v. Petillo, supra, wherein we held, with what was then the overwhelming majority of courts, that to permit such challenges was not required by the Federal Constitution. 61 N.J. at 175-76. Nor did our State Constitution compel a different result, ibid., again aligning us with the majority of those courts which had looked to their respective constitutions. In Petillo this Court, in considering the competing considerations that determine the scope of suppression
remedy, looked to the nature of the constitutional guarantee against unreasonable searches and seizures, the interest of the public in prosecuting criminals, and the availability of other remedies in vindicating rights secured by the Fourth Amendment to the United States Constitution and Article I, para. 7 of the New Jersey Constitution. Id. at 173-79. In our view a sworn affidavit submitted to an impartial judge, establishing on its face legally sufficient probable cause, satisfied the demands of the Fourth Amendment and of Art. I, para. 7; and if the affidavit supporting a search warrant contained a false statement by a police officer, sufficient remedy for such perjury would lie in a criminal prosecution or a civil action against the untruthful officer. 61 N.J. at 174.
Insofar as our opinion in Petillo imposed an absolute ban on veracity challenges, unquestionably it has been overruled by Franks. However the Franks court, in holding that veracity challenges must be permitted, was mindful of the concerns which underlay our decision in Petillo. Having articulated those same competing considerations, the Supreme Court concluded that "because of them, the rule announced today has limited scope, both in regard to when exclusion of the seized evidence is mandated, and when a hearing on allegations of misstatements must be afforded." 438 U.S. at 166-167, 98 S. Ct. at 2682-2683, 57 L. Ed. 2d at 679-80.
The limitations imposed by Franks are not insignificant. First, the defendant must make a "substantial preliminary showing" of falsity in the warrant. Id. at 681, 98 S. Ct. at 2684, 57 L. Ed. 2d at 681. In keeping with the purpose of the exclusionary rule as a deterrent to egregious police conduct, the defendant cannot rely on allegations of unintentional falsification in a warrant affidavit. He must allege "deliberate falsehood or reckless disregard for the truth," pointing out with specificity the portions of the warrant that are claimed to be untrue. These allegations should be supported by an offer of proof including reliable statements by witnesses, id. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at
682, and they must be proved by a preponderance of the evidence. Finally, the misstatements claimed to be false must be material to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause. Id. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682.
We note that subsequent to Franks the California Supreme Court has gone beyond the requirements of that decision by interpreting its own state constitution. That Court has held that a warrant is invalid when a supporting affidavit is found to contain any deliberate untruth, whether the misstatement is material or not, because in its view the discovery of a deliberate falsity, even if itself unimportant, undermines the credibility of the entire affidavit. People v. Cook, 22 Cal. 3d 67, 148 Cal. Rptr. 605, 583 P. 2d 130 (1978). In view of the reasoning in our opinion in State v. Petillo, based in part on an interpretation of this State's constitution, we decline to follow the California approach. Hence we hold that New Jersey courts, in entertaining veracity challenges, need go no further than is required as a matter of Federal Constitutional law by Franks v. Delaware, supra.
Although Franks v. Delaware was decided subsequent to the suppression hearing and trial in this case, Howery urges that the rule announced in Franks should be applied retroactively. It is his contention that if the Franks rule is applied to the facts as adduced at his trial, he will be entitled to suppression of the evidence seized in the search of his home and thus to a new trial.
In State v. Nash, 64 N.J. 464, 469-70 (1974), this Court identified the four approaches that have been developed with respect to the applicability of a new rule of law: strict prospectivity, general retroactivity, and two forms of limited retroactivity. We there pointed out that in determining
which approach should be adopted in a given case, the competing considerations "are weighed by examining (1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice." Id. at 471.
As to the first of the factors to be considered we find persuasive the observation made by the United States Supreme Court in United States v. Peltier, 422 U.S. 531, 535, 95 S. Ct. 2313, 2316, 45 L. Ed. 2d 374, 380 (1975), that "in every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule * * * [it] has concluded that any such new constitutional principle would be accorded only prospective application." This result has obtained, the Court explained, because the deterrent purposes of the exclusionary rule are not served by retroactive application. Id. at 538-39, 95 S. Ct. at 2317-2318, 45 L. Ed. 2d at 382. More importantly, the reliability and relevancy of the evidence sought to be suppressed in this case is not questioned. The Franks rule, being a new variant of the exclusionary rule device, is not one which concerns either the reliability of the verdict or the integrity of the fact-finding process at a criminal trial. Id.
The dissenting opinion would have us apply Franks retroactively in order to "uphold 'the imperative of judicial integrity.'" Ante at 578. While it is true that a secondary purpose of the exclusionary rule is to vindicate the integrity of the judicial process, it is also true that the United States Supreme Court has eschewed any substantial reliance on this rationale in determining the scope of application of that device.
While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence.
[ Stone v. Powell, 428 U.S. 465, 485, 96 S. Ct. 3037, 3048, 49 L. Ed. 2d 1067, 1083 (1976).]
Franks v. Delaware is illustrative of the above-stated principle. The Supreme Court did not rely on the "judicial integrity" rationale in holding that veracity challenges must be permitted, Franks v. Delaware, supra, 438 U.S. at 166-167, 98 S. Ct. at 2682-2683, 57 L. Ed. 2d at 679-80; rather, the thrust of the Court's reasoning was that the prospect of a subsequent challenge to the veracity of statements made in a search warrant is necessary to "discourage lawless or reckless misconduct." Id. 79 438 U.S. at 167, 98 S. Ct. at 2683, 57 L. Ed. 2d at 680. It would be inconsistent with the Supreme Court's reasoning in Franks to justify a retroactive application of the Franks rule on a rationale that was not relied on in fashioning that rule in the first instance.
With respect to the second of the factors enumerated in Nash, there can be no doubt of the reliance in this jurisdiction on the now-overruled Petillo decision. The trial court here repeatedly referred to Petillo in refusing to allow the defendant to "try the search warrant" at his trial. Unquestionably this ruling was correct under the law applicable at the time the suppression hearing was held; hence, even if it be assumed that the warrant contains perjurious statements, the conviction of the defendant was obtained in good faith reliance on "then-prevailing constitutional norms." Peltier, supra, 422 U.S. at 536, 95 S. Ct. at 2316, 45 L. Ed. 2d at 380; Linkletter v. Walker, 381 U.S. 618, 636-40, 85 S. Ct. 1731, 1741-1743, 14 L. Ed. 2d 601, 612-14 (1965). And as indicated above, the Appellate Division as well relied on Petillo in upholding the conviction in this case.
It matters not, for purposes of determining the question of retroactivity, that the police officers may have acted in bad faith by "relying" on the Petillo rule in perjuring themselves in order to obtain a warrant. Refusals to apply exclusionary rule decision retroactively have not depended on whether or not the police may have deliberately broken the law in seizing evidence. In Linkletter v. Walker, supra, the Supreme Court ...