On certification to the Superior Court, Appellate Division, whose opinion is reported at 168 N.J. Super.. 589 (1979).
For reversal and remandment -- Justices Clifford, Schreiber, Handler and Pollock. For affirmance -- Chief Justice Wilentz and Justices Sullivan and Pashman. The opinion of the Court was delivered by Clifford, J. Pashman, J., dissenting. Chief Justice Wilentz and Justice Sullivan join in this dissenting opinion.
Defendant was convicted of possession of marijuana in violation of N.J.S.A. 24:21-20(a)(4) and possession with intent to distribute in violation of N.J.S.A. 24:21-19(a)(1). On appeal the Appellate Division viewed the issue as whether "the trial judge erred in denying defendant's motion to suppress evidence seized in a car driven by defendant after it was stopped for a routine 'license and registration check.'" State v. Carpentieri, 168 N.J. Super. 589, 591 (1979).
In reversing the conviction the court below gave retroactive application to Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), in which the United States Supreme Court held "random traffic stops" invalid. Prouse was decided after Carpentieri's arrest, conviction, and notice of appeal, but before the Appellate Division resolution of his appeal. There is, of course, no question that Prouse effected a radical departure from the state of our law as it existed up until the date of that decision, for until then such random stops were expressly authorized under case law in New Jersey, see State v. Gray, 59 N.J. 563, 567 (1971); State v. Braxton, 57 N.J. 286, 287 (1970); State v. Kabayama, 98 N.J. Super. 85, 87-88 (App.Div.1967), aff'd o.b., 52 N.J. 507 (1968), and at least inferentially under our statutory law, see N.J.S.A. 39:3-29. In bringing the newly-declared Prouse doctrine to bear on the case at hand the Appellate Division held that "since this appeal was pending at the time of the Prouse decision, its principle of exclusion of seized material effected on a 'random stop' and search is applied here." 168 N.J. Super. at 593. Hence that court did not address defendant's remaining contention for reversal, that is, the absence of probable cause to search the vehicle's trunk.
We reverse. Delaware v. Prouse, supra, applies only to those cases wherein the "random traffic stop" occurs after the date of the Prouse decision, March 27, 1979. In State v. Howery, 80 N.J. 563 (1979), this Court held that retroactivity should
not be accorded the decision in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).*fn1 Franks, like Delaware v. Prouse, an exclusionary rule case, stands for the proposition that under certain circumstances a defendant may challenge the veracity of an affidavit supporting a search warrant. Howery limits the Franks rule "to search warrants issued after the Franks decision * * *." 80 N.J. at 571. The same principle of retroactivity applies to the case before us.
Neither the defendant nor the dissenting opinion challenges the controlling effect of Howery. What is put in issue is the soundness of that decision. Being satisfied that Howery was rightly decided, we affirm the principles stated therein. The reasoning supporting those principles bears repetition in truncated form.
In Howery we recognized that the retroactive application of a new rule of law is determined 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.'" 80 N.J. at 569 (quoting from State v. Nash, 64 N.J. 464, 471 (1974)). In the instant case the principles of deterrence underlying Prouse would hardly be fostered by retroactive application to law enforcement actions undertaken in good-faith reliance upon then long-standing legal authority. Approval of such an exercise would doubtless require judicial review relative to probable cause of the operative facts surrounding many automobile stops effected in this state prior to Prouse. The consequent encumbering of an already overburdened judiciary
would operate only to the detriment of the administration of justice.
Again the charge is made here, post at 566-567 (Pashman, J., dissenting), as it was in Howery, 80 N.J. at 578-79 (Pashman, J., dissenting) that the Court is blithely ignoring "the imperative of judicial integrity." We prefer to view "judicial integrity" as being perceived in its proper perspective rather than ignored. Howery 's anchor to United States v. Peltier, 422 U.S. 531, 537-38, 95 S. Ct. 2313, 2317-2318, 45 L. Ed. 2d 374, 381 (1975), needs little more weight than that furnished by the Supreme Court's declaration that "'[i]t would seem to follow * * * from the Linkletter [ v. Walker, 381 U.S. 618, (85 S. Ct. 1731), 14 L. Ed. 2d 601 (1965)] and Fuller [ v. Alaska, 393 U.S. 80, (89 S. Ct. 61), 21 L. Ed. 2d 212 (1968)] holdings that the "imperative of judicial integrity" is also not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law * * *.'" 80 N.J. at 571 (quoting from United States v. Peltier, 422 U.S. at 537-38, 95 S. Ct. at 2317-2318, 45 L. Ed. 2d at 381 (emphasis supplied and in original)). See also Stone v. Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 3048, 49 L. Ed. 2d 1067, 1083 (1976). We add only that integrity of the judicial process involves the entire judicial process, including ultimately how successful and fair has been its search for and ascertainment of the truth.
The dissent makes the sweeping contention that "[t]he retroactivity of a judicial decision is at issue only where it constitutes a 'sharp break' with the line of earlier authority. If it does not, then retroactive application follows." Post at 557 (Pashman, J., dissenting). While the "sharp break" test may have had considerable support prior to 1975, when United States v. Peltier, supra, was decided, it was quite plainly abandoned altogether by the Peltier Court as the standard for determining the retroactive applicability of the exclusionary rule in cases involving searches invalid under the fourth amendment. Note, " A La
Recherche Du Temps Perdu: Retroactivity and the Exclusionary Rule," 54 N.Y.U.L.Rev. 84, 85-87, 97-98 (1979).
Therefore, it is of no moment whether the Prouse decision in fact represents a "sharp break" with existing law or is nothing more than a logical development following almost inevitably from earlier exclusionary rule decisions. What is important is that the Supreme Court's position today on retroactivity in the context of the exclusionary rule is unmistakable. Justice Rehnquist outlined the development of that position in Peltier, supra, as follows:*fn2
Since 1965 this Court has repeatedly struggled with the question of whether rulings in criminal cases should be given retroactive effect. In those cases "[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials," Williams v. United States, 401 U.S. 646, 653, 91 S. Ct. 1148, , 28 L. Ed. 2d 388 (1971) the doctrine has quite often been applied retroactively. It is indisputable, however, that in every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process, the Court has concluded that any such new constitutional principle would be accorded only prospective application. [422 U.S. at 535-36, 95 S. Ct. at 2316, 45 L. Ed. 2d at 379-80.]
In the face of this definitive statement defendant argues that the Supreme Court's one sentence order in Kretchmar v. Nebraska, 440 U.S. 978, 99 S. Ct. 1783, 60 L. Ed. 2d 237 (1979), represents a clear contrary declaration on retroactivity in this area. This contention requires that we examine the case in detail.
Kretchmar was observed travelling on an interstate highway by a Nebraska State Police officer who perceived an incongruity between Kretchmar's outward appearance and the late model automobile he was driving. The officer further suspected, on the basis of Kretchmar's appearance, that he might be an illegal alien. Accordingly, the officer directed the Kretchmar automobile to the side of the highway for investigation. Events transpiring thereafter eventually led to the discovery of approximately 466 pounds of marijuana in the vehicle.
The drug offense convictions emanating from the marijuana discovery were subsequently upheld by the Nebraska Supreme Court by a four to three vote. State v. Kretchmar, 201 Neb. 308, 267 N.W. 2d 740 (Sup.Ct.1978). The majority found authorization for the initial stop of the automobile in a Nebraska statute which empowered officers in uniform to require any motorist to stop and exhibit his driving and vehicle credentials. Iterating an observation from one of its previous decisions the Court declared that "'[a] routine license check and its concomitant temporary delay of a driver does not constitute an arrest in a legal sense where there is nothing arbitrary or harassing present.'" Id. at 310, 267 N.W. 2d at 742 (quoting from State v. Holmberg, 194 Neb. 337, 231 N.W. 2d 672 (Sup.Ct.1975)). The Court further concluded:
The stopping of Kretchmar for the purpose of checking his driver's license and the certificate of registration for the car he was driving, if it may be construed to be a seizure, was not in any sense an unreasonable one. It did not violate any right given Kretchmar by the Fourth Amendment to the Federal Constitution.
[ State v. Kretchmar, supra, 201 Neb. at 311, 267 N.W. 2d at 743 (citations omitted).]
Finding no legal infirmity in the police action which led to the uncovering of the marijuana, the Court affirmed Kretchmar's convictions. 201 Neb. at 311-317, 267 N.W. 2d at 743-45.
Kretchmar's subsequent petition for certiorari to the United States Supreme Court echoed the views of the dissenting members of the Nebraska Supreme Court. Focusing primarily upon the legality of the stop of the vehicle the Kretchmar petition questioned, among other things, whether the "* * * Fourth Amendment prohibit[s] isolated stops of moving vehicles absent probable cause or articulable grounds to believe that crime was committed or traffic laws violated." See Kretchmar v. Nebraska, 440 U.S. 978, 99 S. Ct. 1783, 60 L. Ed. 2d 237 in Summaries of Docket Cases, 24 Crim.Law Rptr. 4071-72 (Nov. 1, 1978).
Thereafter, as noted above, on March 27, 1979, the Prouse decision was handed down, holding random stops for credentials checks constitutionally invalid. Approximately one week later the Supreme Court issued the following order in Kretchmar:
On petition for writ of certiorari to the Supreme Court of Nebraska. Petition for writ of certiorari granted, judgment vacated and case remanded to the Supreme Court of Nebraska for further consideration in light of Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). [ Kretchmar v. Nebraska, 440 U.S. 978, 99 S. Ct. 1783, 60 L. Ed. 2d 237 (1979).]
On remand, the Nebraska Supreme Court evidently concluded that its reconsideration of the case was limited to direct application of the new principles announced in Prouse and, on that basis, summarily reversed Kretchmar's convictions and ordered the dismissal of all the charges preferred against him. State v. Kretchmar, 203 Neb. 663, 280 N.W. 2d 46 (Sup.Ct.1979) (Kretchmar II).
At the outset we observe that the summary holding of Kretchmar II is entirely unenlightening on the question of whether the retroactive application of Prouse to events transpiring long before the date of that determination was ever raised. Certainly it was not discussed or even adverted to in the decision. It would appear that there was not even any argument on the remand, inasmuch as the opinion contains no indication of appearance of counsel.
In any event, assuming the Nebraska Supreme Court felt that the mere fact the matter was remanded to it for reconsideration in light of Prouse mandated retroactive application of the Prouse rule, we must disagree with the course taken by that court. As we understand it, the Supreme Court was simply calling upon the Nebraska Supreme Court itself to resolve the issue of Prouse 's retroactivity, that question obviously not having been encompassed by Kretchmar's petition. The remand was thus entirely appropriate. See United States v. Calandrella, 605 F.2d 236, ...