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In re Application of Russell Mahler

Decided: January 29, 1981.


On appeal from the Superior Court, Law Division, Bergen County.

Allcorn, Kole and Pressler. The opinion of the court was delivered by Pressler, J.A.D.


These consolidated appeals arise out of efforts by the State of Pennsylvania to prosecute a New Jersey corporation, Hudson Oil Refining Corporation (Hudson Oil), and a group of its officers and employees, also residents of New Jersey, who are alleged to have engaged in an illegal scheme involving the massive dumping of hazardous industrial wastes into the Susquehanna River. The cases raise important questions of interstate relations where one state is called upon to issue and execute search and extradition warrants in aid of a criminal prosecution by a sister state.

Explication of the issues here involved requires some brief procedural and chronological exposition. The assistance of the State of New Jersey was first sought by Pennsylvania during its investigation of the serious contamination affecting a 35-mile stretch of the Susquehanna River. That investigation led it to believe that Hudson Oil, a New Jersey hazardous industrial waste carrier, had caused or contributed to the contamination by having transported the wastes by tank carrier to the property of a service station in Pittston, Pennsylvania. The service station is located on property on which there is an abandoned mine shaft, and it is Pennsylvania's factual thesis that the wastes were then poured by Hudson Oil Employees from the tank carriers into the mine shaft by way of a bore hole and from thence found their way into the river.*fn1 The effect of this

dumping, Pennsylvania contends, was to contaminate the potable water supply of the City of Denville, to create a risk of lethal gas explosions within the mine shaft, to require the closing of the Susquehanna River to recreational activity and to threaten the aquatic life of the river.

The facts relied on by Pennsylvania to establish probable cause as to Hudson Oil's participation in this illegal dumping scheme, including the results of official surveillance conducted at the service station site after receipt of an anonymous tip implicating Hudson Oil, were set forth in the affidavit of one Fred Karl, Regional Solid Waste Manager for the Pennsylvania Department of Environmental Resources. Based on Karl's affidavit, Pennsylvania officials requested the New Jersey Attorney General to apply for a search warrant authorizing the search of Hudson Oil's business premises in Edgewater, Bergen County, New Jersey. That request was complied with and, on October 2, 1979, on application of a New Jersey Deputy Attorney General supported by the Karl affidavit, a search warrant was issued by the Law Division of the Superior Court of New Jersey sitting in Mercer County. The warrant authorized the search of the Edgewater premises for and the seizure therefrom of generally described business records and documents as well as samples of substances stored in oil storage tanks on the premises. The warrant was issued, moreover, upon the specific authorization of R. 3:5-2, which expressly permits issuance of a search warrant to search for and seize property constituting evidence of or tending to show a violation "of the penal laws of this state or any other state."

The warrant was executed on the following day by two officers of the New Jersey Division of Criminal Justice who were accompanied by various Pennsylvania officials, including Karl, who had specific knowledge about the case. The documents

seized were inventoried and physical possession thereof ultimately transferred by the New Jersey officers to the custody of Pennsylvania officials. It appears from the record that the search was conducted in a relatively businesslike, professional and amicable manner in the presence of counsel for Hudson Oil and its president, Russell Mahler. Various objections made during the search to seizure of specific items on the ground that they were not the property of Hudson Oil or Mahler apparently were attempted to be acceded to by the executing New Jersey officers. More specifically, Mahler apparently claimed that the oil tanks themselves and one ledger book were not the property of Hudson Oil but rather of Edgewater Corporation, of which he was also president. The executing officers also agreed not to search for or seize correspondence to and from Hudson Oil's and Mahler's attorneys.

Some weeks following the search, a Pennsylvania multi-county investigating grand jury returned a presentment against Hudson Oil and Mahler as well as those of its employees who are also appellants here, namely, Kenneth Mansfield, its truck dispatcher, and four drivers, Robert Vancio, Frank Reilly, Donald Wilson and James H. Carruthers. The presentment was not, however, made public until February 5, 1980 because of various applications made by these appellants in the courts of Pennsylvania challenging the grand jury proceedings.

In the meantime, Hudson Oil, by petition filed with the Superior Court, Bergen County, sought an order pursuant to R. 3:5-7(a) suppressing the evidence seized in the October search and returning its property to it. It was Hudson Oil's claim that the search was illegal because of alleged vitiating defects in the warrant and supporting affidavit.*fn2 That petition was subsequently

joined in by motion by Mahler and Edgewater Corporation, both claiming that property of theirs had been seized. Edgewater, it should be noted, was not named in the Pennsylvania presentment, and it has been represented throughout that not only is there no proceeding against it in Pennsylvania but also that none is contemplated. It is further stipulated that no proceedings are pending or contemplated against any other of these appellants in New Jersey.

The hearings on the suppression applications, which were opposed by the State of Pennsylvania and the State of New Jersey, were conducted following the publication of the Pennsylvania presentment. The petition of Hudson Oil and the motions of Mahler and Edgewater Corporation were denied by the trial judge without his having considered the merits thereof. It was, rather, the trial judge's essential view that he was without jurisdiction to suppress evidence intended for use in a proceeding in another State. Mahler, Hudson Oil and Edgewater Corporation appeal from the order denying the suppression relief. That order, since it represented a final disposition of the entire matter pending before the court, clearly constituted an appealable final judgment. R. 2:2-3(a)(1).

In the interim, Pennsylvania had initiated extradition proceedings against all appellants except Edgewater. Those proceedings culminated in the issuance of arrest warrants and amended arrest warrants by the Governor of the State of New Jersey against the six individual appellants, who challenged the warrants by way of individual habeas corpus petitions on the variety of constitutional, procedural and technical grounds discussed hereafter. Following a consolidated hearing of the habeas corpus petitions, the trial judge concluded that there was no vitiating defect in the extradition proceedings, declined issuance of the habeas corpus writs and directed appellants' extradition

to Pennsylvania. All six individual defendants appeal from these orders, and these appeals were consolidated by us with the pending appeals from the order denying suppression relief.

We address first the appeals by Hudson Oil, Mahler and Edgewater from the order denying suppression relief. For the reasons hereafter set forth, we conclude that the trial judge properly declined to deal with the appellants' applications on their merits.

As we have noted, these appellants sought an order of the New Jersey Superior Court pursuant to R. 3:5-7(a) prohibiting the evidential use in the pending Pennsylvania criminal actions of books and records seized in New Jersey pursuant to a search warrant issued in New Jersey and turned over to the custody of Pennsylvania law enforcement authorities. In our view, appellants' reliance on that rule in seeking their suppression relief from a New Jersey court rests upon a serious misconception of its remedial scope. Construction of the rule in terms of its historical and constitutional context mandates the conclusion that it was not intended and could not validly have been intended to extend its suppression remedy to a criminal proceeding pending in a court of another state even where the evidence in question is obtained by reason of a warrant issued by judicial authority of this state.

R. 3:5-7(a) provides in pertinent part that

On notice to the prosecutor of the county in which the matter is pending or threatened, [and] to the applicant for the warrant, if the search was with a warrant . . . a person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the evidence obtained may be used against him in a penal proceeding may apply only to the Superior Court in the county in ...

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