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State v. Bruzzese

Decided: August 8, 1983.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOSEPH P. BRUZZESE, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, O'Hern and Garibaldi. For affirmance -- Justice Pollock. The opinion of the Court was delivered by Garibaldi, J. Handler, J., concurring. Justice Clifford joins in this concurring opinion. Pollock, J., dissenting. Clifford and Handler, JJ., concurring in the result.

Garibaldi

This case focuses upon the constitutionality of the seizure of evidence from an individual's home incident to the execution at his home of an outstanding arrest warrant on an unrelated charge. Specifically, the issue here is whether incriminating boots seized by police from defendant's bedroom in the course of arresting him on an unrelated contempt of court charge were admissible to prove defendant's involvement in a burglary. Subsumed within this issue is the fundamental question of whether the court should consider the subjective motives and intent of a law enforcement officer in determining the reasonableness of a search and seizure under the Fourth Amendment and under Article I, paragraph 7 of the New Jersey Constitution.

On an autumn evening in 1980, a burglary occurred at Madan Plastics, Inc. (Madan), in Cranford, New Jersey. In the course of investigating the burglary, the Cranford police discovered a distinctive sole imprint on the panel of a rear door of Madan that had been kicked in during the burglary. The sole imprint bore a unique diamond design in the center, with narrow holes around the perimeter of the heel. Although it appeared that the imprint was that of a boot, it was impossible from this evidence to determine the boot's size or shape.

During the course of the Cranford Police Department's investigation, defendant's name surfaced as a suspect. The police

learned that defendant was a former employee at Madan and that on the night of the burglary defendant had told friends "he was going to get even with the people at Madan Plastics for firing him." The police also learned that defendant had walked home that night and that he lived about a quarter of a mile from Madan. They were also advised that defendant had been wearing black work boots on that occasion.

On November 13, 1980, the investigation of the Madan burglary was turned over to Detective John Hicks of the Cranford Police Department. After learning that defendant was a suspect, Hicks ran a routine check to determine whether defendant had a criminal record. The check disclosed that there was an outstanding arrest warrant issued against defendant by the Cranford Municipal Court, for contempt of court. The contempt citation evidently had arisen from defendant's failure to appear in court on an unrelated matter.*fn1

Detective Hicks decided to go to defendant's home to execute the arrest warrant. He testified candidly that he elected to do this for two reasons: "one, that we had a warrant for his arrest, and the other was I wanted to speak to him about the burglary due to the fact that he was a suspect." Since the defendant lived with his mother and aunt in the neighboring town of Roselle Park, Hicks solicited the cooperation of the Roselle Park police in arresting defendant at his home.

Thereafter at approximately 10:30 a.m. on November 14, 1980, Hicks, along with another Cranford policeman named Mayer and two officers from the Roselle Park Police Department, went to defendant's home. Hicks testified that all four officers went to defendant's home because defendant reportedly had a tendency to become violent with the police.*fn2 Two of the officers went to

the back door while Hicks, dressed in plain clothes, and Mayer rang the front doorbell.

Defendant's aunt opened the door. When the police told her they wanted to speak to her nephew, she allowed them to enter the house. She then went upstairs to get the defendant, where he apparently was sleeping. The police remained downstairs.

Shortly thereafter, defendant came downstairs without shoes and clad in a tee-shirt and pants. Hicks and Mayer immediately identified themselves as police officers and informed defendant that they were there to pick him up on the outstanding arrest warrant. They then placed defendant under arrest, and advised him that he was going to be taken to the Cranford police station. The police also informed defendant that bail had been posted at $50.00. Hicks did not advise the defendant at this point of his desire to discuss the Madan burglary.

Defendant told the officers that he wanted to put on shoes and a jacket before going outside. Without invitation, Hicks and Mayer followed defendant upstairs to his bedroom. There is some testimony that defendant had requested the police to wait downstairs, but that Hicks had replied that they had to accompany defendant.

Once in the bedroom, defendant changed his shirt and put on a pair of shoes. He then walked over to his dresser to secure money to post bail. While defendant stood at the dresser, Hicks noticed a pair of black boots standing upright under the dresser. Hicks picked up the boots and examined their soles. The soles corresponded to the impression that Hicks had seen on the rear door panel at Madan. Hicks seized the boots and told defendant that he was taking them to police headquarters for further examination. Hicks advised defendant that he would explain his interest in the boots when they got to headquarters.

Defendant was subsequently indicted in Union County for burglary, theft, and criminal mischief. Counsel for defendant then moved to suppress the boots as evidence. The trial court granted defendant's motion, finding the seizure of the boots the

product of a pretextual search violative of defendant's constitutional rights. The Appellate Division, in an opinion by Judge Gaulkin, affirmed the trial court's decision to suppress the evidence. 187 N.J. Super. 435 (1982). Judge Joelson, who joined in the result, filed a separate concurring opinion and Judge Milmed dissented. We granted leave to the Union County Prosecutor to appeal from the interlocutory suppression order under R. 2:2-2(b). 91 N.J. 577 (1982).

We reverse the Appellate Division and hold that Hicks's presence in defendant's bedroom and his seizure of defendant's boots was reasonable under the Fourth Amendment of the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution. Accordingly, the boots are admissible into evidence.

I.

Both the Fourth Amendment of the Constitution of the United States and Article I, paragraph 7 of the New Jersey Constitution protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." U.S. Const. amend. IV; N.J. Const. art. 1, para. 7 (emphasis added). The language of the Fourth Amendment of the federal constitution and of Article I, paragraph 7 of our state constitution is virtually identical. We recognize that this Court has the power to afford citizens of this State greater protection against unreasonable searches and seizures than may be required by the Supreme Court's prevailing interpretation of the Fourth Amendment. State v. Hunt, 91 N.J. 338, 344-46 (1982); State v. Alston, 88 N.J. 211, 225 (1981); State v. Johnson, 68 N.J. 349, 353 (1975). We find, however, that the search was lawful under Article I, paragraph 7 of the New Jersey Constitution as well as under the Fourth Amendment. Accordingly, our holding with respect to the validity of instant search and seizure under the Fourth Amendment of the

United States Constitution is equally applicable under Article I, paragraph 7 of the New Jersey Constitution.*fn3

The Supreme Court has consistently asserted that "the rights of privacy and personal security protected by the Fourth Amendment . . . are to be regarded as of the very essence of constitutional liberty . . . ." Harris v. United States, 331 U.S. 145, 150, 67 S. Ct. 1098, 1101, 91 L. Ed. 1399, 1405 (1947) (quoting Gouled v. United States, 255 U.S. 298, 304, 41 S. Ct. 261, 263, 65 L. Ed. 647, 650 (1921)). Historically, the Court has applied a more stringent standard of the Fourth Amendment to searches of a residential dwelling. E.g., Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). Indeed, one of this country's most protected rights throughout history has been the sanctity and privacy of a person's home. See generally N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937).

Nevertheless, the Fourth Amendment does not proscribe all searches and seizures, but only those that are judicially deemed unreasonable. State v. Campbell, 53 N.J. 230, 233 (1969). Indeed, the touchstone of the Fourth Amendment is reasonableness. See Delaware v. Prouse, 440 U.S. 648, 653-55, 99 S. Ct. 1391, 1395-97, 59 L. Ed. 2d 660, 667-68 (1979); Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 2527, 37 L. Ed. 2d 706, 713 (1973); Camara v. Municipal Court, 387 U.S. 523, 539, 87 S. Ct. 1727, 1736, 18 L. Ed. 2d 930, 941 (1967); see also State v. Slockbower, 79 N.J. 1, 21-24 (1979) (Schreiber, J. dissenting);

State v. Davis, 50 N.J. 16, 22 (1967), cert. den., 389 U.S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968). This constitutional test of reasonableness is satisfied where the police obtain, upon a showing of probable cause, a search warrant from a neutral magistrate. See United States v. United States District Court, 407 U.S. 297, 314-21, 92 S. Ct. 2125, 2135-39, 32 L. Ed. 2d 752, 765-69 (1972); see also State v. Valencia, 93 N.J. 126 (1983) (holding telephonic search warrant as reasonable in certain circumstances). The cautionary procedure of procuring a warrant ensures that there is a reasonable basis for the search and that the police intrusion will be reasonably confined in scope. Katz v. United States, 389 U.S. 347, 358-59, 88 S. Ct. 507, 515, 19 L. Ed. 2d 576, 585-86 (1967).

"In contrast, a warrantless search is presumed to be invalid. Hence, the State must prove the overall reasonableness and validity of [such a] search." State v. Valencia, supra, 93 N.J. at 133. Over the years, the United States Supreme Court has developed a number of circumscribed exceptions to the warrant requirement. E.g., New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (automobile search incident to arrest of occupant); Chimel v. California, supra (limited area search incident to custodial arrest); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (investigatory "stop and frisk"); Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 1647, 18 L. Ed. 2d 782 (1967) (search of premises in "hot pursuit" of fugitive); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 2d 543 (1925) (vehicle search in circumstances where impracticable to secure a warrant). These recognized exceptions are justified on the grounds of reasonableness. See, e.g., Chimel, 395 U.S. at 762-65, 89 S. Ct. at 2039-41, 23 L. Ed. 2d at 694-95; Terry, 392 U.S. at 30-31, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911. A warrantless search that does not fall within one of the enumerated exceptions is presumptively unconstitutional. State v. Alston, 88 N.J. 211, 230 (1981); State v. Young, 87 N.J. 132, 141 (1981); State v. Patino, 83 N.J. 1, 7 (1980).

In the case at bar, it is generally agreed that Detective Hick's actions were, on the whole, reasonable and in accordance with the recognized exceptions and objective restrictions set forth by the Supreme Court governing warrantless searches. Defendant alleges, however, that although the search and seizure was objectively reasonable, it was unconstitutional because the execution of the arrest warrant served as a mere pretext for the search of the defendant's home. This contention was accepted by both of the courts below as the basis for requiring the exclusion of the boots. As the Appellate Division stated, "[W]e determine that the observation and seizure of the boots, although ostensibly valid, were in fact pretextual and arbitrary, and accordingly, were in violation of the Fourth Amendment and the parallel provision of our New Jersey Constitution." 187 N.J. Super. at 446.

Stated in its barest form, the implication of the decisions of the trial judge and the Appellate Division in this case is that courts must consider police officers' subjective motives in determining whether a search is valid under the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution. The State contends that the subjective intent of the police officer is of no significance in evaluating his alleged violation of the Fourth Amendment so long as his acts are reasonable. In particular, the State argues that the courts below improperly considered the subjective motives of Officer Hicks in executing the arrest warrant at defendant's home. We agree.

We hold that the proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motives or intent. We emphasize that the Fourth Amendment proscribes unreasonable actions, not improper thoughts. In determining whether a police officer's actions are constitutional, we do not rely on the officer's own subjective appraisal, but

upon an objective evaluation by a neutral judicial authority. As Chief Justice Warren stated in Terry:

The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search "warrant a man of reasonable caution in the belief" that the action taken was appropriate? [392 U.S. at 21-22, 88 S. Ct. at 1879, 20 L. Ed. at 906 (footnotes omitted)]

This position was reaffirmed by the Supreme Court in Scott v. United States, 436 U.S. 128, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978), in which the Court reviewed the constitutionality of wholesale wiretapping of telephone conversations by government agents. The Scott majority rejected the notion that the validity of the wiretaps hinged upon the agents' lack of subjective desire to minimize the number of intercepted conversations. Rather, the Court ruled that the Fourth Amendment required "an objective assessment of an officer's actions in light of the facts and circumstances known to him." Scott, 436 U.S. at 137, 98 S. Ct. at 1723, 56 L. Ed. 2d at 177. This assessment is accomplished without regard to the underlying intent or motivation of the officers involved. "[T]he fact that the [searching] officer does not have the state of mind hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id. at 138, 98 S. Ct. at 1723, 56 L. Ed. 2d at 178. (emphasis added). Accord Delaware v. Prouse, supra, 440 U.S. at 654, 99 S. Ct. at 1396, 59 L. Ed. 2d at 668 ("the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against 'an objective standard'").

The Scott "objective approach" was again endorsed by the Supreme Court very recently in United States v. Villamonte-Marquez, U.S. , 103 S. Ct. 2573, 77 L. Ed. 2d 22 (1983). There, the Court upheld the boarding of a vessel in American waters by customs officers "under the overarching principle of

'reasonableness' embodied in the Fourth Amendment." Id. at , 103 S. Ct. at 2579. Citing Scott, the Court expressly rejected defendant's arguments that the officers were precluded, because of alleged suspicions of hidden contraband, from relying on a statute authorizing their boarding to inspect the vessel's documents. Id. at n. 3, 103 S. Ct. at 2577 n. 3. Villamonte-Marquez therefore clearly establishes that the pretext approach advocated by the dissent here is not the prevailing approach of our nation's highest court.

We stress that this objective standard is to be applied only to the facts known to the law enforcement officer at the time of the search. Facts learned by the authorities after the search and seizure occurs will not validate unreasonable intrusions. It is beyond dispute, for example, that "[a] search prosecuted in violation of the Constitution is not made lawful by what it brings to light." Byars v. United States, 273 U.S. 28, 29, 47 S. Ct. 248, 249, 71 L. Ed. 520, 522 (1927); accord State v. Doyle, 42 N.J. 334, 342 (1964). Nor will information discovered in the station house files after the search excuse the ignorance of the searching officers. Here, for example, if the police had arrested defendant at his residence without knowledge of his outstanding warrant, their subsequent discovery of that warrant would not make the incidental search valid post facto.

Were the Court to adopt the defendant's subjective rule, practically every search-and-seizure case would require the court to engage in a costly and time-consuming expedition into the state of mind of the searching officer. Since motives are seldom apparent or vocalized, there is little reliable evidence of them. Even where motives are evident, the analysis may still pose problems. Complex creatures that they are, humans usually have several motives. A judge cannot and should not be required to weigh the motives to determine which one guided the officer's behavior. For example, in the case at bar Officer Hicks concededly had two proper motives -- to arrest the defendant and

to talk to him about the burglary.*fn4 The possibility of uncovering evidence on defendant's premises related to the burglary was only in the "back of his mind." Years of litigation and cross-examination probably would still not resolve which of these motives was truly dominant. In sum, "sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources." Massachusetts v. Painten, 389 U.S. 560, 565, 88 S. Ct. 660, 662, 19 L. Ed. 2d 770, 773 (1968) (White, J. dissenting).

A further weakness of the subjective approach is that it is neither reliable nor predictable. Appellate courts with views of human psychology different from those of the trial court would no doubt be tempted to second-guess the latter's assessment of the searching policeman's "true" intentions. In addition, the precedential significance of every search challenged on "bad faith" grounds would be ambiguous. The litigated cases would serve less as guidelines for proper police conduct than as proscriptions on certain police thoughts. Because each individual police officer's thoughts are unique and arise in countless forms and combinations, every bad faith challenge would present an unresolved case of first impression. In short, the law would become as unfathomable as the policeman's motives themselves.

Thus, we conclude that there is no useful or practical reason to adopt the subjective test. We believe that it places an unfair burden on law enforcement authorities. Delving into the so-called ulterior motives of policemen penalizes officers who outwardly behave in a constitutionally appropriate way. Under this rule, a defendant subjected to an objectively reasonable search may receive a windfall because the searching police officer harbored bad thoughts, despite the fact that those thoughts did not alter the external effects of the officer's actions. We believe this is a poor way to distinguish which

defendants subject to identical intrusions on their privacy shall receive the constitutional benefit of the exclusionary rule.*fn5

In upholding the trial court's suppression order, the Appellate Division relied in part on this Court's companion decisions in State v. Slockbower, 79 N.J. 1 (1979), and State v. Ercolano, 79 N.J. 25 (1979). In both Slockbower and Ercolano the police impounded and searched the automobile of an individual contemporaneously placed under arrest. In each case, a majority of this Court ruled that the police seizure of evidence from the vehicle was unconstitutional. We would be less than frank to deny that Slockbower and Ercolano generated substantial disagreement among the members of this Court respecting the proper mode of analysis -- as evidenced by the seven separate opinions collectively written in the two cases. Nonetheless, we believe that a common ground is inferable from Slockbower and Ercolano that is consistent with the constitutional approach we utilize in the instant case.

On their facts, Slockbower and Ercolano were variations on the same theme. In Slockbower, a man driving his wife's car was pulled over and arrested on an outstanding warrant for a traffic violation. The police searched the vehicle on the scene and discovered a firearm and ammunition. They then towed the vehicle to the police station where they conducted a second search, labelling it a routine "inventory." 79 N.J. at 5. In Ercolano, the police, after arresting defendant on gambling charges, impounded his automobile from where he had safely parked it on a residential street. 79 N.J. at 31. A full search of

the car's interior at police headquarters turned up incriminatory betting slips. Id. at 32. The prosecution contended in both cases that the impoundments and interior searches were appropriate safekeeping measures authorized by the United States Supreme Court's decision in South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). Not a single member of this Court found those contentions persuasive. Indeed, a majority of this Court regarded the impoundment searches in both cases as objectively unnecessary, since each defendant could have readily made arrangements for the caretaking of his automobile during his period of custody. See Slockbower, 79 N.J. at 12; Ercolano, id. at 46.

In neither Slockbower nor Ercolano was the impoundment and exploration of the defendant's automobile by the police objectively reasonable. Significantly, the opinion of the Court in both cases expressly recognized that the litmus test for determining the constitutionality of searches and seizures is objective reasonableness:

In [enumerated] circumstances the decision to "impound" the car was unreasonable because unnecessary. [ Slockbower, 79 N.J. at 11 (majority opinion of Conford, P.J.A.D. t/a) (emphasis added)]

[T]he validity vel non of the search must depend on whether there was a valid impoundment in relation to which the search constituted a reasonable inventorying of the contents of the vehicle. [ Ercolano, 79 N.J. at 33 (plurality opinion of Conford, P.J.A.D. t/a) (emphasis added)

Hence, the fundamental teaching of Slockbower and Ercolano is that unreasonable automobile impoundments are unconstitutional. See State v. Mangold, 82 N.J. 575, 582 (1980).

To be sure, some of our lower courts have mistakenly relied upon the phraseology of "substantial necessity" articulated specifically by Judge Conford and Justice Pashman in Slockbower and Ercolano as embodying a more stringent test of constitutionality applicable to all Fourth Amendment searches. See, e.g., State v. Seiss, 168 N.J. Super. 269, 274 (App.Div.1979). We

do not, however, distinguish the "substantial necessity" test from the "reasonableness" test. If the police have no realistic need to impound a defendant's car, a fortiori, that impoundment is unreasonable.*fn6 Further, we did not and do not intend the substantial necessity standard formulated for auto impoundment cases to be exported to other types of searches. Rather, we regard the "substantial necessity" test as merely a shorthand method for determining whether an automobile impoundment is objectively reasonable. Other kinds of searches may involve different rules-of-thumb.

We acknowledge that some of the opinions in Slockbower and Ercolano devoted considerable attention to improper police motives as an additional reason for invalidating their conduct in both cases. In Slockbower, the majority described the police impoundment of Slockbower's vehicle after they had already searched it as a "pretextual" attempt to disguise their prior illegal intrusion. 79 N.J. at 13. In Ercolano, the plurality found that the officers' subjective intent to impound the vehicle only for community safekeeping reasons barred the imposition of a court-devised justification on alternative theories of probable cause or exigent circumstances. 79 N.J. at 39-40. We believe that the same results in Slockbower and Ercolano would obtain under the standard that we embrace today, i.e. an objective assessment of the facts then known to the searching police officers.

We also believe that the application of the objective standard will protect the privacy of our citizens and prevent the police from exercising merely pretextual searches. For example, if the police endeavored to "cover up" an objectively unreasonable

search after the fact with seemingly routine procedures, as in Slockbower, we will continue to deem it unconstitutional, not on the grounds that it was performed in "bad faith" but simply because it was an objectively unreasonable search. Similarly, if the police are unaware of facts sufficient to validate a search, the search would be held unconstitutional, not because of the policeman's subjective ...


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