On appeal from Superior Court of New Jersey, Law Division, Passaic County.
McElroy, Dreier and Shebell. The opinion of the court was delivered by Dreier, J.A.D.
The State has appealed, on leave granted by us, from an interlocutory decision by the Law Division suppressing the results of a search pursuant to a search warrant for the reason that the materials obtained by the police did not fall within the description of the property to be seized set forth in the warrant. The State contends that a reading of the affidavits presented in support of the warrant application amply supports the proposition that the description of the property to be seized in the warrant was mere harmless error, unfortunately overlooked by the issuing municipal court judge, and that the materials found at the described premises were seized in good faith reliance upon the warrant.
Defendant argues that, although the trial judge raised the issue of the applicability of United States v. Leon, 468 U.S. , 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the State in violation of R. 3:5-7 failed to submit a brief in response to defendant's brief in support of the suppression motion and, therefore, should not be heard with respect to the Leon issue.
It is true that the State has the obligation on a suppression motion to file a brief in support of its position. State v. Walker, 117 N.J. Super. 397, 398 (App.Div.1971). In this case, however, the judge had before him defendant's motion and brief. Whatever sanction, if any, may be appropriate to enforce R. 3:5-7, the remedy for the State's failure to file a brief is certainly not that the evidence objected to by defendant automatically will be suppressed. Evid.R. 9(1) requires that a court take judicial notice "without request by a party, of the decisional, constitutional, and public statutory law and rules of court of this State and the decisional, constitutional, and public statutory law and rules of court of the United States. . . ." The trial judge properly discharged his duty in considering and analyzing all relevant law. Irrespective of the Rules of Evidence, such a duty devolved on the trial judge. Carlo v. Okonite-Callender Cable Co., 3 N.J. 253, 260 (1949). We at
the appellate level are under a similar duty. The presentations before us and our own research aid us in our consideration of each matter under the applicable law up to the date of our decision. Defense counsel's assertion that the State may not cite on appeal case law not presented in the trial court is, in a word, incorrect.
The facts before us are relatively simple. The investigating detectives presented to the municipal court judge ample grounds for reasonable cause to believe that a numbers operation was being conducted at defendant's barber shop. Attached to the affidavits was a printed form of search warrant requiring completion by the detectives by filling in the judge's name, a description of the defendant and the place to be searched, the statutes allegedly violated, the property to be seized and their own names. Unfortunately, although the balance of the search warrant form was correctly completed, the property to be seized was described as:
Certain paraphernalia used in the process of bookmaking on horses, geldings, mares, racing at various tracks and other sporting events. Plus all instruments used to prevent detection or aid in the escape from the offense.
The detective who completed this form noted that he had been assigned only recently to this duty and copied the language from an old warrant form, thinking that the wording was required in all gambling cases. The municipal court judge, after reviewing the detailed description of the investigation and noting that there was probable cause, obviously only scanned the warrant form briefly and then signed it.
These facts place before us the Supreme Court decisions in United States v. Leon, and its companion case Massachusetts v. Sheppard, 468 U.S. , 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984). The trial judge found that these decisions were not to be applied retroactively to govern the search in the matter before him. After receipt of the notice of motion for leave to appeal, the trial judge issued a supplementary written opinion indicating two bases for his decision: the warrant (1) lacked the required specificity, and (2) could not have been signed under these circumstances by a detached magistrate.
The first point is supported by pre- Leon law; the second point according to the trial judge is factually supported by the issuing judge's signature on a warrant which, in the paragraph noted above, had nothing to do with the activities described in the supporting affidavits. The trial judge accordingly concluded that the warrant had not been read and "that the warrant was not signed by a detached magistrate as required under our law." As to retroactive application of United States v. Leon, the trial judge noted that defense counsel presented to him a quotation from the case that the Supreme Court had been "unwilling to conclude that new Fourth Amendment principles are always to have a prospective effect. No Fourth Amendment decision marking ...