Decided: May 28, 1987.
STATE OF NEW JERSEY, PLAINTIFF,
MICHAEL BARRETT, REGINALD BARRETT, JASON MORANT, DEFENDANTS
[220 NJSuper Page 310]
This is a case of first impression in this State. Although arising from a motion to sever by two codefendants, the underlying and dispositive issue is whether the exclusionary rule prohibits the use of suppressed evidence by a defendant against a codefendant in a joint trial.*fn1
The three defendants herein are named in a two count indictment charging them with possession of cocaine and possession of cocaine in an amount greater than one ounce, containing at least 3.5 grams of pure free base with intent to distribute in violation of N.J.S.A. 24:21-20 and N.J.S.A. 24:21-19 respectively. The facts are relatively uncomplicated. On February 12, 1986, defendant Michael Barrett was operating a motor vehicle on the New Jersey Turnpike. His brother and codefendant Reginald Barrett was seated next to him in the front seat and codefendant Jason Morant was seated in the rear. The vehicle was stopped by the New Jersey State Police for speeding. A search of the vehicle yielded almost one half of a pound of cocaine, with a street value of over $80,000, found in a brown paper bag wedged in the fold of the rear seat in the passenger compartment of the vehicle. A much smaller quantity
[220 NJSuper Page 311]
of the drug, weighing approximately 1.01 grams, was found in Jason Morant's duffle bag located in the trunk. A prior motion to suppress resulted in a finding by another court that the search of the passenger compartment was lawful; however, it suppressed the cocaine found in Morant's valise. Defendants Michael and Reginald Barrett (hereinafter "movants") now move for severance pursuant to R. 3:15-2(b), arguing that the continued joinder of defendants prevents them from introducing into evidence testimony regarding the cocaine found in the trunk, since it has been suppressed. This would impermissibly prejudice their defense.
R. 3:15-2(b) provides for the severance of codefendants where it appears to the Court "that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation." The grant or denial of a motion for severance is entrusted to the sound discretion of the trial court. R. 3:15-2(b); State v. Manney, 26 N.J. 362, 368 (1958); State v. Whipple, 156 N.J. Super. 46, 51 (App.Div.1978). In deciding whether to grant a severance the trial court must balance the possible prejudice to the defendant against the government's interest in judicial economy and must consider the ways in which it can lessen the prejudice by other means. State v. Coleman, 46 N.J. 16 (1965), cert. den. 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966); State v. Manney, supra. There is no right to a severance merely because the defendant believes he would have a better chance of acquittal were he not required to stand trial with his codefendant. State v. Morales, 138 N.J. Super. 225 (App.Div.1975). If by proper instructions and charges to the jury the separate status of codefendants can be maintained, the "danger by association" which inheres in all joint trials is effectively overcome. State v. Freeman, 64 N.J. 66, 68 (1973).
Underlying the instant motion for severance is the movants' assumption that the suppression of the 1.01 grams of cocaine found in the trunk precludes the admission of that evidence, or
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testimony pertaining thereto, not only by the State but by a codefendant as well. If this assumption is correct, movants are absolutely precluded from putting forth potentially exculpatory evidence since to do otherwise would violate Jason Morant's constitutionally protected right to exclude illegally seized evidence from his trial.*fn2 However admirable movants' concern for the protection of Jason Morant's constitutional rights, the assumption that illegally seized evidence is inadmissible by a codefendant appears to be virtually unsupported in both New Jersey and federal case law. A review of the relevant cases exploring the rationale and application of the exclusionary rule shows that none of the policy concerns underlying the rule are advanced by affording it so broad a scope.
It is axiomatic that the primary purpose of the exclusionary rule is the deterrence of police misconduct. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); State v. Novembrino, 105 N.J. 95 (1987). In addition, however, "(t)he rule . . . serves as the indispensable mechanism for vindicating the constitutional right to be free from unreasonable searches." State v. Novembrino, supra, 105 N.J. at 157.*fn3 That defendant
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is granted a windfall at the expense of the State's case-in-chief is seen by the courts as far less disturbing than the unbridled trampling of the individual's constitutional rights.*fn4 Mapp v. Ohio, supra.
The federal application of the exclusionary rule had its genesis in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), and was made applicable to the states through the fourteenth amendment in Mapp v. Ohio, supra. Following Mapp, the rule was first applied in New Jersey in State v. Valentin, 36 N.J. 41 (1961). In Novembrino, the Court traced the application of the rule in this State:
Since State v. Valentin, supra, the exclusionary rule has become imbedded in our jurisprudence. During the past twenty-five years it has consistently been applied to exclude from the State's case-in-chief evidence illegally obtained through warrantless searches or in reliance on defective warrants. E.g., State v. Valencia, 93 N.J. 126, 141 (1983) (evidence obtained as a result of telephone-authorized search would be suppressed where State failed to prove minimal procedural requirements to assure reliability); State v. Fariello, supra 71 N.J. 552 (requiring suppression of evidence of narcotics possession where affidavit was insufficient to show probable cause and issuing judge made no transcription or summary of officer's testimony); State v. Macri, supra, 39 N.J.  at 265-66 (mandating suppression of illegally seized evidence of bookmaking activities and rejecting State's argument in support of a good faith exception: "The good faith of the officer would not be sufficient here."); State v. Moriarity, 39 N.J. 502 (1963) (evidence that defendant conducted bookmaking and lottery was suppressed where affidavit did not show probable cause and officer's testimony to issuing judge not given under oath). [105 N.J. at 148, footnote omitted.]
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Notable in each of the cases cited in Novembrino, and in Novembrino itself, the evidence subject to suppression was excluded only from the State's case-in-chief. As noted earlier, research has not revealed, nor have movants submitted any reported New Jersey or federal decision where the evidence suppressed was excluded from a co-defendant's direct case.
It is apparent that despite its tainted character, ever-widening use is being made of suppressed evidence, progressively narrowing the scope of the rule. Over three decades ago the United States Supreme Court recognized the right of the State to introduce illegally seized evidence for impeachment purposes in Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954). Such usage was recently expanded to include the impeachment of defendant's answers on cross-examination if plainly within the scope of the direct, United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980). In United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974), the court held that a grand jury witness could not invoke the rule to refuse to answer questions based on a defective search warrant, and in United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976), that unlawfully seized evidence may be used by another sovereign in a civil action. In United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2nd Cir.1970), the Court ruled that suppressed evidence may be considered by a parole board in determining whether to revoke parole. Eight years later a New Jersey trial court ruled that such evidence may be considered with respect to defendant's motion for suspension of further proceedings, State v. Banks, 157 N.J. Super. 442 (Law Div.1978), reasoning that "(d)oing so will neither license nor encourage law enforcement officials to override the bulwark against government intrusion raised by the Fourth Amendment." Id. at 451.
Critical to the determination herein is the very nature of the evidence. Unlike a confession obtained in violation of
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Miranda*fn5 and a hearsay statement made by a defendant implicating a codefendant,*fn6 there is nothing inherently unreliable about physical evidence obtained wrongfully which renders it inadmissible. A confession obtained in violation in Miranda is deemed unreliable because of the very great potential for coercion inherent in the interrogation process. Likewise, an out-of-court confession by a defendant implicating a codefendant is inadmissible under Bruton*fn7 because by its nature, it is unverifiable hearsay.*fn8 Neither of these considerations apply with respect to inherently reliable physical evidence. As noted in State v. Whittingham, 142 N.J. Super. 45 (App.Div.1976):*fn9
A confession, if found to be voluntary and trustworthy, is inculpatory proof of the highest order. The exclusionary rule employed against receiving involuntary confessions into evidence serves as a deterrent against lawless police conduct: the rule even more importantly bears upon the probative worth or quality of the underlying evidence. Thus, the principal historical basis for the exclusion of self-incriminating statements obtained in violation of
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constitutional strictures recognizes the very great risk that evidence originating in this fashion is probably unreliable. . .
These considerations do not apply with the same force to the issues involved with respect to evidence seized, tested under the fourth amendment requirements. That evidence is generally demonstrative or tangible in nature. As noted, the circumstances under which a statement or confession has been secured bear directly upon its probative worth. The reliability of tangible or physical evidence, however, is ordinarily not affected by the manner in which it was obtained. Thus, the essential if not sole purpose served by the exclusionary rule in the context of a fourth amendment controversy is prophylactic -- to deter and discourage police conduct which is constitutionally offensive. In this setting the rule of exclusion does not clearly augment the truth determining function of the criminal trial, as in the case of a confession, by shielding from the record probably unreliable or untrustworthy evidence. [at 50-51; emphasis supplied]
In sum, the purpose underlying the exclusionary rule is fulfilled when evidence obtained as a result of police misconduct, as was the evidence here, is excluded from the State's case-in-chief.*fn10 "Where the sole objective in seizing evidence in good faith, but contrary to the dictates of the Fourth Amendment, is to obtain a criminal conviction and its use for that purpose has been suppressed, the policy behind the exclusionary rule has been fully satisfied." State v. Banks, supra, 157 N.J. Super. at 451 (citing United States v. Janis, supra, 428 U.S. 458, 96 S. Ct. at 3034). I find that there is no authority for the proposition that suppressed evidence may not be admitted into a codefendant's direct case. I further find that the evidence sought to be introduced is inherently reliable and subject to cross-examination. By limiting the evidence to Evid.R. 55 purposes, the movants are given the benefit of the use of the evidence in the case; yet Jason Morant is sufficiency protected from any undue prejudice resulting from its admission. Thus, the claim of prejudice on which the motion to sever is based must fall. Moreover, I have considered the impact of a severance
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on the right of the State to a fair trial*fn11 and find that the resultant prejudice to the State is potentially significant.
The motion to sever is denied.