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
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
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
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 ...