On appeal from Superior Court of New Jersey, Law Division, Morris County.
Petrella, Baime and Ashbey. The opinion of the court was delivered by Baime, J.A.D.
This appeal presents questions of public concern. Following a protracted pretrial hearing, the trial court dismissed 17 indictments charging defendants with possession of cocaine (N.J.S.A. 24:21-20a(1)), possession with intent to distribute (N.J.S.A. 24:21-19a(1)) and distribution of the same controlled dangerous substance (N.J.S.A. 24:21-19a(2)). The court's determination was predicated upon its finding that the police had suppressed crucial identification evidence connected with an extensive undercover drug investigation. The proofs supporting this conclusion revealed that one of the principal investigating police officers failed to preserve the photographic arrays from which identifications of defendants were made and attempted to conceal his dereliction by fabricating incriminatory evidence. At issue is whether the flagrantly illegal conduct of the officer irreparably impaired defendants' rights to a fair trial.
While we find the officer's brazen misconduct wholly reprehensible, we question whether the public must pay the price by
forfeiting its day in court on otherwise properly found indictments. In our view, the tension between the interests of public security and individual rights can best be alleviated by remanding the matter for further proceedings to determine whether the taint emanating from this shocking incident can be purged and the prosecution conducted with unsullied evidence.
The salient facts are as follows. The indictments against defendants had their genesis in an extensive State Police undercover investigation into allegations of widespread sales of unlawful drugs in an area of Morristown known as the "Hollow." The project was conducted by the State Police with the cooperation and assistance of the Morristown Police Department. Although the record is not altogether clear, it would appear that the Hollow is heavily populated by black people. The plan thus envisioned that State Police Detective Roy Daniels, a black man, would be placed in the area over an extended period of time with the mission to ferret out and ultimately arrest those engaged in drug trafficking.
Daniels commenced his assignment in early June 1984. Dressed in jeans, sneakers, and wearing uncombed hair and a beard, Daniels attempted to infiltrate the drug community by patronizing local taverns and by making himself visible at traditional meeting places on the streets. During the ensuing four and one-half months, Daniels was able to purchase drugs on approximately 60 occasions. Under the established modus operandi, Daniels would make the purchase and, using photographs provided by the Morristown Police Department, would then attempt to learn the seller's identity.
James Smith, a veteran Morristown Police Detective, was assigned to assist Daniels in the identification process. Smith was chosen for the investigation because he knew most of the denizens of the targeted area. The record reflects that the Morristown Police Department uses what was characterized as
the "identi-kit" system of classifying "mug shots" by race, age, height, color and type of hair. After each purchase, Daniels would provide Smith with a general description of the seller. There is a conflict in the testimony regarding the manner in which photographs were shown to Daniels. While uncontradicted evidence was presented that all of the photographs were full front views of black men, Daniels and Smith testified that they were displayed in folders of six, while another officer who happened to be present on several occasions claimed that the "mug shots" were shown in "stack[s] of ten to 15." After making an identification, Daniels would remove the photograph and place it in a State Police file which he kept.
Ordinarily when conducting photographic identifications, Smith would preserve the photographic array and prepare a report memorializing the procedure employed. However, Smith testified that he deviated from his usual practice because of the large quantity of photographs used during the course of the lengthy investigation. Smith further testified that this problem was accentuated by orders he received from his superior in the Morristown Police Department directing him to refrain from preparing any report relating to the investigation. Although no reason for the prohibition was ever given to Smith, Daniels speculated that it was prompted by the need for secrecy and the danger of "leaks," which risk was particularly acute in light of the nature and extended time period of the investigation.
The investigation culminated in the arrest of 32 individuals. On November 30, 1984, the day of the arrests, Daniels and Smith were placed in an anteroom adjacent to a larger office where each suspect was processed. By use of a one-way mirror, Daniels identified each arrestee. According to Daniels, he identified some 30 individuals without any prompting or suggestion from Smith.
Following the return of the indictments, specific cases were assigned to various Assistant Morris County Prosecutors. In
the course of pretrial discovery proceedings, Assistant Prosecutor Thomas J. Critchley asked Investigator Mary Ann Hemphill to make arrangements with the Morristown Police for one of the defense attorneys to view the photographic arrays.
Hemphill contacted Daniels and asked for the six photographs he had referred to in his report on the Rodney Jones case. In response Daniels said he had only one photograph of Jones. Hemphill then contacted Smith, who told her that the photographs which had been shown to Daniels had been returned to the master file. She asked Smith to look through Jones' file for a record of the five other photographs which had been shown to Daniels. Smith did not immediately respond to this request, but later returned Hemphill's call, saying he could provide her with the five photographs. At Hemphill's request, Daniels delivered certain photographs to the prosecutor's office.
On the photograph provided by Daniels from his separate State Police file, the identification plate had been blacked out, and Daniels' initials and the date had been written on the back. Daniels testified that when he first removed the photograph from the folder in which it was displayed, the identification information was visible, but he blocked it out with a black magic marker, saying this was his own procedure which he had learned to utilize from experience. Daniels said in previous dealings he had learned that having "pedigree" information on the front of photographs had caused problems, but he could not further explain why it was necessary to black out this material. Hemphill testified that on the five photographs she had received from Smith, the identification plates had been blacked out as well.
Hemphill contacted Smith and asked for documentation regarding the identity of the five photographs he had provided, but he told her he had been instructed not to prepare reports. When she saw Daniels in the prosecutor's office, Hemphill ...