QUASI-CRIMINAL ACTION OPINION
The primary and novel issue in this case is whether the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Paragraph 1 of the New Jersey Constitution requires notice and an opportunity to be heard before a person believed to be a material witness may be arrested or detained. In addition, the court addresses the issue of whether a pending criminal action is required under the statute before a material witness may be apprehended or detained.
In this action, the court issued a warrant for the arrest of Janos Misik ("Misik") as a material witness pursuant to N.J.S.A. 2A:162-2 et seq., the so-called "Material Witness" statute, based on an ex parte affidavit and complaint made by a detective of the New Jersey State Police alleging that Misik had essential and material knowledge concerning the commission of certain environmental crimes and that his arrest was necessary because, allegedly, he would not be available for service of a subpoena.
The affidavit contained the following allegations in support of the issuance of the warrant: that Misik had important information connecting his employer, Petro King Terminal Corporation, with certain pollution violations, which involved the leaking of a petroleum product into the Hackensack River; that although initially Misik had been cooperative with the police, he subsequently failed to keep an appointment for questioning by the prosecutor; that Misik was a foreigner, suspected of illegal alien status because he had once failed to produce his "green card" to the police; that Misik lived on a boat on the Hackensack River which displayed a "for sale" sign; that the information provided by Misik as to the exact location of the boat in the marina had been erroneous; and, finally, that Misik had a criminal record for drug offenses.
At the time of the ex parte application, no criminal action or proceeding of any kind had been commenced by the State against Petro King Terminal Corporation or anyone else.
After reviewing the statute and pleadings (no brief was submitted), the court had an in camera discussion with the assistant prosecutor concerning the basis of the State's authority to obtain an ex parte warrant for the arrest of Misik. The assistant prosecutor submitted that the State had authority to arrest Misik as a material witness even without a warrant so long as it could demonstrate probable cause for the arrest and even though the State had not yet filed criminal charges
against Misik's employer.*fn1 In addition the assistant prosecutor urged as a basis for the warrant the State's need to take a statement from Misik in order to prepare its case for the grand jury, which had not yet been convened for that purpose. As the result of the foregoing, the court issued the warrant, which authorized the police to arrest Misik and directed that he be brought before the court so that the court could advise him of the nature and purpose of the proceedings and his rights in connection therewith. The court further ordered the warrant to be returned to the court by 9:00 a.m. the following day in the event Misik had not yet been apprehended.
Misik was arrested the same day as the warrant was issued, but instead of bringing him before the court, Misik was brought to the prosecutor's office and subjected to a lengthy custodial interrogation. Thereafter he was detained overnight in the county jail where apparently he was treated like an ordinary prisoner, contrary to N.J.S.A. 2A:162-3. The next morning, at approximately 9:00 a.m., Misik was brought before the court, handcuffed and in prison garb. He was, however, accompanied by an attorney, who rightfully decried the nature of the treatment Misik had received, objected to the procedures adopted by the court in issuing the warrant in the first instance, and requested leave to submit a brief challenging the constitutionality of the statute and the procedures utilized by the State in effecting his arrest.
Following oral argument, the court ordered Misik's release from custody on his own recognizance on condition that he personally report to confirm his whereabouts on a weekly basis to the prosecutor's office for a period of one month. The assistant prosecutor was advised that if during that time the State had not convened a grand jury to investigate the criminal allegations of environmental violations, the reporting condition
imposed upon Misik would automatically be discharged. At that time leave was granted to Misik's attorney to file a brief in support of his challenge to the statute and in opposition to the continuation of any restrictions on Misik's personal liberty. Subsequently, the Association of Criminal Defense Lawyers of New Jersey was granted leave to participate as an amicus curiae in the case.
Shortly thereafter, the court heard legal argument on Misik's application to declare the statute unconstitutional at which time, in an apparent effort to render moot the due process issues raised by Misik, the State volunteered its willingness to relinquish its right to enforce the weekly reporting condition and to dismiss the "material witness" complaint.
This opinion supplements the Court's oral decision from the bench regarding the constitutional challenge by Misik on the grounds that he was denied procedural due process of law.
The "Material Witness" statute*fn2 and the Court Rule promulgated
thereunder*fn3 authorizes a judge to require the posting of "sufficient surety" by a person who "shall declare" or who "can give testimony" against an "accused" as a condition for his release if detained or committed as a potential witness. The statute does not define the term "material witness," nor does it contain any standards for determining the circumstances under which such a witness may be arrested. Neither does the statute provide express authority for the arrest or detention of the witness, nor does it set forth any procedures to govern the arrest process, such as notice or an opportunity to be heard in opposition thereto. In fact the statute, which has its origin in a century-old law, see State v. Hand, 101 N.J. Super. at 51, 242 A.2d 888, does not even contain the phrase "material witness." However, according to Hand the power to arrest and detain a material witness is derived from New Jersey's common law of arrest, Id. at 53, 242 A.2d 888, and probably is inferable from the statute itself. See Bacon v. United States, 499 F.2d 933, 937 (9th Cir.1971). In any event, it is clear that courts would be without power to require any kind of surety to secure the appearance of a person as a material witness in the absence of the statute. Id. at 939.
In State v. Price, 108 N.J. Super. 272, 260 A.2d 877 (Law Div.1970), an attempt was made to judicially create standards for implementing the statute. There, the court interpreted the statutory words "when the interest of justice requires" as intended "to . . . limit the applicability of the procedure to those cases where the evidence possessed by the witness is important and the witness is unlikely to appear for trial without surety." Id. at 280, 260 A.2d 877. It further recognized a limitation on the scope and purpose of the statute by observing that police
may not hold a potential witness unless there is a pending criminal action against an accused. By contrast, the court in Hand appears to sanction the warrantless arrest and detention of a person believed to be a material witness notwithstanding the absence of any formal criminal charges against an accused. Neither Hand nor Price, however, deal with the question as to whether and to what extent the Due Process Clause of the Fourteenth Amendment applies to the arrest and detention of an alleged "material witness."
In this case, Misik did not present a claim directed to the substantive issue of probable cause and the criteria for determining whether and under what circumstances a potential witness may be arrested or detained. Nevertheless, this court believes that some guidance on this issue is appropriate. First, a careful examination of the express language of the statute compels the conclusion that a criminal action must be pending against an accused before a court may sanction the detention of a person believed to be a "material witness." This conclusion is supported by the use of the word "accused" in the statute as well as the language to the effect that a witness may not be committed or detained in jail as a witness unless a person has been "charged with a crime." N.J.S.A. 2A:162-2. Accordingly the contrary rule in the Hand case as well as the State's argument which relied thereon is rejected.*fn4 Several states which have considered this question through legislative enactment have recognized the necessity for a pending criminal action before a person may be detained as a "material witness." See, for example, the New York statute, 11A Crim.Proc.Law Sec. 620.10, which requires "a pending criminal action"; the federal act, 18 U.S.C. Sec. 3144, which speaks about the testimony of a person in a "criminal proceeding"; and the Nebraska statute, Neb.Rev.Stat. Sec. 29-507 (1981), which permits detention
of a witness against a person accused of a felony. See also Rodriguez v. Sandstrom, 382 So. 2d 778 (Fla.App.1980) (holding that the court lacks inherent or statutory authority to hold a material witness in jail where no charges are pending against any person in the case.)
This court also rejects the State's argument in support of its ex parte application that it needed more time in which to conduct its own investigation before presenting its case to the grand jury which, as indicated above, the State admitted had not yet been convened for that purpose. It is well established that our Rules do not give a prosecutor any pre-trial subpoena power independent of the grand jury. Matter of Nackson, 221 N.J. Super. 187, 205, 534 A.2d 65 (App.Div.1987), aff'd., 114 N.J. 527, 555 A.2d 1101 (1989); see also State v. Hilltop Private Nursing Home, Inc., 177 N.J. Super. 377, 394-395, 426 A.2d 1041 (App.Div.1981). Equally understood is the principle that the grand jury process itself may not be used by the prosecutor solely to conduct his own investigation. Durbin v. United States, 221 F.2d 520, 522 (D.C.Cir.1954), cited in Nackson, 221 N.J. Super. at 205, 534 A.2d 65. Moreover, even where our Supreme Court has approved of investigative detention for the purpose ...