State v. Howery

The opinion of the court was delivered by

Clifford, J.

We granted certification, 77 N. J. 497 (1978), to review the Appellate Division’s affirmance, in an unreported opinion, of Richard Howery’s conviction on three drug charges: possession of heroin with David Townsend and John Clark in violation of N. J. S. A. 24:21-20(a) (1); distribution of heroin with Townsend and Clark contrary to N. J. S. A. 24:21-19 (a) (1); and conspiracy with Townsend and Clark to distribute heroin, a violation of N. J. S. A. 24:21-24. Townsend and Clark pleaded guilty and testified on behalf of the State. After the jury’s guilty verdict, Howery received consecutive terms of 10 to 12 years in New Jersey State Prison on the possession and distribution charges and a concurrent term of 3 to 5 years on the conspiracy conviction.

Before the Appellate Division defendant alleged error both as to his sentence and as to several trial rulings, including the admission of evidence obtained pursuant to a warrant search of his residence. Howery contended that the search warrant was invalid because the affidavit submitted in support thereof contained false statements material to a showing of probable cause. At the trial level hearing on his motion to suppress that evidence, defendant had sought to call witnesses for the purpose of establishing this falsity. The trial court disallowed the challenge, feeling bound by this Court’s opinion in State v. Petillo, 61 N. J. 165 (1972), cert. den., 410 U. S. 945, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973),¹ which held that a defendant may not challenge a facially sufficient search warrant on the ground that a supporting affidavit contains untruthful statements. Likewise in reliance on Petillo the Appellate Division rejected the attack on the warrant, recognizing that "on a motion to suppress evidence seized in execution of a search warrant, examination of a person whose affidavit supported the application for the warrant would normally be precluded”; and that “[t]he existence of probable cause for the warrant would be tested by what was presented to the issuing officer.”

I

While Howery’s appeal was pending in the Appellate Division, the United States Supreme Court granted certiorari in a case which squarely addressed the same issue decided by this Court in Petillo, supra, and raised here by Howery, namely, whether a criminal defendant must be allowed to challenge the validity of a search warrant on the basis of alleged false statements in a supporting affidavit. In Franks v. Delaware, 438 U. S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), decided only a few days after this Court granted Howery’s petition for certification, the Supreme Court ruled as a matter of federal constitutional law that where a defendant makes a substantial preliminary showing of material misstatements in a search warrant affidavit, made knowingly or with reckless disregard for the truth, he must be afforded an opportunity to inquire further into the veracity of the affidavit. If at such inquiry the defendant proves such falsity by a preponderance of the evidence, the warrant is invalid and the evidence seized thereby must be suppressed. 438 U. S. at 155, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672.

The Supreme Court’s Franhs decision resolved a conflict that had arisen in the state and lower federal courts over the application of state and federal constitutional principles to veracity challenges, both as to whether such challenges should ever be permitted, and, if so, under what circumstances they should be entertained. See 438 U. S. at 158, 98 S. Ct. at 2678, 57 L. Ed. 2d at 674 nn. 3 & 4. Among the decisions which had addressed the question was this ’Court’s opinion in State v. Petillo, supra, wherein we held, with what was then the overwhelming majority of courts, that to permit such challenges was not required by the Federal Constitution. 61 N. J. at 175-76. Uor did our State Constitution compel a different result, ibid., again aligning us with the majority of those courts which had looked to their respective constitutions. In Petillo this Court, in considering the competing considerations that determine the scope of suppression remedy, looked to the nature of the constitutional guarantee against unreasonable searches and seizures, the interest of the public in prosecuting criminals, and the availability of other remedies in vindicating rights secured by the Eourth Amendment to the United States Constitution and Article I, ¶7 of the New Jersey Constitution. Id. at 173-79. In our view a sworn affidavit submitted to an impartial judge, establishing on its face legally sufficient probable cause, satisfied the demands of the Eourth Amendment and of Art. I, ¶7; and if the affidavit supporting a search warrant contained a false statement by a police officer, sufficient remedy for such perjury would lie in a criminal prosecution or a civil action against the untruthful officer. 61 N. J. at 174.

Insofar as our opinion in Petillo imposed an absolute ban on veracity challenges, unquestionably it has been overruled by Franks. However the Franks court, in holding that veracity challenges must be permitted, was mindful of the concerns which underlay our decision in Petillo. Having articulated those same competing considerations, the Supreme Court concluded that ifbeeause of them, the rule announced today has limited scope, both in regard to when exclusion of the seized evidence is mandated, and when a hearing on allegations of misstatements must be afforded.” 438 U. S. at 166-167, 98 S. Ct. at 3682-2683, 57 L. Ed. 2d at 679-80.

The limitations imposed by Franks are not insignificant. Eirst, the defendant must make a “substantial preliminary showing” of falsity in the warrant. Id. at 681, 98 S. Ct. at 2684, 57 L. Ed. 2d at 681. In keeping with the purpose of the exclusionary rule as a deterrent to egregious police conduct, the defendant cannot rely on allegations of unintentional falsification in a warrant affidavit. He must allege “deliberate falsehood or reckless disregard for the truth,” pointing out with specificity the portions of the warrant that are claimed to be untrue. These allegations should be supported by an offer of proof including reliable statements by witnesses, id. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 683, and they must be proved by a preponderance of the evidence. Finally, the misstatements claimed to be false must be material to the extent that when they are excised from the affidavit, that document no longer contains facts sufficient to establish probable cause. Id. at 171, 98 S. Ct. at 3684, 57 L. Ed. 3d at 683.

We note that subsequent to Franks the California Supreme Court has gone beyond the requirements of that decision by interpreting its own state constitution. That Court has held that a warrant is invalid when a supporting affidavit is found to contain any deliberate untruth, whether the misstatement is material or not, because in its view the discovery of a deliberate falsity, even if itself unimportant, undermines the credibility of the entire affidavit. People v. Cook, 22 Cal. 3d 67, 148 Cal. Rptr. 605, 583 P. 2d 130 (1978). In view of the reasoning in our opinion in State v. Petillo, based in part on an interpretation of this State’s constitution, we decline to follow the California approach. Hence we hold that Hew Jersey courts, in entertaining veracity challenges, need go no further than is required as a matter of Federal Constitutional law by Franks v. Delaware, supra.

II

Although Franks v. Delaware was decided subsequent to the suppression hearing and trial in this case, Howery urges that the rule announced in Franks should be applied retroactively. It is his contention that if the Franks rule is applied to the facts as adduced at his trial, he will be entitled to suppression of the evidence seized in the search of his home and thus to a new trial.

In State v. Nash, 64 N. J. 464, 469-70 (1974), this Court identified the four approaches that have been developed with respect to the applicability of a new rule of law: strict prospectivity, general retroactivity, and two forms of limited retroactivity. We there pointed out that in determining ■which approach should be adopted in a given ease, the competing considerations “are weighed by examining (1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.” Id. at 471.

As to the first of the factors to be considered we find persuasive the observation made by the United States Supreme Court in United States v. Peltier, 422 U. S. 531, 535, 95 S. Ct. 2313, 2316, 45 L. Ed. 2d 374, 380 (1975), that “in every ease in which the Court has addressed the retroactivity problem in the context of the exclusionary rule * * * [it] has concluded that any such new constitutional principle would be accorded only prospective application.” This result has obtained, the Court explained, because the deterrent purposes of the exclusionary rule are not served by retroactive application. Id. at 538-39, 95 S. Ct. at 2317-2318, 45 L. Ed. 2d at 382. More importantly, the reliability and relevancy of the evidence sought to be suppressed in this case is not questioned. The Franks rule, being a new variant of the exclusionary rule device, is not one which concerns either the reliability of the verdict or the integrity of the fact-finding process at a criminal trial. Id.

The dissenting opinion would have us apply Franks retroactively in order to “uphold The imperative of judicial integrity.’ ” Ante at 578. While it is true that a secondary purpose of the exclusionary rule is to vindicate the integrity of the judicial process, it is also true that the United States Supreme Court has eschewed any substantial reliance on this rationale in determining the scope of application of that device.

While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence.

[Stone v. Powell, 428 U. S. 465, 485, 96 S. Ct. 3037, 3048, 49 L. Ed. 2d 1067, 1083 (1976).]

Franks v. Delaware is illustrative of the above-stated principle. The Supreme Court did not rely on the "judicial integrity” rationale in holding that veracity challenges must be permitted, Franks v. Delaware, supra, 438 U. S. at 166-167, 98 S. Ct. at 2682-2683, 57 L. Ed. 2d at 679-80; rather, the thrust of the Court’s reasoning was that the prospect of a subsequent challenge to the veracity of statements made in a search warrant is necessary to "discourage lawless or reckless misconduct.” Id. 438 U. S. at 167, 98 S. Ct. at 2683, 57 L. Ed. 2d at 680. It would be inconsistent with the Supreme Court’s reasoning in Franks to justify a retroactive application of the Franks rule on a rationale that was not relied on in fashioning that rule in the first instance.

With respect to the second of the factors enumerated in Nash, there can be no doubt of the reliance in this jurisdiction on the now-overruled Petillo decision. The trial court here repeatedly referred to Petillo in refusing to allow the defendant to “try the search warrant” at his trial. Unquestionably this ruling was correct under the law applicable at the time the suppression hearing was held; hence, even if it be assumed that the warrant contains perjurious statements, the conviction of the defendant was obtained in good faith reliance on "then-prevailing constitutional norms.” Peltier, supra, 422 U. S. at 536, 95 S. Ct. at 2316, 45 L. Ed. 2d at 380; Linkletter v. Walker, 381 U. S. 618, 636-40, 85 S. Ct. 1731, 1741-1743, 14 L. Ed. 2d 601, 612-14 (1965). And as indicated above, the Appellate Division as well relied on Petillo in upholding the conviction in this ease. •

It matters not, for purposes of determining the question of retroactivity, that the police officers may have acted in bad faith by "relying” on the Petillo rule in perjuring themselves in order to obtain a warrant. Refusals to apply exclusionary rule decision retroactively have not depended on whether or not the police may have deliberately broken the law in seizing evidence. In Linkletter v. Walker, supra, the Supreme Court recognized that prior to Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 state law en-foreement officials were relying on the absence of a federally-imposed exclusionary rule as “a license to violate” the prohibition against unreasonable searches and seizures. 381 U. S. at 635, 85 S. Ct. at 1740, 14 L. Ed. 2d at 612. Such deliberate conduct was no less offensive or illegal than any perjury that may have taken place in this case, yet the 'Court declined to afford the Mapp exclusionary rule retroactive application. A similar result obtained in Fuller v. Alaska, 393 U. S. 80, 89 S. Ct. 61, 21 L. Ed. 2d 212 (1968), where the Court declined to make retroactive its decision in Lee v. Florida, 392 U. S. 378, 88 S. Ct. 2096, 20 L. Ed. 2d 1166 (1968) (evidence seized by state officers in violation of federal statute inadmissible in state criminal trials). Our approach to this aspect of the retroactivity problem is consistent with that of the Supreme Court which reasoned, in Peltier, that if lad faith reliance on a rule of law does not offend the imperative of judicial integrity, “[i]t would seem to follow a fortiori from the Linkletter and Fuller holdings that the 'imperative of judicial integrity’ is also not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law * * 422 U. S. at 537-38, 95 S. Ct. at 2317-2318, 45 L. Ed. 2d at 381 (emphasis supplied and in original).

Finally, the effect of retroactive application of Franks on the administration of justice would be significant. It would require courts to delve into the allegations of what would doubtless be a considerable number of defendants, to the effect that police officers had lied in affidavits long stale. Having considered the relevant factors, it is our view that Franks should be applied prospectively only — that is, to search warrants issued after the Franks decision, and thus not to this case. Hence, the attack on the search warrant must fail.

Ill

Despite the conclusion stated above, we go further to demonstrate that our examination of the record discloses the inaccuracy of defendant’s contention that if we were to apply Fmnlcs to his case, a reversal and new trial would be mandated.

The sequence of events leading to defendant’s conviction began with the arrest of one Neil Agostini by Detective George Morris of the Pennsauken Police Department on July 31, 1973. Agostini agreed to cooperate with the police and make a controlled purchase of narcotics. Later that same day Detective Morris listened as Agostini telephoned David Townsend to arrange a purchase of two bundles,” or 50 bags, of heroin. That evening Townsend arrived at Agostini’s house. Agostini gave Townsend $240 that had been provided by the police officers, who had earlier recorded some of the serial numbers of this currency, and Townsend departed. He returned at 2:00 o’clock the next morning driving defendant Howery’s Volkswagen, whereupon he was arrested by Detective Morris. In Townsend’s possession were 55 glassine envelopes of heroin as well as a twenty-dollar bill bearing one of the previously-recorded serial numbers.

Based on information supplied by Townsend the police made a warrant search of the residence of John Clark later the same morning and seized 881 bags of heroin and a note. That note, introduced into evidence at Howery’s trial, read: “It’s OK, give Dave (2). Rich.” The prosecutor argued at trial that this note was from Richard Howery authorizing John Clark to give David Townsend two “bundles” of heroin — the same heroin that was later bought by Neil Agostini under police supervision.

Eollowing his arrest Clark gave Detective Morris information regarding his drug dealings with Richard Howery. Armed with the information supplied by Clark and earlier by David Townsend, Detective Morris executed an affidavit detailing the circumstances of the arrests of Agostini, Townsend and Clark, and the admission by Clark that defendant Howery was his drug supplier. Based on the affidavit a warrant for the search of Howery’s residence issued.

At the commencement of this search, the officers read Howery his Miranda warnings. The search yielded, among other things, four one-dollar bills, which had been among the marked and recorded currency given to Townsend by Agostini for the drug purchase, and a blue note pad. Both were later admitted into evidence at Howery’s trial. Officers present at the search also testified at Howery’s trial that when Howery learned of the marked bills, he stated: “You’d expect them to mark the twenty dollar bills but the m.....f.....s marked the ones.”

Howery alleges two instances of misrepresentation in the search warrant affidavit executed by Detective Morris. He points to two discrepancies between the note seized at the residence of John Clark and the description of that note in paragraph 16 of the affidavit. The note in fact read: “It’s OK, give Dave (2). Rich.” In the affidavit Detective Morris recited in paragraph 16 that “found in possession of John Clark was a note signed Tiichie’ telling Clark to give Dave two bundles.” Thus, the affidavit said that the note was signed “Richie” instead of “Rich,” and the word “bundles” was inserted.

As to the use of the name “Richie” instead of “Rich,” it would be absurd to contend that such a minor error is of the kind that might vitiate a finding of probable cause in the warrant affidavit, and under the circumstances before us we attach no weight whatsoever to it. The insertion of the word “bundles” is more troublesome, however. We have seen enough of these cases to have learned that that word is used in the drug trade to specify a quantity of heroin. Its use in the affidavit obviously is an interpretation by the affiant of the literal words of the note. Howery argues that the note standing alone is innocuous and that the calculated addition of the word “bundles” attaches a sinister meaning to an otherwise innocent communication. But this one element of the affidavit cannot be taken out of context; it must be read in connection with the events described in the preceding paragraphs of the affidavit, all of which revolve around the purchase of two “bundles” of heroin. Evaluating the entire affidavit in a commonsense and realistic fashion, State v. Kasabucki, 52 N. J. 110 (1968), it is a fair interpretation of the note’s terms to conclude that the reference “(2)” was to “two bundles” of heroin. Moreover, the word “bundles” cannot be said to be “material” as defined in Franks v. Delaware, for even if the word “bundles” is stricken from paragraph 16 of the affidavit, that document as a whole would still satisfy the probable cause standard.

The second alleged warrant error pointed to by Howery relates to paragraph 19 of Detective Morris’s affidavit, which reads in its entirety: “That John 'Clark told me on August 1, 1973, that, Richard Howery customarily keeps a quantity of Heroin at his residence.” This statement is unquestionably material to the finding of probable cause to search Howery’s residence, for although the affidavit details at some length the drug transactions whies led police to conclude that Howery was a drug dealer, the only mention of heroin being kept at Howery’s residence is in this statement. See Zurcher v. Stanford Daily, 436 U. S. 547, 556, 98 S. Ct. 1970, 1976, 56 L. Ed. 2d 525, 535 (1978).

The veracity of the statement in paragraph 19 came into question during the direct testimony otf John Clark, who, as noted previously, testified for the prosecution at Howery’s trial. He denied telling Detective Morris at the time he was arrested that Richard Howery kept heroin at his house because he knew that Howery never kept drugs at his own house. On redirect examination Clark testified that he may have told Detective Morris that the quantity of heroin utilized in the drug distribution ring was kept at the residence of Jimmy Howery, the brother of defendant, for that was where Clark understood the drugs were kept. The trial Judge became “disturbed” by the inconsistency between Clark’s testimony and the statement attributed to him by Detective Morris in paragraph 19, and in order to clarify the, situation he conducted a voir dire of both Morris and Clark. Morris reiterated- that he understood Clark to have meant. that the heroin was kept at the house of defendant Richard Howery, not that of his brother, Jimmy.

It is apparent from the foregoing that the misrepresentation, if any, concerning the presence of heroin at the defendant’s house resulted from a misunderstanding between Clark and Detective Morris as to which Howery Clark was referring to rather than from the type of bad-faith, perjurious misconduct which would necessitate excision of the challenged paragraph from the affidavit under Franks v. Delaware. Defendant’s claim that the application of Franks to his case should result in a new trial is therefore unfounded.

IV

We have carefully considered defendant’s remaining contentions and find them to be without merit.

Affirmed.

1 Following the affirmance of his conviction the defendant in State v. Petillo successfully sought a writ of habeas corpus in Federal Dis-strict court. United States ex rel. Petillo v. New Jersey, 400 F. Supp. 1152 (D. N. J. 1975). The Third Circuit vacated that judgment and remanded to the District Court for reconsideration in light of Stone v. Powell, 428 U. S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). United States ex rel. Petillo v. New Jersey, 541 F. 2d 275 (3d Cir. 1976). The original writ was reinstated, 418 F. Supp. 686 (D. N. J. 1976), and on appeal the Third Circuit reversed. 562 F. 2d 903 (3d Cir. 1977).