State V Carpentieri Continued

FN4. The majority also relies on N.J.S.A. 39:3-29 as additional authority for its view of prior law regarding investigatory stops of motor vehicles. Of course, federal constitutional decisions raise doubts concerning State statutes as well as caselaw. But it is even more telling to note that the statute says nothing about when a peace officer may request a driver’s license. All it does state is that a motorist must present a license and other papers when the officer demands them. It does not provide when the officer may make a legitimate demand. That the statute was cited in State v. Gray, 59 N.J. at 567, 285 A.2d 1, does not alter the validity of this observation.

FN5. The majority’s assertion that Prouse effected a “radical departure” from “long-standing legal authority” appears to rest on dicta in Gray and Kabayama. While the Appellate Division’s opinion in Kabayama mentioned the practice of randomly stopping single vehicles, 98 N.J.Super. at 88, 236 A.2d 164, the only issue before the court was whether “the practice of establishing roadblocks by the police for license and * * * registration checks” constitutes an unconstitutional invasion of privacy. Id. at 87, 236 A.2d at 165. That Prouse would not disturb the result reached in Kabayama is clear from the Supreme Court’s express statement that roadblock-type stops involving less than unbridled police discretion are not unreasonable under the Fourth Amendment. See 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673; id. at 663-664, 99 S.Ct. at 1401, 59 L.Ed.2d at 673-674 (Blackmun and Powell, JJ., concurring). Nor is it clear that an application of Prouse would invalidate the initial vehicle stop in Gray. The issue in Gray was whether the police had probable cause to search a manila envelope and the trunk of the vehicle after the driver failed to produce a license or registration card and engaged in other furtive behavior. 59 N.J. at 568, 285 A.2d 1. In commenting on the circumstances which preceded the initial stop, Justice Proctor cited Kabayama, but rested the validity of the seizure on the clear “aura of suspicion surrounding (Gray’s) actions and his use of the automobile on the day in question.” Id. at 567, 285 A.2d at 3. This is consistent with Prouse which requires only that the vehicle stop be based on articulable and reasonable suspicion that the vehicle or an occupant is subject to seizure for violation of law. 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673.

Virtually all courts which have considered Prouse in deciding a case which was pending direct appellate review on the date of the Supreme Court’s decision [FN6] have not hesitated to apply it, without mentioning the issue of retroactivity. Casal v. State, 375 So.2d 1077 (Fla.Dist.Ct.App.1979); Kennan v. State, 372 So.2d 1012 (Fla.Dist.Ct.App.1979); *564 State v. Tucker, 286 Or. 485, 595 P.2d 1364 (Sup.Ct.1979); Hughes v. State, 588 S.W.2d 296 (Tenn.Sup.Ct.1979). A recent decision by the United States Supreme Court indicates, at the least, no objection to such retroactive application. [FN7]

FN6. Prouse was decided on March 27, 1979.

FN7. In State v. Kretchmar, 201 Neb. 308, 267 N.W.2d 740 (Sup.Ct.1978), the Nebraska Supreme Court upheld a conviction for possession of marijuana discovered during a random stop. Subsequent to the date of the decision in Prouse, the Court granted certiorari, vacated the judgment of the Nebraska Supreme Court and remanded the case for further consideration in light of Prouse. 440 U.S. 978, 99 S.Ct. 1783, 60 L.Ed.2d 237 (1979). The Nebraska Supreme Court withdrew its former opinion, found Prouse to be applicable again, without mention of retroactivity and remanded to the trial court with instructions to dismiss. 203 Neb. 663, 280 N.W.2d 46 (Sup.Ct.1979). Although one can only speculate as to the meaning of the United States Supreme Court’s actions in Kretchmar, I believe, as did the Nebraska Supreme Court, that those actions signal the fact that Prouse need not be limited to prospective effect only.

Kretchmar is highly analogous to prior actions by the Supreme Court involving United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), where the Court held that a search warrant is required before police may open a locked footlocker which they lawfully seized at the time of the arrest of its owner, when there was probable cause to believe it contained contraband. In June 1977 the Supreme Court vacated a judgment of the Court of Appeals for the Eighth Circuit, involving a 1974 briefcase search, 543 F.2d 59 (8th Cir. 1976), and remanded for further consideration in light of Chadwick. Schleis v. United States, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977). On remand en banc, the Eighth Circuit held that Chadwick was to be accorded retrospective effect because “Chadwick announces no new constitutional doctrine, nor does it broaden any existing exclusionary rule.” United States v. Schleis, 582 F.2d 1166, 1174 (8th Cir. 1978) (en banc ). The court specifically noted that if the Supreme Court had not intended Chadwick to be applied retroactively, there would have been no reason for a remand. Id. at 1173 n. 6; see also People v. Minjares, 24 Cal.3d 410, 153 Cal.Rptr. 224, 228-230, 591 P.2d 514, 519-520 n. 6 (Sup.Ct.1979), cert. den., 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117 (1979).

*565 II


Even apart from the “sharp break” test, the Prouse holding should be applied to cases such as this one which were pending direct review when Prouse was decided. As stated above, the Constitution neither prohibits nor requires such retrospective effect. See Linkletter, 381 U.S. at 629, 85 S.Ct. at 1737, 14 L.Ed.2d at 608. In the words of Justice Cardozo: “We think the federal constitution has no voice upon the subject.” Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). Without such guidance, “in each case a court must weigh and balance the competing considerations militating in favor of or against any particular form of retroactivity.” State v. Howery, 80 N.J. at 577, 404 A.2d at 639 (Pashman, J., dissenting). This Court has identified the following criteria as relevant to such a determination:

(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. (State v. Howery, 80 N.J. at 569, 404 A.2d at 635 (quoting State v. Nash, 64 N.J. 464, 471, 317 A.2d 689 (1974)))

See, e. g., Williams, 401 U.S. at 652, 91 S.Ct. at 1152, 28 L.Ed.2d at 394; Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967); **976 Linkletter, 381 U.S. at 636, 85 S.Ct. at 1741, 14 L.Ed.2d at 612. For many of the same reasons that I expressed in Howery, 80 N.J. at 575, 404 A.2d 632 (Pashman, J., dissenting), I am of the opinion that each of the above factors militates in favor of applying Prouse to this and all other cases in which avenues of direct review were not exhausted prior to the date of that decision.

*566 By reaffirming the Howery position on retroactivity as it relates to the Fourth Amendment, the Court again ignores the fact that deterrence is not the sole purpose of the exclusionary rule. It is also designed to uphold “the imperative of judicial integrity.” Mapp v. Ohio, 367 U.S. at 659, 81 S.Ct. at 1694, 6 L.Ed.2d at 1092; Elkins v. United States, 364 U.S. 206, 221-222, 80 S.Ct. 1437, 1446-1447, 4 L.Ed.2d 1669 (1960). This rationale lies at the heart of the exclusionary rule because “(a) ruling admitting evidence in a criminal trial * * * has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur.” Terry v. Ohio, 392 U.S. at 13, 88 S.Ct. at 1875, 20 L.Ed.2d at 901. The Court today fails to appreciate that “(t)he efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.” Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914).

In addition to failing to heed “the imperative of judicial integrity,” the Court also implicitly reaffirms its view in Howery that the deterrent purposes of the exclusionary rule in Prouse would not be furthered by even limited retrospective application. See Howery, 80 N.J. at 569, 404 A.2d 632. I continue to disagree. The Court’s position disregards the fact that the exclusionary rule focuses on general rather than specific deterrence. Specific deterrence is the punishment of an individual so that he himself will not repeat the same behavior. But “(t)he justification for the exclusion of evidence obtained by improper methods is to motivate the law enforcement profession as a whole not the aberrant individual officer to adopt and enforce regular procedures that will avoid the future invasion of the citizen’s constitutional rights.” Dunaway v. New York, 442 U.S. 200, 221, 99 S.Ct. 2248, 2261, 60 L.Ed.2d 824, 841 (1979) (Stevens, J., concurring). *567 The exclusionary rule’s “purpose is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. at 217, 80 S.Ct. at 1444, 4 L.Ed.2d at 1677. Limited retroactive effect of the rule of Prouse to cases on direct review would clearly serve this general deterrent effect.

When considering the second criterion for retroactivity reliance on prior law it is crucial to view that reliance from the proper perspective. Unlike the individual police officer, a law enforcement organization can be properly charged with foreseeing clearly developing constitutional principles before they are explicitly applied as the law of a case. Responsibility for educating police in their behavior should rest on those officials with the ability to evaluate clearly developing constitutional principles. Ultimately they have the obligation in seeing that law enforcement techniques pass constitutional muster. Retrospective application of a foreshadowed rule of law would give these institutional law enforcement authorities the incentive to seek out and discontinue suspect practices. Accordingly, reliance on past law must be justifiable from the relatively objective standpoint of the law enforcement agency, not the subjective perspective of the individual officer.

(I)t is very difficult to believe that * * * the retrospectivity of a Supreme Court decision can turn upon the subjective state of a particular searching officer’s mind or upon the degree to which he may be sophisticated in reading Supreme Court opinions. If it did, the applicability of Supreme Court decisions in cases involving searches would be hopelessly conflicting and unpredictable. They are **977 troublesome enough when we are obliged to deal only with the differing states of judges’ minds on this complex subject. (United States v. Escalante, 554 F.2d 970, 975 (9th Cir. 1977) (en banc ) (Hufstedler, J., dissenting), cert. den., 434 U.S. 862, 98 S.Ct. 192, 54 L.Ed.2d 136 (1977))

At the time of the search involved in this case November 13, 1976 the practice of random stops by police was indeed a highly suspect practice. Brignoni-Ponce had already forbidden such *568 stops in a highly analogous situation. By the time of the search, courts in other jurisdictions had held that the Fourth Amendment prohibits the kind of stop which occurred here. See United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971); State v. Ochoa, 23 Ariz.App. 510, 534 P.2d 441 (Ct.App.1975), rev’d on other grounds, 112 Ariz. 582, 544 P.2d 1097 (Sup.Ct.1976); People v. Whalen, 390 Mich. 672, 213 N.W.2d 116 (Sup.Ct.1973); People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (Ct.App.1975); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (Sup.Ct.1973); [FN8] see also United States v. Cupps, 503 F.2d 277 (6th Cir. 1974). Although not yet specifically forbidden in New Jersey, the practice was surely questionable. Refusing nonretroactive application of the exclusionary rule is an open invitation to law enforcement agencies to disregard developing constitutional norms in the future. By viewing changes in search and seizure doctrine as narrowly as possible, this approach will encourage law enforcement officials to view all civil liberties in the same narrow manner. See Note, “A la Recherche du Temps Perdu : Retroactivity and the Exclusionary Rule,” 54 N.Y.U.L.Rev. 84, 106 (1979) (hereinafter “Retroactivity”).

FN8. Only two courts permitted arbitrary investigatory stops after Brignoni-Ponce. In one case, the Tenth Circuit Court of Appeals refused to reconsider a 1972 decision in the light of developments elsewhere. United States v. Jenkins, 528 F.2d 713, 714 (10th Cir. 1975). The other decisions came from the Nebraska Supreme Court, State v. Shepardson, 194 Neb. 673, 235 N.W.2d 218 (Sup.Ct.1975); State v. Holmberg, 194 Neb. 337, 231 N.W.2d 672 (Sup.Ct.1975), and were later effectively repudiated by that court in Kretchmar, supra at 564 n. 7.

In contrast, granting limited retrospective effect to extensions of exclusionary principles will give due regard to the concept of general deterrence which lies at the heart of the Fourth Amendment.

*569 By demonstrating that society will attach serious consequences to the violation of constitutional rights, the exclusionary rule invokes and magnifies the moral and the educative force of the law. Over the long term this may integrate some fourth amendment ideals into the value system or norms of behavior of law enforcement agencies. (Oaks, “Studying the Exclusionary Rule in Search and Seizure,” 37 U.Chi.L.Rev. 665, 756 (1970))

To give Fourth Amendment protections their intended meaning, “(l)aw enforcement agencies must have an incentive to conform their activities to clearly emerging developments in the law before a court strikes down a practice * * * . The threat of retroactive application of at least certain newly recognized exclusionary principles appears to be the only effective means, at present, of instilling that incentive.” “Retroactivity,” supra, 54 N.Y.U.L.Rev. at 101 n. 82.

As for the third strand in the retroactivity analysis, it can readily be perceived that the effect on the administration of justice as to those few cases pending direct review would be minimal. Such limited retrospective application would certainly not inundate our lower courts with a deluge of petitions supported by “stale” evidence. See Howery, 80 N.J. at 582-583, 404 A.2d 632 (Pashman, J., dissenting).


Each of the three factors in the retroactivity analysis of Nash and Howery [FN9] militates **978 in favor of limited retroactive application *570 of the Prouse rule in this case. I also believe that a commitment to even-handed justice demands that all cases pending direct review be decided “in light of our best understanding of governing constitutional principles.” Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 1173, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring and dissenting).

FN9. The three-part test itself has not been found to be an entirely satisfactory solution. Former Chief Justice Traynor of the California Supreme Court has stated that the test’s inadequacy lies mainly in the failure to weigh against the (factors embodied in the three-part test) the hardship and inequity suffered by those who are denied the benefit of the new rule and compelled to bear the burden on what is now admittedly recognized as an unjust rule. (Traynor, “Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility,” 28 Hast.L.J. 533, 561 (1977))

To determine whether there should be only prospective application of a new rule, Chief Justice Traynor would require clear demonstrations that a precedent must be overruled, that the new rule is the best of all possible replacements, and that the hardship on a party who has relied on the old rule outweighs the hardship on the party denied the benefit of the new rule. Since there are few cases where such rigorous demonstrations can be made, there should be few occasions when prospective overruling can justifiably displace the normal retroactive application of an overruling decision. (Id. at 561-562)

Similarly, Justice Harlan has maintained that the inquiry into the nature, purposes and scope of a particular constitutional rule is essential to determining whether that is the correct substantive rule of law.

That inquiry is, however, quite simply irrelevant in deciding, once a rule has been adopted as part of our legal fabric, which cases then pending in this Court should be governed by it. (Mackey v. United States, 401 U.S. 667, 681, 91 S.Ct. 1160, 1174, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring and dissenting))

There is little wisdom and no fairness in “(s)imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule * * * .” Id. at 679, 91 S.Ct. at 1173, 28 L.Ed.2d at 412 (Harlan, J., concurring and dissenting). This form of prospective rulemaking which the Court adopts today awards vindication of personal rights only to the winner of a race to the courthouse. This approach has no place in constitutional adjudication. “Too many irrelevant considerations, including the common cold, bear upon the rate of progress of a case through the judicial system.” Schaefer, “The Control of ‘Sunbursts’: Techniques of Prospective Overruling,” 42 N.Y.U.L.Rev. 631, 645 (1967). The defendant in this case should not be deprived of the constitutional protection by the fortuitous event *571 that Prouse was decided while this case was still pending direct appellate review. The possible denial of relief from illegal imprisonment “on the basis of an arbitrary date raises a grave question of equal protection. If those whose cases were pending were reliably found guilty and hence did not deserve relief, the inequity remains that a few among them nonetheless did receive relief.” Traynor, “Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility,” 28 Hast.L.J. 533, 559 (1977). There is thus a glaring inequity in affording relief to defendant Prouse, but denying relief to similarly situated defendants including the defendant before us who had not yet exhausted all avenues of direct review on the date that Prouse was decided.

In the recent case of State v. Czachor, 82 N.J. 392, 413 A.2d 593 (1980), Justice Handler, writing for the Court, implicitly recognized this basic inequity by deciding to give limited retroactive effect to the new “Allen charge” rule announced in that case. The “new” rule applied to all cases pending direct review on the date of the Czachor decision. Both the Czachor rule governing Allen-type charges and the exclusionary rule are based on ” ‘standards for criminal justice’ which are designed to protect fundamental constitutional rights.” Id. at 411, 413 A.2d at 602 (Pashman, J., concurring). If concerns for fairness and judicial integrity moved the Court to require that the rule in Czachor be given limited retroactive effect, then I fail to understand why those concerns do not operate in this case. [FN10]

FN10. Czachor is distinguishable from the exclusionary rule setting because that case places the factual accuracy of past jury verdicts in question. This difference, however, “would not mandate that only prospective effect be given to exclusionary rule decisions. If anything, it might require giving complete retroactive effect to cases such as (Czachor ).” State v. Czachor, 82 N.J. at 412, 413 A.2d at 602-603 (Pashman, J., concurring); see also id. at 411, 413 A.2d at 602.

**979 *572 There are other compelling justifications for applying “new” constitutional rules to cases pending direct review. As Justice Harlan noted:

Refusal to apply new constitutional rules to all cases arising on direct review may well substantially deter those whose financial resources are barely sufficient to withstand the costs of litigating to this Court, or attorneys who are willing to make sacrifices to perform their professional obligation in its broadest sense, from asserting rights bottomed on constitutional interpretations different from those currently prevailing in this Court. More importantly, it tends to cut this Court loose from the force of precedent, allowing us to restructure artificially those expectations legitimately created by extant law and thereby mitigate the practical force of stare decisis, * * * a force which ought properly to bear on the judicial resolution of any legal problem. * * *

* * * I continue to believe that a proper perception of our duties as a court of law, charged with applying the Constitution to resolve every legal dispute within our jurisdiction on direct review, mandates that we apply the law as it is at the time, not as it once was. (Mackey v. United States, 401 U.S. at 680-681, 91 S.Ct. at 1174 (Harlan, J., concurring and dissenting) (citations omitted))

Not only is applying the law “as it is” compelled by “the imperative of judicial integrity,” but anything else is inconsistent with simple justice.


Because “State Constitutions * * * are a font of individual liberties, their protections often extending beyond those required by the (United States) Supreme Court’s interpretation of federal law,” Brennan, “State Constitutions and the Protection of Individual Rights,” 90 Harv.L.Rev. 489, 491 (1977); see, e. g., State v. Baker, 81 N.J. 99, 112, 405 A.2d 368 (1979); Oakwood at Madison Inc. v. Tp. of Madison, 72 N.J. 481, 495 n. 3, 371 A.2d 1192 (1977); State v. Johnson, 68 N.J. 349, 353, 346 A.2d 66 (1975), the Court should have at least discussed the issue of random police stops under our State Constitution as well as under the Fourth Amendment. I would hold that random police stops are forbidden by *573 N.J.Const. (1947), Art. I, par. 7, at least to the extent they are forbidden under the Fourth Amendment as interpreted in Prouse, and would give limited effect to this new ruling.


I believe that the only approach to retroactivity which comports with the judicial function is to apply our best understanding of the law to all cases which come before us. This requires that we apply “new” constitutional decisions in the exclusionary rule context to all cases pending direct review on the date when the “new” rule is announced. As Justice Harlan stated:

If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. * * * In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation. We apply and definitively interpret the Constitution, under this view of our role, not because we are bound to, but only because we occasionally deem it appropriate, useful, or wise. That sort of choice may permissibly be made by a legislature or a council of revision, but not by a court of law. (Mackey v. United States, 401 U.S. at 679, 91 S.Ct. at 1173, 28 L.Ed.2d at 413 (Harlan, J., concurring and dissenting))

Even if a rule forbidding random stops under N.J.Const. (1947), Art. I, par. 7, which should have been announced today, is not given limited retroactive effect, that State constitutional rule should nonetheless apply **980 to this case. This would be so because even “new” constitutional rules are generally applied to the case in which that rule is first announced. See Stovall v. Denno, 388 U.S. at 301, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206.

For the foregoing reasons, I believe that the judgment of the Appellate Division, reversing the conviction, should be affirmed.