
    STATE OF NEW JERSEY, RESPONDENT, v. OSCAR ORTIZ VALENTIN, APPELLANT.
    Argued September 25, 1961
    Decided November 6, 1961.
    
      
      Mr. William A. O'Brien, Assistant Prosecutor, argued the cause for the respondent (Mr. Lawrence A. Whipple, Hudson County Prosecutor, attorney).
    
      Mr. Edward F. Farrell argued the cause for the appellant.
   Pee Curiam.

Defendant, Oscar Yalentin, was indicted on a charge of carrying a shotgun concealed in his automobile, without having obtained a permit to do so, in violation of N. J. 8. 2A :151—41.

Prior to trial, Yalentin moved in the County Court to suppress the evidence (the shotgun) on the ground that it was taken from his automobile by the police officers of the Town of Harrison without a search warrant, and as the result of an unreasonable search and seizure, in violation of the Fourth Amendment of the United States Constitution and of Article I, paragraph 7, of the New Jersey Constitution. In support of the application, defendant presented to the court a partial transcript of testimony given by the police officers in the United States District Court in a criminal proceeding there, arising out of possession of the shotgun at the time in question. The County Prosecutor did not submit any proof by affidavit or otherwise respecting the circumstances surrounding the search and seizure. He followed that course relying on the long-established rule in Hew Jersey, the then latest example of which appeared in Eleuteri v. Richman, 26 N. J. 506 (1958). The reliance seemed justified because the trial court denied the motion and the Appellate Division affirmed.

We granted leave to appeal and before argument the United States Supreme Court handed down its decision in Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The opinion declared that the interrelationship of the Fourth Amendment and the due process clause of the Fourteenth Amendment of the United States Constitution guaranteeing to individuals the right of privacy free from unreasonable state intrusion, renders evidence obtained by unreasonable search and seizure inadmissible in a state criminal prosecution based thereon. As the result of this new doctrine, obviously, if the shotgun involved here was secured through an unreasonable search and seizure, defendant’s application to bar its introduction as evidence against him is sound and must be granted. But whether a particular search and seizure are unreasonable depends upon the circumstances under which the police officers acted. That problem cannot be determined on the record now before us which the decision in Mapp has rendered inadequate. Undoubtedly, if Mapp had been decided prior to the motion in the County Court, the Prosecutor would have presented whatever proof he may have had as to the nature of the search and seizure. As indicated at the inception of the argument of the case, we do not believe that the Prosecutor should be penalized for relying on what appeared to be the law of onr State at the time. Eor that reason, the matter will be remanded to the County Court to permit both parties to introduce all relevant proof on the new issue generated by Mapp.

Reconsideration of the motion in the light of whatever proof is adduced, and the decision thereon, will represent breaking new ground in this State. Since the police officers had no search warrant, the basic question is: Was the search unreasonable under the circumstances? At present, New Jersey has no rule specifically regulating the practice in these cases, such as Rule 41 of the Federal Buies of Criminal Procedure, 18 U. S. C. A. Accordingly, it is important for our courts to study the Eederal decisions with Bule 41 in mind, as well as the provisions of the constitutions of both sovereignties. But the extent to which the Eederal cases, in the various District and Circuit Courts of Appeal, ought to be regarded as having established a path to be followed, is a matter for judgment and evolutionary experience. See “Search and Seizure—A No-Man’s Land in the Criminal Law,” 49 Calif. L. Rev. No. 3 (Aug. 1961); “Search and Seizure in the Supreme Court,” 28 U. Chi. L. Rev. 664 (1961).

After decision on the remand, if either party pursues a further appeal, on the filing of notice of appeal in the Superior Court, an immediate application may be made to this court for certification.

For remandment—Chief Justice Weiittraub, and Justices Jacobs, Eraitcis, Proctor, Hall, Schettino and Haneman—7.

For reversal—None.  