State v. Carluccio

• Decision Date: 29 July 1971
• Citation: 280 A.2d 853,116 N.J.Super. 49
• Parties: STATE of New Jersey, Plaintiff, v. William S. CARLUCCIO et al., Defendants. (Criminal), New Jersey
• Court: New Jersey County Court

Page 49

116 N.J.Super. 49

280 A.2d 853

STATE of New Jersey, Plaintiff, v. William S. CARLUCCIO et al., Defendants.

Hudson County Court,

Law Division (Criminal), New Jersey.

July 29, 1971.

Edwin H. Stern, First Asst. Prosecutor, and Edward T. O'Connor, Jr., Asst. Prosecutor, for plaintiff (Geoffrey Gaulkin, Hudson County Prosecutor, attorney).

Dennis D. McAlvey, for defendant Carluccio.

John P. Russell, Jersey City, for defendant Laffman.

Elmer J. Herrmann, Jr., Newark, for defendant De Christoforo.

BOTTER, J.S.C. (temporarily assigned).

On this motion to suppress evidence I advised counsel at oral argument that I would grant defendants' request to cross-examine the detective upon whose affidavit search warrants issued. The prosecutor asserts that such a hearing cannot be held, but that probable cause must be judged by the affidavit alone. Since this issue has not been decided in this State ¹ or by the United States Supreme Court, ² I have adjourned the proceedings to give the prosecutor an opportunity to seek leave to appeal from my order.

Two search warrants were issued by a Superior Court judge based upon the affidavit of a detective of the New Jersey State Police Organized Crime Task Force Bureau. One warrant authorized the search of a specific one-story house in West New York, New Jersey, and persons on the premises; the other authorized the search of an automobile and an unnamed but described person previously seen operating the auto in the vicinity of the premises. The raid, seeking evidence and paraphernalia pertaining to illegal lottery and bookmaking operations, was apparently successful and defendants were indicted for the suspected crimes.

The detective's affidavit recites in part that:

I, the deponent * * * did receive information from a reliable informant, whose information in the past has proven to be reliable, and which did result in gambling arrests. Said informer did advise the deponent that over telephone number 867--3138 a male who answers said telephone by saying 'Willie' is conducting a gambling operation over said telephone, namely bookmaking and/or lottery, and informer having advised the deponent that he had placed illegal gambling wagers to 'Willie' over said telephone.

The affidavit also recites the results of a surveillance of the house in which the telephone was located. The surveillance was on October 3, 6, 7 and 8, 1969. This recital describes comings and goings of unnamed persons between 10:45 A.M. at the earliest and 7:50 P.M. at the latest on the days mentioned. For example, on October 3 a male left the side door of a nearby tavern, the Laffman Bar, at 10:45 A.M. and entered the house carrying 'a yellow pad and newspaper.' Shortly thereafter a second male arrived carrying 'a brown paper bag,' and then a third male came out of the side door of the Laffman Bar and entered the house. This third male then left shortly thereafter and from that time on made six round trips between the tavern and the house, staying in each place for varying intervals. On one trip he placed 'slips of white paper into a slot on the door.' On two other trips he delivered a small bag and a white envelope to the house. On the afternoon of October 3 a fourth man arrived in a certain vehicle and entered the house carrying a brown paper bag and then went to the tavern. He drove off later and again returned to the house. Other persons, not described, entered the house at 7:30 P.M.

The first two men who entered the house on October 3 entered again on October 6 at 10:45 A.M., carrying newspapers. At 11:00 A.M. the third male again left the nearby tavern and entered the house. On these occasions each man opened the door with his own key. Nothing else was observed on October 6. On October 7 similar but fewer comings and goings were observed as on October 3, the most suspicious single act being the delivery of a white envelope by the 'third man' from the tavern to the house at 2:15 P.M. On the last day, October 8, similar comings and goings were observed, without any slips, bags or envelopes recorded, except that the first two men arrived carrying a newspaper. On the basis of these observations and the information supplied by the 'reliable informant' the detective concluded that illegal gambling operations were being conducted at the house and over the telephone there, namely, 'bookmaking and/or lottery.'

On the motion to suppress, defendants urged that the affidavit on its face was insufficient to establish probable cause. ³ At oral argument this was rejected. The hearsay report of the 'reliable informer,' combined with the surveillance, made out a case for the warrant, although neither the hearsay nor the surveillance was sufficient by itself. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1962); State v. Mercurio, 113 N.J.Super. 113, 273 A.2d 65 (App.Div.1970), aff'd o.b. 57 N.J. 367, 273 A.2d 24 (1971); State v. Mack, 114 N.J.Super. 513, 277 A.2d 410 (App.Div.1971). See also State v. Kasabucki, 52 N.J. 110, 244 A.2d 101 (1968). Cf. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Thereupon defendants requested permission to examine the detective (who was present in court at the time of the motion) to test his credibility solely as to the report of the secret informer. That the informer's identity is entitled to complete protection in the course of the inquiry was conceded by defendants. State v. Burnett, 42 N.J. 377, 201 A.2d 39 (1964); McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1966); N.J.S.A. 2A:84A--28.

I

The Fourth Amendment and the New Jersey Constitution (1947), Art. I, par. 7, in almost identical language guarantee the freedom of all people from unreasonable searches and seizures. 'No warrants shall issue, but upon probable cause supported by oath or affirmation * * *,' is a covenant exacted to protect the people against arbitrary transgression by government officers. Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1885). Abusive writs of assistance, infringing upon privacy, 'inaugurated the resistance of the colonies to the oppressions of the mother country.' Ibid. This constitutional safeguard is of greater importance today. ⁴ Today the threat of search by invisible intrusion, by electronic surveillance--bugging and wiretapping and intercepting--hangs over every citizen like a cloud. ⁵ Although the rules in search and seizure cases draw criticism day by day, even in opinions by our most esteemed judges, ⁶ in my view a diminution of the Fourth Amendment will cost our citizens the price of liberty that no increase in the number of convictions is worth. The answer to unlawful searches is not to sanction them because some police officers are recalcitrant. The answer is to end unlawful searches. At least we must strive for this goal. We have not abandoned the criminal laws because they have failed to deter all crime.

Our system of justice is not disgraced by the acquittal of a defendant because illegally seized evidence cannot be used against him. I believe our system is ennobled by this rule. Judges uplift our system to the degree in which constitutional rights are enforced in a full and sympathetic spirit. Nor is the public uniformly dismayed by the discharge of an accused when the law requires that result. Trial courts see this often enough when juries acquit despite a mass of evidence lawfully seized. Juries acquitted defendants in 43% Of 49 illegal gambling cases studied in the mid-1950's. Kalven & Zeisel, The American Jury, 67, 74 (1968). This was before the adoption of the rule that no comment or inference of guilt can be based upon defendant's failure to testify in his own defense, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and before the exclusionary rule of Mapp v. Ohio, Infra, was applied to the states. Juries show a high rate of leniency as compared with the willingness of judges to convict, particularly in gambling cases, and it is in these cases that a high proportion of motions to suppress are now made. Oaks, Infra, 37 U.Chi.L.Rev. at 681.

Juries are not dismayed by the right of a man to be silent, to be presumed innocent, by the need for proof beyond a reasonable doubt.

Studies of 3576 criminal cases show that, where judges disagreed with the verdict of juries, judges thought convictions were warranted in roughly 50% Of the cases in which juries acquitted defendants. Kalven & Zeisel, op. cit. at 58. Of course, the constitutional rights of an accused make it more difficult to convict him. However, juries acquit for many reasons unrelated to evidence legally seized. To some extent, in gambling cases for example, they acquit because the State has legalized betting at tracks and, now, with the New Jersey Lottery, all over the State. There is some evidence that a jury will acquit 'in protest against a police or prosecution practice that it considers improper.' Kalven & Zeisel, op. cit. at 319. Thus, the public may not be agonized by the suppression of evidence seized illegally when the guilt of an accused has not yet been established, and might not be even if the evidence could be used. The assumption that we are always discharging people who would otherwise be convicted is not valid. The foregoing statistics belie the charge that crime in America, bad as it is, is caused by judges who are too soft. This accusation should not stampede us into surrendering our constitutional liberties. If more convictions are wanted, or less crime, many steps can be taken without abandoning the Bill of Rights.

The right to be secure from unreasonable searches and seizure must prevail even at the cost of allowing some crimes to go unpunished. Mr. Justice Jackson, dissenting in Brinegar v. United States, 338 U.S. 160,...