State v. Kline
| Decision Date | 20 April 1964 |
| Docket Number | No. A--105,A--105 |
| Citation | 199 A.2d 650,42 N.J. 135 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Warren D. KLINE, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
On appeal from a judgment of the Superior Court, Appellate Division, where the following opinion was filed.
'Defendant was convicted of bookmaking, and he appeals. The sole ground of appeal is that the evidence upon which he was convicted was taken from his person, his home and his automobile by means of a search warrant issued without probable cause. No warrant had been issued for defendant's arrest at the time he was searched and the State does not contend that the search was incidental to an arrest.
The affidavit upon which the search warrant was issued was sworn to by a detective lieutenant. He stated that he had 'good reason to believe and does believe that upon the person of Warren Kline * * *,' in his home located in Warren Township, Somerset County, and in a 1959 Ford station wagon registered in his name, 'there has been and now is located certain property used as the means of committing a misdemeanor, in violation of * * * N.J.S. 2A:112--3, said property consisting of betting slips * * * and other gambling paraphernalia.' He said that the facts tending to establish * * * probable cause of deponent's belief * * * are as follows:
(a) Deponent is charged with conducting gambling investigations in this County and has held this subject suspect for a long period of time.
(b) Three individuals, wholly unrelated, have informed deponent that the subject named is engaged in a gambling enterprise. This information has been brought out over an extended period of time and the sources are wide spread and not connected in any manner. It would serve no good purpose to identify the informants since their information merely served as a basis for this investigation.
(c) Deponent has maintained a surveillance on the subject named since July 11, 1962, noting the following observations:
(1) Subject entered the Candy Carousel Lunch and News Stand, 314 Watchung Avenue, Plainfield, New Jersey between the hours of 11:10 and 11:40 A.M. on the following dates: July 11, 12, 13, 17, 18, 20, 23, 24 and 25, 1962 and emerged with a copy of the Armstrong Daily Sports News, commonly called a 'scratch sheet.' The subject never followed a route, following this action, toward any race track, but ultimately returned to his home.
(2) Following his acquisition of a scratch sheet, the subject entered a private residence at 685 West 4th Street, Plainfield, New Jersey, which is listed in the name of Earl S. Stevenson, being a colored residence in the heart of a colored neighborhood; the subject Kline, is a white male. The subject entered that residence between 11:20 and 11:45 A.M. on the following dates: July 11, 12, 13, 17, 18, 19, 20, 23, 24 and 25, 1962, and left from there between the hours of 11:55 A.M. and 1:10 P.M. on those dates.
(3) While the subject was in the Stevenson house on the dates mentioned, from four to twelve colored males and females entered the house from various cars and trucks, remaining in the house from a few minutes to 45 minutes, the majority of stops being of short duration.
(d) The subject named is not legitimately employed and maintains a pattern of activity which is peculiar to bookmaking; all of which indicates probable cause of deponent's belief that such grounds exist. * * *.
Based upon this affidavit, a search warrant was issued which authorized the search of defendant, his home and the automobile. The search took place at defendant's home.
A search warrant may not be issued to search a person or a place unless the magistrate is satisfied that there is probable cause to believe not only that what is sought is subject to seizure (R.R. 3:2A--2) but also that there is probable cause to believe that it is to be found on the person or in the place sought to be searched. Dumbra v. United States, 268 U.S. 435, 45 S.Ct. 546, 69 L.Ed. 1032 (1925); Lowrey v. United States, 161 F.2d 30, 33 (8 Cir. 1947), cert. denied 331 U.S. 849 (67 S.Ct. 1737, 91 L.Ed. 1858) (1947), petition for rehearing denied 332 U.S. 787 (68 S.Ct. 36, 92 L.Ed. 369) (1947). This affidavit did not set forth facts or circumstances sufficient to meet that test.
The only mention of defendant's home in the affidavit was that defendant 'ultimately returned' to it. No facts or circumstances were set forth in the affidavit which afforded reasonable grounds to believe that bookmaking was being carried on in the home, or that bookmaking paraphernalia were to be found there. There was nothing in the affidavit to justify a reasonable belief that defendant carried anything on his person or in the car which was...
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People v. Grossman
...incidental search. Thus an 'unrelated' search can never be justified. The eavesdropping orders must fall for that reason. (State v. Kline, 42 N.J. 135, 199 A.2d 650.) * * * * * I do not rest my decision on grounds (1) and (2) discussed under Part III. I prefer to rest it on the main constit......
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...failed to establish probable cause for a search of his apartment. See also Barker v. State, 241 So.2d 355 (Miss.1970); State v. Kline, 42 N.J. 135, 199 A.2d 650 (1964). Cf. People v. Brethauer, Colo., 482 P.2d 369 In light of the authorities cited, and for the reasons stated, we hold that t......
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State v. Harris
...United States v. Bell, 126 F.Supp. 612 (D.C.Dist.1955); United States v. Lucarz, 430 F.2d 1051 (10 Cir. 1970); State v. Kline, 42 N.J. 135, 199 A.2d 650 (1964); State v. Seefeldt, 51 N.J. 472, 242 A.2d 322 (1968). In view of the rule which mandates that this court pay substantial deferrence......