State v. Kuznitz

• Decision Date: 03 March 1969
• Citation: 105 N.J.Super. 33,250 A.2d 802
• Parties: The STATE of New Jersey v. Michael KUZNITZ, Defendant. (Criminal), New Jersey
• Court: New Jersey County Court

Page 33

105 N.J.Super. 33

250 A.2d 802

The STATE of New Jersey v. Michael KUZNITZ, Defendant.

Union County Court, Law Division (Criminal), New Jersey.

March 3, 1969.

John H. Stamler, Asst. Prosecutor, for the state (Leo Kaplowitz, Prosecutor of Union County, attorney).

Barry M. Epstein, Elizabeth, for defendant (Reibel, Isaac & Tannenbaum, Elizabeth, attorneys).

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

Defendant moves to suppress evidence seized under a warrant issued out of the Union County Court.

The evidence sought to be suppressed was seized in Apartment 2--D, 30 East Elm Street, and in defendant's home at 353 Miltonia Street, both in Linden, New Jersey. The warrant also permitted the search of three cars registered in the name Edna Kuznitz, 353 Miltonia Street, Linden, New Jersey, two of which were seen in use by defendant in travelling a few blocks from his home to the apartment. It appeared at the oral argument that nothing of evidential value was found or seized in any of the automobiles. Part of the items seized were taken at the apartment and part in the house of Miltonia Street.

Defendant Michael Kuznitz has been indicted for bookmaking and maintaining a gambling resort at Apartment 2--D, 30 East Elm Street, Linden, New Jersey.

The affidavit of Union County Prosecutor's Detective E. H. Haines, upon the basis of which the search warrant was issued, recites his qualifications as an expert in the detection of gambling law violations. It states that defendant was convicted for bookmaking in Linden in 1953 and again in 1963. General information that Kuznitz had resumed operations came to the attention of Haines, followed by specific information from a known reliable informant to the chief of county detectives on October 31, 1967 that Kuznitz was taking sports bets and some details of his practice. On November 10, 1967 the same informant stated that Kuznitz was using a white car with plates numbered 427 when making his rounds for collections and pay-offs.

Haines ascertained from the Division of Motor Vehicles that a white Buick bearing registration IAU--427, and a black Rambler bearing registration EVK--356, were registered in the name of Edna Kuznitz, 353 Miltonia Street, Linden, New Jersey, defendant's home. The detective observed these two cars parked at that address.

On Sunday, May 5, 1968, beginning at 10:30 A.M., Haines watched defendant's home. At 11:15 A.M. defendant came out and left in the Rambler. He went one block, parked, got out, looked around the area, walked hurriedly into a three-car garage at 308 Miltonia Street, and got into a gray Chrysler later discovered to be registered in the name of Edna Kuznitz at defendant's home address. He drove to a store, bought a newspaper, drove to 30 East Elm Street and entered the apartment house at that address at 11:25 A.M. This conduct fitted with information received from the informant as to defendant's practice.

On May 7, 1968 Haines watched 30 Elm Street and at 5:30 P.M. saw defendant arrive in the gray Chrysler, park and enter the apartment house. He watched defendant go up the stairway to the second floor and enter the center apartment on the left. At 6:15 P.M. on the same day Haines returned to the apartment building and found that the apartment Kuznitz had entered bore number 2--D and the name 'Mrs. Emma Grey.' While in the hall he overheard a loud male voice in the apartment apparently taking telephone calls, receiving bets on sporting events, and giving out the odds on baseball games to be played that evening. At 8:10 P.M. defendant left the apartment house and returned to his home in the gray Chrysler.

On May 9 the search warrant was applied for and issued by Judge DeVita. It was executed at 7:30 P.M. on the same day.

The motion to suppress is based on three grounds, namely:

1. A material part of the evidence presented on the application for the search warrant was the result of Detective Haines's listening outside of the door of Apartment 2--D. Defendant contends that this was impermissible eavesdropping in violation of defendant's Fourth Amendment constitutional right to be free from unreasonable searches and seizures, and that all fruits thereof should therefore be suppressed.

2. The evidence presented to obtain the search warrant was insufficient to connect defendant's home or the automobiles with the bookmaking operation and did not justify the issuance of a warrant to search these places.

3. The officers executing the search warrant at the apartment did not announce their authority or purpose before 'hitting' the door or attempting to break in. It is contended that the warrant was therefore illegally executed and the results of the search of the apartment should be suppressed.

No evidence was presented on this motion. Aside from the matters appearing in the application for the search warrant, the only facts presented are an offer by the prosecutor in his brief to stipulate that 'no notification as to the identity and purpose were given Before the officers began 'hitting' the door; however, during the five minutes the officers worked on the door--to no avail--they were shouting 'Police' and 'Open up"; some photographs showing damage to the door of the apartment at 30 East Elm Street in Linden, and some showing a barricade of two-by-fours and two-by-twos on the inside of that door preventing entry. It is orally stated that the officers never succeeded in forcing their way into the apartment but were eventually admitted by defendant.

Defendant's first contention raises the question whether eavesdropping by the unaided use of the human ear outside of premises occupied by a suspect constitutes an illegal search and seizure under Berger v. State of New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and requires suppression of the evidence thus obtained. No case has been cited and I know of none in which merely listening by a law enforcement officer without the aid of a device extending his hearing into private quarters has been held to violate constitutional rights. The Congress of the United States, in passing the 1968 statute governing wire interception and interception of oral communications, Public Law 90--351, § 801 and § 802, dealt only with interception by 'electronic, mechanical or other device.' The New Jersey Legislature has recently adopted chapter 409 of the Laws of 1968 (N.J.S.2A:156A, N.J.S.A.) similarly limited to regulating the use of electronic, mechanical or other devices for eavesdropping. The Legislature was aided by a model statute prepared by Professor G. Robert Blakey of the Notre Dame University Law School which was similarly limited. It is safe to say that if either of these legislative bodies and their learned advisors had read the above-cited decisions of the United States Supreme Court as referring to overhearing of oral communications by the unaided human ear, the statutes would have dealt with this subject also. I am satisfied that, in general, eavesdropping by law enforcement officers without the use of any electrical, mechanical or other device, and without wiretapping, is not a search or seizure requiring the issuance of a warrant, at least in this case in which the officer was in a public hallway where anyone who listened could hear the communication. Cf. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); State v. Smith, 37 N.J. 481, 181 A.2d 761 (1962).

However, as to both the first and second reasons advanced for suppressing all or part of the material seized, I am bound by State v. Kasabucki, 52 N.J. 110, 244 A.2d 101 (1968), in which the Supreme Court said:

'* * * Once the judge has made a finding of probable cause on the proof submitted and issued the search warrant, a reviewing court, especially a trial court, should pay substantial deference to his determination. In fact, another trial judge of equal jurisdiction should regard as binding the decision of his brother that probable cause had been sufficiently shown to support a warrant, unless there was clearly no justification for that conclusion * * *.' (at p. 117, 244 A.2d at p. 104)

In this case the warrant was issued by a judge of the county district court sitting in the Union County Court. I am sitting in the same court and exercising the same jurisdiction. Therefore, in compliance with the rule laid down by the Supreme Court, I treat the decision of the issuing judge binding to the effect that probable cause was shown for the issuance of the warrant in all its parts.

Defendant's third contention deals with the execution of the warrant and has not been passed upon by any other judge. Defendant contends that the attempt of the officers to enter the place in which he was allegedly conducting his bookmaking business without first announcing their authority and purpose in seeking entry renders invalid the search which they made pursuant to the warrant. In support of this contention he relies on Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), which in turn rests on Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958). No New Jersey authority is cited for defendant's proposition. No federal constitutional provision prescribes the manner of execution of search warrants.

In State v. Smith, 37 N.J. 481, 181 A.2d 761 (1962), detectives peering through a crack at the molding of a door saw defendant with a tourniquet around his arm and a hypodermic needle in his hand. Without a warrant and without demanding admittance or revealing their mission, they broke in, arrested defendant, and seized the narcotics paraphernalia. In considering whether the unannounced forced entry into defendant's apartment invalidated the subsequent arrest and seizure, the court said:

'* * * In Miller v. United States * * * it was held that an arrest was unlawful when the officers broke in...