State v. Laduca

• Decision Date: 11 October 1965
• Docket Number: No. A--1222,A--1222
• Citation: 214 A.2d 423,89 N.J.Super. 159
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Sam LaDUCA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 159

89 N.J.Super. 159

214 A.2d 423

STATE of New Jersey, Plaintiff-Respondent, v. Sam LaDUCA, Defendant-Appellant.

No. A--1222.

Superior Court of New Jersey Appellate Division.

Argued Sept. 13, 1965.

Decided Oct. 11, 1965.

Jerome A. Vogel, Paterson, for appellant (Jeffer, Walter & Tierney, Paterson, attorneys).

Archibald Kreiger, Asst. Prosecutor, for respondent (John G. Thevos, Passaic County Prosecutor, attorney).

Before Judges CONFORD, KILKENNY and LEONARD.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

Defendant appeals a conviction in the Passaic County Court after a jury trial on a charge of maintaining a gambling resort in violation of N.J.S. 2A:112--3, N.J.S.A.

The primary ground of appeal is the denial of defendant's pretrial motion to suppress certain evidence as having been obtained by the police as the result of an illegal search and seizure. A full factual exposition of the attendant circumstances was not had on the motion because the trial judge who heard it denied it, before the proofs were complete, on the ground that the defendant was without standing to raise the question. However, additional evidence filling out the factual picture on the search question was adduced during the trial (which was held before a different judge). Most of the relevant facts have been stated in defendant's brief, and the State's brief agrees that this court should now decide the issue on that set of facts, which is conceded to be accurately set forth therein. We proceed to do so, but supplementing the recital of facts with so much of that testimony of the State's witnesses as is undisputed.

The essential facts are these. Defendant LaDuca was the proprietor of a barber shop in Passaic. On July 2, 1962 a search warrant was issued to search the shop and its occupants on an affidavit by a State Police officer couched in purely conclusionary terms that certain bookmaking paraphernalia were believed to be 'located' therein. The insufficiency of the affidavit, and the consequent invalidity of the warrant, State v. Macri, 39 N.J. 250, 188 A.2d 389 (1963), are not challenged by the State. The warrant was delivered by the county prosecutor to county detectives Reiser and Saginario for execution. Armed therewith, they proceeded to the barber shop premises, Saginario entering the front door and Reiser the rear. They locked both doors to prevent anyone from leaving or entering the premises, and then, after showing the warrant to an employee barber then in charge, thoroughly searched the premises. Defendant was not in the shop at the time, but two patrons in addition to the employee were. These men were required to empty their pockets, but nothing incriminating was found by the detectives.

While the detectives were thus fruitlessly engaged, one Torrieri came to the shop and tried to gain entrance. Finding the door locked, he was about to turn away when Reiser opened the door and called him in. Reiser showed Torrieri the search warrant and asked him to empty his pockets. Torrieri complied and produced a betting slip together with seven dollar bills wrapped therein. Saginario then obtained Torrieri's signature on a written consent to search his car parked nearby. That search revealed a racing program and a duplicate of the slip which was produced from his pocket in the shop. During the trial Torrieri, called as a witness by the State, testified he had come to the shop on the occasion in question to 'place a bet with Sam' and that he had done so on a number of prior occasions.

The pretrial motion to suppress all the items of evidence mentioned above having been denied, they were all admitted in evidence against defendant during the trial.

We first deal with the ground of denial of the pretrial motion--lack of standing of defendant, owner of the premises where the illegal search was conducted, to complain of the seizure of property from another person. This was patently groundless. The search was aimed at defendant, and it was his privacy which was invaded. The warrant designated his shop. He therefore had standing to complain of the evidential use against him of anything obtained by the police as a result or in the course of that search. Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); and cf. State v. Bibbo, 83 N.J.Super. 36, 198 A.2d 810 (App.Div.1964). A defendant is entitled to suppression of evidence seized in an unlawful search if he has either a 'proprietary, possessory or participatory interest in the purloined or bludgeoned evidence, or, alternatively, In the place where it was found'. (Emphasis added). Maguire, Evidence of Guilt, p. 216 (1959); Jeffers v. United States, 88 U.S.App.D.C. 58 187 F.2d 498, 500 (1950), affirmed United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); State v. Wade, 89 N.J.Super. 139, 214 A.2d 411 (App.Div.1965).

The State also contends that since 'the search and seizure of the betting slips took place on the premises of the barber shop which is a public place by statute and the common law because members of the public had the right to enter, including the police,' therefore it follows that a seizure from Torrieri without a warrant is 'not a search within the protection of the Fourth Amendment which is limited to and protects invasion against the police from unreasonable searches and seizures in private homes and places.' The argument is completely without foundation.

It has never been held that a place of business of a private person or concern open to the public for purposes of doing business is beyond the protection of the Fourth Amendment, although the nature of a place of business as open to the public clearly is a factor in adjudging the reasonableness of an entry thereon by police officers. Private places of business, although open to such members of the public as had business with the owners, have repeatedly been held, or have been assumed without argument to the contrary, to be within the protection of the Fourth Amendment. Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). In United States v. Di Corvo, 37 F.2d 124, 132--133 (D.C.Conn.1927), it was well stated: 'The Fourth Amendment throws a mantle of protection around 'houses' generally--not merely dwelling houses. A person's office or place of business is quite as immune from search without a warrant as his kitchen or bedroom.'

In Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946), a majority of the court sustained the seizure without a warrant by federal officers of wartime gasoline ration coupons unlawfully possessed by defendant but only after it had been shown that purchase by the officers of gasoline from the proprietor without coupons at 'black market' prices gave them reasonable cause to believe that defendant was committing the crime of possession of ration coupons unlawfully acquired. The court reasoned that the coupons were by statute 'public property in the custody of a citizen' rather than 'private papers or documents' and that the officers had greater leeway in the choice of methods to reclaim that which was unlawfully possessed. It was emphasized that no general exploratory search was made and that defendant turned over to the agents the coupons and nothing else (id., at pp. 586, 592, 66 S.Ct., at pp. 1258, 1261).

The court enigmatically said, in sustaining the search resulting in the surrender by defendant of the coupons (id., at p. 593, 66 S.Ct. at p. 1261): 'The right of privacy of course remains. But, as we have said, the filling station was a place of business, not a private residence.' Mr. Justice Frankfurter vigorously dissented, particularly at the 'casual' intimation that the Fourth Amendment accords less protection to business offices than private residences (id., at p. 596, 66 S.Ct. at p. 1256).

We can agree with the State that a private business whose doors are open to the general public is also to be considered open to entry by the police for any proper purpose not violative of the owner's constitutional rights--e.g., patronizing the place or surveying it to promote law and order or to suppress a breach of the peace. One can go as far as Smith v. United States, 70 App.D.C. 255, 105 F.2d 778 (1939), and hold that if police suspect a barber shop to be a betting parlor they may enter the place through an open or unlocked door, just as any member of the public is privileged to do, and then, if without a previous search ordinarily requiring a warrant they observe the commission of a crime in the premises they may arrest the offender and as incidental thereto search as much of the place as is under the control of the arrestee to find and seize things used to carry on the unlawful enterprise. On its facts the Smith case holds no more than that. Nor do Fisher v. United States, 92...