State v. Macri

• Decision Date: 19 February 1962
• Docket Number: 1850,Nos. 1849,s. 1849
• Citation: 178 A.2d 383,72 N.J.Super. 511
• Parties: The STATE of New Jersey, Plaintiff, v. Nicholas MACRI and Jerry Racaniello, Defendants. Indictments
• Court: New Jersey Superior Court

Page 511

72 N.J.Super. 511

178 A.2d 383

The STATE of New Jersey, Plaintiff, v. Nicholas MACRI and Jerry Racaniello, Defendants.

Indictments Nos. 1849, 1850.

Superior Court of New Jersey, Law Division Criminal.

Decided Feb. 19, 1962.

Charles C. Carella, Asst. Pros., Newark, for plaintiff (Brendan T. Byrne, County Pros. of Essex County, Newark, attorney).

Max Mehler, Newark, attorney for defendant Macri.

Saul C. Schutzman, Newark, attorney for defendant Racaniello.

CRANE, J.C.C. (temporarily assigned).

On December 21, 1960 defendants Macri and Racaniello were in an apartment on Scotland Road in Orange, New Jersey, belonging to one Thomas Schillizzi. Detectives from the Essex County Prosecutor's Office, armed with a search warrant, knocked on the door, announcing that they had a package for delivery. When defendant Macri told them to leave the package in front of the door, the detective forced entry and searched the apartment, finding rundown sheets and other paraphernalia pertaining to bookmaking.

Two indictments have been returned against the defendants: one charges bookmaking, in violation of N.J.S. 2A:112--3, N.J.S.A., the other a conspiracy to violate the bookmaking statute. Defendants have moved to suppress the evidence seized.

The ground upon which it is urged that the seized articles should be suppressed is the claim that the search warrant was void because it was issued upon the basis of an affidavit containing insufficient facts on which to base a finding of probable cause.

The affidavit upon the basis of which the search warrant was issued reads as follows:

'STATE OF NEW JERSEY COUNTY OF ESSEX:SS.

Peter J. Kenny, a Lieutenant of Detectives attached to the Prosecutor's Office in the County of Essex, being duly sworn according to law upon his oath deposes and says that through information received from a law enforcement officer and investigation conducted by him, he has just and reasonable cause to suspect and believe and does suspect and believe that the following goods and property, to wit: slips, papers, records, memoranda, sheets and paraphernalia, used in connection with the crime of Bookmaking are concealed in the premises of Thomas Schillizzi known and designated as No. 191 Scotland Rd., in the City of Orange, Essex County, New Jersey; and that he further has just and reasonable cause to suspect and believe and does suspect and believe that the said property is being used in connection with a violation of law commonly known as Bookmaking contrary to the statute in such case made and provided.

He, therefore, prays that a warrant be issued and said premises be entered and searched.

Peter J. Kenny'

The Fourth Amendment of the United States Constitution and the New Jersey Constitution, Article 1, paragraph 7, provide, in substantially identical language, that search warrants shall issue only upon probable cause supported by oath or affirmation.

It is conceded by the prosecutor that the Fourth Amendment has been interpreted by the federal courts as requiring the issuing magistrate to make a finding of probable cause. See Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933); Baysden v. United States, 271 F.2d 325 (4 Cir. 1959). Nevertheless, it is argued that the courts of New Jersey are not bound to follow such cases and that the standard established under the New Jersey Constitution is different.

The principal case cited by the State is Application of Berlin, 19 N.J. 522, 117 A.2d 610 (1955). This case, however, is not authority for the proposition that a warrant may properly be issued upon the basis of an affidavit containing merely conclusory statements. Justice Wachenfeld pointed out, at page 526, 117 A.2d 610, that the affidavit recited all of the officer's personal observations over an extended period of time of the premises sought to be searched. The opinion specifically held that the facts submitted were sufficient and commented, at 19 N.J., at p. 527, 117 A.2d at p. 612 that,

'If the facts submitted in the instant case were not sufficient cause for granting a search warrant, such warrants would become obsolete for failure of usage.'

Clearly, in mentioning 'facts submitted,' the Supreme Court had reference to facts submitted in the affidavit, as contrasted with facts existing solely within the mind of the officer. The opinion of the County Court bears this out. In re 301--317 Clinton Avenue, 35 N.J.Super. 136, at page 140, 113 A.2d 208, at page 211 (Cty.Ct.1955), wherein it was stated that

'The Affidavit in the instant case clearly established circumstances from which it might reasonably be concluded upon the information and belief of the affiant that the lottery law was being violated in the premises in question.' (Emphasis supplied)

Examination of the contends of the affidavit filed in the Berlin case indicates that it contained a detailed factual statement of the detective's investigation and observations.

'STATE OF NEW JERSEY, COUNTY OF ESSEX. SS.:

'William F. Beegle, being of full age and duly sworn according to law, upon his oath deposes and says:

'I am a detective of the New Jersey State Police. I have been assigned to investigate matters pertaining to the conduct of an unlawful lottery business in Essex County, New Jersey and elsewhere in New Jersey.

In the course of my investigation I have observed premises known as 301--317 Clinton Avenue, City of Newark, almost daily from October 6, 1954 to the present time, and in particular rooms 1 and 2 situated on the second floor of that building. This building is a commercial building and used for business purposes. The tenant of rooms 1 and 2 is not listed on the building directory.

Almost every day, with the exception of Sundays, I observed a number of men in room 201. I was able to identify the men I saw and based on my investigation, and information and belief, many of them are connected with an unlawful lottery business being carried on in Essex County.

One of these is Harry Colston who is known as a collector or controller and from day to day I have seen him enter the building carrying paper bags and envelopes. I have followed Colston to various places in the City of Newark where lottery numbers are sold. Colston has no known legitimate occupation. Colston operates a 1954 Black Lincoln Capri which is in the name of his wife.

I have also seen other persons who are reputed to be connected with an unlawful lottery business in the aforesaid rooms. A person by the name of Irving Berlin has been seen by me in room 1 daily. He seems to be in charge. On a number of occasions I have seen him take a large stack of bills from his desk drawer and count it and hand it to persons whom I was not able to identify at the time. In the course of my investigation I found slips bearing lottery numbers which were torn in bits and which had apparently come from the afore-mentioned room. These lottery numbers were among papers that bore the name of Irving Berlin.

From my observations there appears to be no legitimate business carried on in the aforesaid rooms, or by the men who occupy them.

Based on my investigation, and on information and belief, the afore-mentioned persons are engaged in the business of conducting an unlawful lottery in Essex County, New Jersey. It is my belief that they are in possession of lottery slips and lottery paraphernalia, and that such paraphernalia will be found in rooms 1 and 2 of the aforesaid address.

William F. Beegle'

It has been held that 'The issuance of a warrant is in itself a finding by the magistrate that there is probable cause for its issuance * * *.' State v. Best, 8 N.J.Misc 271, 276; 150 A. 44, 47 (Q.Sess.1930). In the exercise of such a function there must be presented to the magistrate sufficient facts (whether based upon personal observation or reliable hearsay) from which The magistrate may properly make a finding of probable cause. The issue, therefore, is not whether the officer executing the affidavit was in possession of sufficient information to constitute probable cause, but whether sufficient facts were communicated to the magistrate by the officer under oath or affirmation. This is a plain requirement of both the United States and the New Jersey constitutional provisions. That it may not in some instances have been rigidly observed can only be explained by the prevalent opinion in New Jersey prior to the Mapp decision, infra, that relevant evidence illegally seized was nevertheless admissible. Eleuteri v. Richman, 26 N.J. 506, 141 A.2d 46 ...