State v. Malave
| Decision Date | 12 March 1974 |
| Citation | 316 A.2d 706,127 N.J.Super. 151 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Felix MALAVE, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Dante P. Mongiardo, Asst. Pros., for plaintiff-appellant (Joseph D. J. Gourley, Passaic County Prosecutor, attorney).
Robert J. Galluccio, Paterson, for defendant-respondent (Goodman & Rothenberg, Paterson, attorneys).
Before Judges CONFORD, MEANOR and BOTTER.
The opinion of the court was delivered by
MEANOR, J.A.D.
The State appeals, pursuant to leave, from an order granting defendant's motion to suppress.
A search warrant was issued authorizing a search of:
* * * the premises of 851 Madison Ave 3rd floor and all parts connected thereto. Plus a Puerto Rican male in his forties about 5 6 in height medium build who lives at said address.
The warrant also provided for the seizure of various named items of gambling paraphernalia. It had been issued on the affidavit of Detective Don Trifari of the Paterson Police Department. His affidavit recited that information had been received from a reliable confidential informant that a Puerto Rican man residing at 851 Madison Avenue, third floor, was picking up numbers bets from individuals and stores along Park Avenue and Market Street and was taking the slips to his residence at 851 Madison Avenue. On April 27, 1973 the informer met Trifari and pointed out the suspect to him. The detective conducted a surveillance of the suspect on that day and the next, observing activity clearly sufficient to lead to a reasonable belief that the suspect was taking bets on the street and in stores. At the conclusion of the surveillance on April 27 Trifari saw the suspect enter 851 Madison Avenue.
The warrant was issued May 2, 1973 and executed that day by Trifari. The suspect was searched and arrested on the street a considerable distance from 851 Madison Avenue. No suspicious activity was observed by Trifari on May 2 before execution of the warrant. At the time of arrest '2 slips with numbers' were found on his person. A search of 851 Madison Avenue revealed nothing incriminatory, and it is established that defendant did not live there and never had.
Warrants to search the person are comparatively rare, probably because most searches of individuals take place as incident to arrest. Nonetheless, it is established that a warrant may issue to search a person as well as a place. See R. 3:5--3 and State v. Masco, 103 N.J.Super. 277, 281, 247 A.2d 136 (App.Div.1968).
The Defendant argues, and the trial court held, that the warrant authorized the search of a person only at or near 851 Madison Avenue and not at some other location. We believe, on the other hand, that the warrant authorized two independent searches--one of a person and the other of a place. We see no reason why a warrant to search a person must specify the place where he is to be searched. See Dow v. State, 207 Md. 80, 113 A.2d 423, 49 A.L.R.2d 1205 (Ct.App.1955).
The sufficiency of the description of the person to be searched contained in the affidavit is attacked. It seems to have been assumed below that defendant was in fact the person Trifair observed during his twoday surveillance, but there was no express evidence on the point. It was stipulated at oral argument, however, that Trifair, if asked, would testify that defendant was in fact the individual pointed out to him by the informer.
Obviously the description of defendant in the warrant would fit a large number of people in Paterson, New Jersey. A description of a person to be searched should, of...
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...restricted to the particular premises described. Dow v. Maryland, Supra, 113 A.2d at 425. In the recent case of State v. Malave, 127 N.J.Super. 151, 316 A.2d 706, 707 (1974), the warrant under consideration authorized a search the premises of 851 Madison Ave 3rd floor and all parts connecte......
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