State v. Racanelli
| Decision Date | 11 May 1962 |
| Docket Number | No. 802,802 |
| Parties | STATE of New Jersey, Plaintiff, v. Joseph A. RACANELLI, Defendant. Indictment . New Jersey |
| Court | New Jersey County Court |
Maurice McKeown, Asst. Pros., for plaintiff (Brendan T. Byrne, County Pros. of Essex County, attorney).
Thomas E. Weinstock, Newark, for defendant (Bendit & Weinstock, Newark, attorneys).
MATTHEWS, J.C.C.
This proceeding involves the application of Joseph A. Racanelli to suppress evidence obtained by members of the Newark police as the result of a search of his premises on October 13, 1961 pursuant to a warrant. The present application also requests that the warrant under the terms of which the search in question was conducted be quashed. As a result of the seizure of the evidence here sought to be suppressed, defendant was indicted for violation of N.J.S. 2A:112--3, N.J.S.A. in two counts.
The testimony adduced at the hearing indicated that on October 13, 1961 three detectives and a policewoman, all members of the Newark police, bearing a search warrant, forced their way into the apartment of Racanelli and thereupon seized a quantity of paper writing relating to bookmaking As a result of this, defendant was arrested and charged as aforementioned.
The main thrust of defendant's argument goes to the sufficiency of the facts disclosed to the magistrate issuing the search warrant upon which he determined that probable cause existed for the issuance of the warrant. It is claimed that nothing more than mere conclusion of the police officer seeking the warrant was offered to the magistrate, and that such cannot constitute probable cause within the constitutional meaning of that term for the issuance of a search warrant.
Based on the testimony taken at the hearing on the motions to suppress and quash, the following are the facts surrounding the issuance of the warrant: As a result of an informant's tip, police officers of the City of Newark, including Detective Robert J. Murphy, investigated a possible violation of the bookmaking laws allegedly being committed at 181 Eastern Parkway in the city. The investigation consisted in a surveillance of the premises on two occasions, at which times it was observed that suspect's motor vehicle was at home. In addition, on several occasions members of the gambling squad made telephone calls to the premises; each time a call was made, the telephone would ring one time and a man would answer. Detective Murphy, after determining on the basis of his experience with the gambling squad that the person answering the telephone was a bookmaker, prepared an affidavit as the basis for a search warrant reading as follows:
Detective Robert J. Murphy, Member of Newark Police Dept. Investigation Division, being duly sworn according to law upon his oath deposes and says that through information received from prior arrests, coupled with subsequent investigation and observation on 10/10/61 and 10/13/61, 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 2A:112--3 and Lottery 2A:121--3 are concealed in the premises of A. J. Racanelli known and designated as No. 181 Eastern Parkway 1st fl. left in the City of Newark, 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 2A:112--3 and Lottery 2A:121--3 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.
Sworn to and subscribed before me this 13th day of October, 1961
Notary Public of N.J.
MAGISTRATE, MUNICIPAL COURTS, COUNTY OF ESSEX, NEW JERSEY'
Upon completion of the affidavit, Mr. Murphy swore as to the truth of its contents before a lieutenant of the Newark Police Department who is also a notary public. He thereupon took the affidavit before a magistrate of the City of Newark, who was then sitting in municipal court. He approached the magistrate at side bar, presented the affidavit to him, and in doing so explained to the magistrate that he had received information from a previously reliable source that violations of the gambling laws were taking place on the premises; that on two occasions he had sat in front of the suspect's house and had observed that his motor vehicle was there; and that a number of telephone calls had been made to the telephone number listed for the premises, resulting each time in the telephone's being answer by a male voice after one ring. At no time was the detective sworn before the magistrate. Based on the information just indicated, the magistrate signed and issued a search warrant directing and permitting a search of the premises of 'A. J. Racanelli known and designated as No. 181 Eastern Parkway 1st fl. left in the City of Newark, Essex County, New Jersey.'
Both the Fourth Amendment of the Constitution of the United States and paragraph 7 of Article I of the New Jersey Constitution of 1947 provide, in guaranteeing the right of the people to be secure against unreasonable searches and seizures, that no search warrant shall issue except upon probable cause, supported by oath or affirmation.
It is elementary, accordingly, that a search warrant cannot be regarded as being constitutionally valid unless it has been issued on such supporting facts, related to the issuing authority under oath or affirmation, as will give rise to probable cause for its issuance.
The intervening determination made by a dispassionate judicial mind is regarded as being one of the basic protections of the people against authoritarian harassment. In commenting upon this requirement of the Federal Constitution, Professor John Kaplan in an article entitled 'Search and Seizure: A No-Man's Land in the Criminal Law', 49 Calif.L.Rev. 474, 479 (August 1961), states:
'The third requirement--that the probable cause must be determined by a magistrate or a United States Commissioner before the search is undertaken--is basic to the entire concept of the search warrant. The policy determination made in the fourth amendment demands that, except in certain very restricted circumstances, the police officers engaged in the
The requirements found in both the Fourth Amendment of the United States Constitution and the 7th paragraph of the First Article of the New Jersey Constitution arose because of events which transpired in our history that are well known. One need only recall the practice in colonial days when the Crown issued writs of assistance and general search warrants under which the settlers in the new world were subjected to oppressive disturbances by government officials under the guise of efficient administration of the law. In Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), the Supreme Court recently reviewed and commented upon the historical background of the Fourth Amendment. In the course of its discussion, the court stated:
'The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of 'probable cause' before a magistrate was required. * * *
* * * And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even 'strong reason to suspect' was not adequate to support a warrant for arrest. And that principle has survived to this day.'
In United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932), Justice Butler in his opinion for the court emphasized the wisdom of placing the responsibility for issuing search warrants into judicial hands with the following language:
Similar statements as to the requirement of the intervention of the independent judicial mind...
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