State v. Robinson

• Decision Date: 10 May 1962
• Docket Number: No. 680,680
• Citation: 181 A.2d 208,74 N.J.Super. 305
• Parties: The STATE of New Jersey, Plaintiff, v. Roosevelt ROBINSON and Josephine Robinson, Defendants. . New Jersey
• Court: New Jersey County Court

Page 305

74 N.J.Super. 305

181 A.2d 208

The STATE of New Jersey, Plaintiff, v. Roosevelt ROBINSON and Josephine Robinson, Defendants.

No. 680.

Essex County Court Law Division. New Jersey.

May 10, 1962.

John J. Gillies, Asst. Pros. of Essex County, for plaintiff (Brendan T. Byrne, Essex County Pros., attorney).

Herman W. Kapp, Newark, attorney, for defendant Roosevelt Robinson.

Robert Scherling, Newark, attorney, for defendant Josephine Robinson.

MASUCCI, J.C.C.

This is a motion by the defendants Roosevelt Robinson and his wife Josephine Robinson to suppress evidence.

Originally this motion was made by the defendant Roosevelt Robinson alone. However, at the hearing the parties stipulated that the defendant Josephine Robinson would join therein and the motion of Roosevelt Robinson would be treated as one on behalf of both defendants.

The evidence consists of lottery paraphernalia seized by police officers in the course of a search of the premises at 418 Bergen Street, Newark, New Jersey. The search was admittedly made without a search warrant. The defendants contend that the search was an unreasonable one and therefore that the fruits thereof must be suppressed in accordance with Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The circumstances surrounding the search are as follows: On July 23, 1960, at approximately 8:15 A.M., Newark police officers received information that a lottery business was being conducted at 418 Bergen Street, Newark, New Jersey. Three police officers, without procuring a search warrant, proceeded to that address and upon their arrival at approximately 9 A.M. knocked on the door and were admitted by the defendant's mother Mrs. Dunn. The officers testified that they identified themselves and that both Mrs. Dunn and the codefendant Mrs. Robinson told them it was all right to search the premises. Mrs. Dunn and Mrs. Robinson both deny that they consented to the search. The ensuing search produced the lottery paraphernalia which is sought to be suppressed.

At the hearing on this motion the defendant Roosevelt Robinson testified that he was separated from his wife, the codefendant herein, and rented an apartment in New York City, but still considered 418 Bergen Street, Newark, New Jersey, to be his residence and kept his clothes and tools at this Newark address.

The main issue is whether the search and seizure in the instant case are unreasonable.

The Fourth Amendment of the United States Constitution and Art. I, par. 7, of the 1947 New Jersey Constitution prohibit unreasonable searches and seizures. Our United States Supreme Court has repeatedly emphasized that the mandate of said amendment requires adherence to judicial processes. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). Only where the search is incidental to a valid arrest, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), or in 'exceptional circumstances,' Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), may an exemption lie from the requirement of a search warrant, and then the burden is on those seeking the exemption to show the need for it. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951).

In the instant case no search warrant was procured. It is not contended by the State that the search was incidental to an arrest, nor could such contention be made since the defendants were not placed under arrest until the premises were searched and the lottery slips seized. Nor has the State shown any exceptional circumstances to justify the absence of a search warrant. On the contrary, the facts adduced at the hearing preclude a determination that exceptional circumstances existed. There was no suspect fleeing or attempting to flee. The search was of permanent premises, not of a movable vehicle. No reason is offered for not obtaining a search warrant, except a possible inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons, and under these circumstances certainly are not enough to by-pass the constitutional requirement. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). See also McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

Accordingly, this court finds the search and seizure to be an unreasonable one within the prohibition of the Fourth Amendment of the United States Constitution and Art. I, par. 7, of the New Jersey Constitution.

Next to be considered is whether the defendants have legal status to attack the search and seizure as persons aggrieved thereby.

There is no question that the defendant Josephine Robinson has standing and belongs to the class for whose sake the constitutional protection is given. She was in unquestioned possession of the premises illegally searched. Such possession conferred standing upon her, and as such her constitutional rights of privacy were clearly invaded. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

The State claims that the defendant Josephine Robinson waived the right guaranteed by the Federal and State Constitutions, i.e. freedom from unreasonable searches and seizures.

At the outset, on this question of waiver, it should be noted that the opening of the door and admittance of the officers, in itself, does not carry with it consent to search the premises. Williams v. United States, 105 U.S.App.D.C. 41, 263 F.2d 487 (D.C.Cir.1959).

In determining whether or not there was such a consent as would constitute a waiver, the court finds guidance in the language of Judge Washington in Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (D.C.Cir.1951) 'Searches and seizures made without a proper warrant are generally to be regarded as unreasonable and violative of the Fourth Amendment. True, the obtaining of the warrant may on occasion be waived by the individual; he may give his consent to the search and seizure. But such a waiver or consent must be proved by clear and possitive testimony, and it must be established that there was no duress or coercion, actual or implied. Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; United States v. Kelih, D.C.S.D.Ill.1921, 272 F. 484. The Government must show a consent that is 'unequivocal and specific' (Karwicki v. United States, 4 Cir., 55 F.2d 225, 226), 'freely and intelligently given.' Kovach v. United States, 6 Cir., 53 F.2d 639. Thus 'invitations' to enter one's house, extended to armed officers of the law who demand entrance, are usually to be considered as invitations secured by force. United States v. Marquette, D.C.N.D.Cal.1920, 271 F. 120. A like view has been taken where an officer displays his badge and declares that he has come to make a a search (United States v. Slusser, D.C.S.D.Ohio 1921, 270 F. 818), even where the householder replies 'All right.' United States v. Marra, D.C.W.D.N.Y.1930, 40 F.2d 271. A finding of consent in such circumstances has been held to be 'unfounded in reason'. Herter v. United States, 9 Cir., 27 F.2d 521. Intimidation and duress are almost necessarily implicit in such situations; if the Government alleges their absence, it has the burden of convincing the court that they are in fact absent.'

In the instant case the State has failed to prove such waiver or consent by clear and positive testimony. One police officer testified that Josephine Robinson told him it was all right to make a search, but she denies that allegation. This falls short of clear and positive evidence of such consent. Moreover, even if the police officer's allegation is correct, still, it has not been established that there was no duress or coercion, either actual or implied. Intimidation and duress are almost necessarily implicit in a situation such as this involving a woman with no showing of any previous...