State v. Schumann

• Citation: 384 A.2d 201,156 N.J.Super. 563
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Richard Carl SCHUMANN, Jean Lang, Defendants-Respondents.
• Decision Date: 20 January 1978
• Court: New Jersey Superior Court – Appellate Division

Page 563

156 N.J.Super. 563

384 A.2d 201

STATE of New Jersey, Plaintiff-Appellant, v. Richard Carl SCHUMANN, Jean Lang, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 4, 1978.

Decided Jan. 20, 1978.

Simon L. Rosenbach, Asst. Prosecutor, for plaintiff-appellant (Stephen R. Champi, Prosecutor of Somerset County, attorney; Simon L. Rosenbach, Asst. Prosecutor, on the brief).

George F. Baier, Jr., New Brunswick, for defendants-respondents.

Before Judges HALPERN, LARNER and KING.

The opinion of the court was delivered by

HALPERN, P. J. A. D.

The State appeals, pursuant to leave of this court, from an order granting the motion of defendants Richard Carl Schumann and Jean Lang to suppress evidence of illegal drug activity seized by the police under authority of a search warrant. The search warrant was issued by the same judge who subsequently suppressed the evidence seized. True copies of the affidavit made by County Detective Michael Buchinski to obtain the warrant, the warrant and Buchinski's return of the warrant are annexed hereto as an appendix.

The sole issue presented is the legal sufficiency of Buchinski's affidavit and the search warrant issued thereon. The trial judge, relying primarily upon the decision in State v. Ratushny, 82 N.J.Super. 499, 198 A.2d 131 (App.Div.1964), held the search invalid because the warrant was overbroad in its scope in that numerous unrelated individuals, other than the suspect Carl Schumann, a brother of defendant Richard, lived in the premises to be searched. ¹ We are here involved with the illegal drugs seized by the police in a room occupied by defendants in the large one-family dwelling authorized to be searched under the warrant.

When a challenged search is made under the authority of a search warrant, the warrant is preferentially treated and is presumed valid, and will be sustained if there is a substantial basis for the trial judge to conclude that illegal activity is taking place. The burden of going forward with proof of the warrant's alleged invalidity rests upon the defendant. Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Mark, 46 N.J. 262, 273, 216 A.2d 377 (1966); State v. Whittington, 142 N.J.Super. 45, 52, 359 A.2d 881 (App.Div.1976); State v. Brown, 132 N.J.Super. 180, 185, 333 A.2d 264 (App.Div.1975); State v. Wright, 113 N.J.Super. 79, 82, 272 A.2d 758 (App.Div.1971), certif. den. 58 N.J. 164, 275 A.2d 745 (1971); State v. Gaudiosi, 97 N.J.Super. 565, 571, 235 A.2d 680 (App.Div.1967); 8A Moore, Federal Practice (2 ed. 1977), par. 41-09(4) at 41-149. The warrant must be read realistically in light of the proofs upon which it was issued. State v. DeSimone, 60 N.J. 319, 324-326, 288 A.2d 849 (1972). It need only describe the premises to be searched with reasonable accuracy, and pinpoint precision is not required. State v. Wright, 61 N.J. 141, 148-149, 293 A.2d 394 (1972); State v. Bisaccia, 58 N.J. 586, 279 A.2d 675 (1971). The resolution of doubtful or marginal cases should be largely determined by the preference to be accorded warrants. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Perry, 59 N.J. 383, 393-394, 283 A.2d 330 (1971); State v. Mark, supra. In State v. Kasabucki, 52 N.J. 110, 244 A.2d 101 (1968), the court, in defining the standard to be followed by the trial judge in evaluating whether the affidavits submitted in support of a search warrant established probable cause, said:

When a police officer seeking a search warrant presents the basis therefor in affidavit form to a judge for evaluation on the issue of probable cause, the judge's approach must be a practical and realistic one. The officer's statements must be looked at in a common sense way without a grudging or negative attitude. There must be an awareness that few policemen have legal training and that the material submitted to demonstrate probable cause may not be described with the technical nicety one would expect of a member of the bar. Moreover, the judge should take into account the specialized experience and work-a-day knowledge of policemen. State v. Contursi, 44 N.J. 422, 431, 209 A.2d 829 (1965). The facts asserted must be tested by the practical considerations of everyday life on which reasonably prudent and experienced police officers act. (at 117, 244 A.2d at 104.)

(I)n reviewing the legal propriety of a search warrant, substantial deference should be paid to the issuing court's finding of probable cause. The affidavits presented to the court on the application should not be examined with a hypertechnical eye. The approach must be a practical and common sense one. It must be engaged in with a consciousness that bookmaking operations are carried on cautiously, furtively and deceptively, and by as many camouflages as human ingenuity can devise. State v. Contursi, supra, 44 N.J. at p. 431, 209 A.2d 829. The consideration cannot be a grudging one. Such an attitude would give no weight to the good faith of the police officer in seeking judicial sanction for the search. Moreover, that attitude would probably result in failure to take into account a significant factor, i. e., the officer's experience with bookmaking activities and the factual indications of them. (at 120, 244 A.2d at 106.)

See also, United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. 741, 13 L.Ed.2d 684; State v. Kurland, 130 N.J.Super. 110, 113, 325 A.2d 714 (App.Div.1974).

Viewed in the light of this common sense, nontechnical and positive approach, we are satisfied that Buchinski's affidavit was sufficient for the judge to find probable cause for the issuance of the search warrant for the entire described dwelling on Rt. 206 in Hillsborough Township; and that he erred in holding the warrant to be overbroad in scope.

State v. Ratushny, supra, relied upon by the judge in suppressing the search is not in conflict with our view; rather it is supportive of it. In Ratushny the affiant knew that the apartment house to be searched consisted of four separate apartments, occupied by different families who had no connection in any way with the one apartment occupied by defendant. In suppressing the search we said:

We hold that where the premises reasonably believed to house illegal activity are known or reasonably should have been known by the police to be premises being utilized for the occupancy of more than one family, the search warrant must contain as specific a description of the particular area to be searched as the nature of the circumstances reasonably permit. (82 N.J.Super. at 506, 198 A.2d at 135.)

The significant words are, "as the nature of the circumstances reasonably permit." We there anticipated that instances would arise where it would be impossible to know just where to search, and that further inquiry would be highly unwise. In the instant case it is clear that Carl had told the undisputedly reliable informer that he had access to the entire premises, and that he was continually changing his hiding place for the drugs he was selling in various places throughout the house and outbuildings to avoid detection by the police. It is obvious that any attempt by the informer to pinpoint Carl's hiding place on any given day would have jeopardized the entire police operation.

A similar issue was presented in United States v. Olt, 492 F.2d 910 (6 Cir. 1974), where the court dealt with the problem of a warrant authorizing the search of premises containing two apartments, and held:

For purposes of satisfying the Fourth Amendment, searching two or more apartments in the same building is no different than searching two or more completely separate houses. Probable cause must be shown for searching each house or, in this case, each apartment. If such cause is shown there is no reason for requiring a separate warrant for each resident. A single warrant may cover several different places or residences in a single building. But probable cause must be shown for searching each residence unless it be shown that, although appearing to be a building of several apartments, the entire building is actually being used as a single unit. (at 911.)

Accordingly, we hold that the warrant issued to search the multiple-occupied structure here involved, where no specific designated sub-unit can be identified, is valid and not contrary to the holding in Ratushny. See Annotation, "Search Warrant: Sufficiency of Description of Apartment or Room to be searched in multiple-occupancy structure," 11 A.L.R.3d 1330, § 7 (1967), and cases cited therein; United States v. Corbett, 518 F.2d 113, 115 (8 Cir. 1975); Minovitz v. United States, 112 U.S.App.D.C. 21, 298 F.2d 682, 684 (D.C.Cir.1962); State v. Ellis, 263 S.C. 12, 207 S.E.2d 408 (Sup.Ct.1974); United States v. Curwood,338 F.Supp. 1104 (D.Mass.1972); State v. Hendricks, 145 N.J.Super. 27, 33-34, 366 A.2d 999 (App.Div.1976); Ratushny, supra.

Finally, having held that the warrant was validly issued and executed, it follows that even though defendants were not named in the affidavit or warrant, nevertheless, the search of the room occupied by defendants was proper, and the drugs seized therein may be used as evidence. See United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974); State v. Smith, 140 N.J.Super. 368, 356 A.2d 401 (App.Div.1976), aff'd 75 N.J. 81, 379 A.2d 1275 (1977).

The order suppressing the search is reversed.

                APPENDIX
                                      SUPERIOR COURT OF NEW JERSEY
                                      SOMERSET COUNTY-LAW DIVISION
                STATE OF NEW JERSEY)
                                   )            CRIMINAL
                COUNTY OF SOMERSET )  AFFIDAVIT FOR SEARCH WARRANT
                

Investigator Michael Buchinski of full age, being duly sworn according to law, upon his oath, deposes and says:

1. I have been employed by the Plainfield Police Department since August 1968, and was a patrolman until June of 1969, at which time, I was assigned to the Vice Section of the ...