State v. Williams

• Decision Date: 22 May 1979
• Citation: 168 N.J.Super. 359,403 A.2d 31
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Cary WILLIAMS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 359

168 N.J.Super. 359

403 A.2d 31

STATE of New Jersey, Plaintiff-Respondent, v. Cary WILLIAMS, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued March 26, 1979.

Decided May 22, 1979.

Frank T. Simeone, Paterson, for defendant-appellant (Goodman, Rothenberg & Galluccio, Paterson, attorneys).

Simon Louis Rosenbach, Deputy Atty. Gen., for plaintiff-respondent (John J. Degnan, Atty. Gen., attorney).

Before Judges CONFORD, PRESSLER and KING.

The opinion of the court was delivered by

KING, J. A. D.

This case raises the question of whether law enforcement officers may search the non-public areas of a licensed tavern for evidence of general criminality, unrelated to the operation of the licensed activity, without a search warrant.

Appellant Cary Williams was indicted on November 4, 1976, with several others, for possession of lottery paraphernalia (N.J.S.A 2A:121-3(b)); working for a lottery (N.J.S.A. 2A:121-3(a)); receiving stolen property (N.J.S.A. 2A:139-1); and possession of revolvers without a permit (N.J.S.A. 2A:151-41(a)). After denial of his timely motion to suppress, R. 3:5-7, Williams was found guilty on November 3, 1977 of all charges except that of receiving stolen property. Following imposition of a custodial sentence Williams appeals, alleging violation of his rights under the Fourth Amendment to the Federal Constitution.

These are the facts pertinent to the legality of the search and seizure. On January 22, 1976 Detectives Giordano and Zdanis of the Paterson Police Department went to a tavern located at 54 Washington Avenue in Paterson. Their purpose was to investigate concerning a stolen CB radio following a "tip" from an unidentified source received two days before. The detectives had no search warrant. There was no attempt at the trial level to suggest exigent circumstances.

At about 11 a. m. the two detectives entered the tavern and identified themselves to the bartender as local police officers. Detective Zdanis immediately went behind the bar and opened a trap door which led to the basement. Detective Giordano searched the public area of the bar. Upon reaching the cellar area Zdanis observed three males inside a small (8' x 8') storage room in the basement. One of the men was defendant Williams. Zdanis observed in open view several stacks of money, tally sheets, a strongbox and two hand guns. Further search revealed a stolen CB radio. The detectives then summoned the vice squad and the observed items were seized, including $29,807.40 in cash. Several lottery slips were also found on one of Williams' coindictees.

Defendant Williams lived in an apartment above the bar with his wife and children. He was the custodian of the entire building, responsible for cleaning and maintenance, and had the right of access to the tavern's basement and storage room where he kept tools. The room where the illegal gambling activity was observed and the physical evidence was seized was also used for storage of liquor. It was clearly a part of the licensed premises.

Preliminarily, we hold that under our cases defendant Williams, although not the owner of the tavern, has requisite standing to voice the claim of an illegal search and seizure. He was a resident of the licensed premises. He had right of access to the storage area and kept personal property there. The basement was not a public area and defendant's presence was neither casual nor transient. His interest was personal and his expectation of privacy from a general warrantless search real. See State v. Parker, 153 N.J.Super. 481, 488, 380 A.2d 291 (App.Div.1977); State v. LaDuca, 89 N.J.Super. 159, 163, 214 A.2d 423 (App.Div.1965). Cf. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

The State contends that the warrantless search was authorized by the statutes regulating the sale of alcoholic beverages, specifically N.J.S.A. 33:1-35, and by our holding in State v. Zurawski, 89 N.J.Super. 488, 215 A.2d 564 (App.Div.1965), aff'd O. b., 47 N.J. 160, 219 A.2d 614 (1966). N.J.S.A. 33:1-35 provides in pertinent part as follows:

The Director of the Division of Alcoholic Beverage Control and each other issuing authority may make, or cause to be made, such investigations as he or it shall deem proper In the administration of this chapter and of any and all other laws now or which may hereafter be in force and effect concerning alcoholic beverages, or the manufacture, distribution or sale thereof, or the collection of taxes thereon including the inspection and search of premises for which the license is sought or has been issued, of any building containing the same, of licensed buildings, examination of the books, records, accounts, documents and papers of the licensees or on the licensed premises.

Every applicant for a license, and every licensee, and every director, officer, agent and employee of every licensee, shall, on demand, exhibit to the director or other issuing authority, as the case may be, or to his or its deputies or investigators, or inspectors or agents all of the matters and things which the director of the division or other issuing authority, as the case may be, is hereby authorized or empowered to investigate, inspect or examine, and to facilitate, as far as may be in their power so to do, in any such investigation, examination or inspection, and they shall not in any way hinder or delay or cause the hindrance or delay of same, in any manner whatsoever. Investigations, inspections and searches of licensed premises may be made without search warrant by the director, his deputies, inspectors or investigators, by each other issuing authority and by any officer. (Emphasis supplied).

The "issuing authority" alluded to in the statute is the municipal entity issuing the license. The statute thereafter specifically grants authority to an authorized investigator to inspect and examine all "books, records, accounts, documents and papers" in any way relating to the licensed business. The legislative intent for broad regulatory power is manifested by the statement, "the above enumerations of purposes and powers shall not be construed as exclusive and shall not limit such power to investigate, examine and subpoena for any purpose consonant with the administration and enforcement of this chapter." Ibid.

The State also adverts to the regulations of the Division of Alcoholic Beverage Control which prohibit any illegal activity and, specifically, illegal gambling, on a licensed premises, as justification for the unwarranted search. The regulations state:

N.J.A.C. 13:2-23.5(c).

No licensee shall allow, permit or suffer the licensed premises to be accessible to any premises upon which any illegal activity or enterprise is carried on, or the licensed premises or business to be used in furtherance or aid of or accessible to any illegal activity or enterprise.

N.J.A.C. 13:2-23.7(a).

No licensee shall engage in or allow, permit or suffer in or upon the licensed premises:

1. The conduct of any lottery;

2. Any ticket or participation right in any lottery to be sold or offered for sale;

3. Any pool-selling, bookmaking or any unlawful game or gambling of any kind;

4. Any slot machine or device in the nature of a slot machine which may be used for the purpose of playing for money or other valuable thing;

5. Nor shall any licensee possess, have custody of, or allow, permit or suffer in or upon the licensed premises any slip, ticket, book, record, document, memorandum or other writing pertaining in any way to any lottery, pool-selling, bookmaking or unlawful game or gambling of any kind.

Additionally, in support of the detectives' right to search without a warrant the trial judge relied upon the consent provision of the application for the license executed by Joyce Waller, the principal of the corporate owner of the licensed premises and defendant's sister, which stated:

The applicant agrees, if license is issued, to abide by and comply with the provisions of R.S. Title 33, c. 1, and any rules and regulations promulgated heretofore and hereafter by the Director of the Division of Alcoholic Beverage Control pursuant thereto, and with the provisions of all duly enacted municipal ordinances and resolutions.

The applicant consents that the licensed premises and all portions of the building containing same, including all rooms, cellars, out-buildings, passageways, closets, vaults, yards, attics, and every part of the structure of which the licensed premises are a part and all buildings used in connection therewith which are in his possession or under his control, may be inspected and searched without warrant at all hours by the Director of the Division of Alcoholic Beverage Control, the Director of the Division of Taxation, their duly authorized inspectors, investigators and agents and all other officers.

In State v. Zurawski, Supra, defendant tavern owner was convicted of bookmaking and appealed from the denial of his motion to suppress evidence seized by the local police without a search warrant. In that case three detectives of the local police department entered defendant's tavern at about 1 p. m. One of the detectives told defendant that they were making an inspection on behalf of the municipal alcoholic beverage control board. Their warrantless search uncovered lottery slips in the pantry and the kitchen of the licensed premises. This court in Zurawski held that N.J.S.A. 33:1-35 authorized the warrantless search. Reliance was also placed on defendant owner's written consent to search, contained in the application for a license, and the specific prohibition against possession of lottery tickets on a licensed premises in the Director's regulations. This court there concluded that the regulatory demands of the alcoholic beverage business, one "so prone to evils," justified the warrantless search of the premises. We do not disagree with the result in Zurawski but do not find it controlling on the...