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In re Search Warrant for Rooms 1 and 2 of Premises 301-317 Clinton Avenue

Decided: March 25, 1955.

IN RE A SEARCH WARRANT FOR ROOMS 1 AND 2 OF PREMISES 301-317 CLINTON AVENUE, NEWARK, N.J.


Conlon, J.c.c.

Conlon

[35 NJSuper Page 138] This is a motion to quash a search warrant and for other relief. It is before the court on a petition and notice of motion entitled as above made on behalf of Irving Berlin and Max Dimond, trading as Arrow Amusement Company. Service of the notice and petition were acknowledged by the attorney for the New Jersey Law Enforcement Council which was represented on the motion. If there are any improprieties in the title of the cause or in the proper identification of the parties involved those matters will not be discussed since the merits of the proceedings were fully presented to the court without objection and augmented by a stipulation hereinafter referred to.

The search warrant in question was a John Doe warrant issued by me on January 12, 1955 for the premises, rooms 1 and 2, No. 301-317 Clinton Avenue, Newark, N.J., and directing the search for and seizure of "all lottery paraphernalia * * * and item or items, if any such be found or intended to be used for any lottery purpose or any other illegal purposes."

The petitioners contend that:

(a) The warrant was insufficient on its face;

(b) The property seized is not that described in the warrant;

(c) There was no probable cause established in the affidavit to justify the issuance of the warrant; and that

(d) The warrant was illegally executed.

The first objection -- that the warrant was insufficient on its face -- is not pressed, and it will be held to have been abandoned. As to the second objection -- that the property seized is not the property described in the warrant -- there is nothing before the court upon which such a determination can be made. Apparently the petitioners' contention is that the items seized are not such as pertain per se to a lottery. That appears to be true, but at the oral argument the respondent contended that some of the papers seized could be evidential of the conduct of a lottery. There is no proof to the contrary. The petitioners do not explain their use of the premises in question nor the nature or significance of the items seized. They content themselves with the allegation that the items were their property "either as owners thereof or bailees of the same." With such an absence of proof the court declines to determine as a fact that the property seized is not within the scope of that described in the search warrant.

The third objection to the search warrant is that the affidavit upon which it is based contained no facts upon which the court could base a finding of probable cause that the law was being violated; that may be conceded, but on the other hand the petitioners concede -- and the court finds as a fact -- that the affidavit discloses reasonable grounds for suspicion

and belief that the law was being violated. To sustain their position the petitioners rely on cases emanating from our federal courts such as Nathanson v. United States , 290 U.S. 41, 54 S. Ct. 11, 13, 78 L. Ed. 159 (1933), which held as follows:

"Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough."

The petitioners agree that the appellate courts of this State have not followed the principles adopted in the federal courts as stated in the Nathanson case, supra , but argue that this court should follow what may be described as the federal rule rather than the New Jersey rule. This the court declines to do. It is clearly bound to follow the rule that has been established and followed by our highest court for many years. That rule does not require that in order to justify the issuance of a valid search warrant there be presented evidence of probable cause of a violation of the law. The principle in effect in this State is thus expressed in Lane v. Pennsylvania R.R. Co. , 78 N.J.L. 672 (E. & A. 1910), at p. 674:

"In cases of criminal prosecutions, 'probable cause' means reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the accused is guilty of the offense with which he is charged."

The affidavit in the instant case clearly established circumstances from which it might reasonably be concluded upon the information and belief of the affiant that the lottery law was being violated in the premises in question. That is sufficient to justify the issuance of the warrant in this State.

The last contention of the petitioners is that the warrant was illegally executed, and that contention has merit since William F. Beegle who ...


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