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In re Application of Berlin

Decided: October 31, 1955.

IN THE MATTER OF THE APPLICATION OF IRVING BERLIN AND MAX DIAMOND, TRADING AS ARROW AMUSEMENT COMPANY, TO QUASH SEARCH WARRANT FOR ROOMS 1 AND 2, PREMISES 301-317 CLINTON AVENUE, NEWARK, NEW JERSEY


On appeal from the Essex County Court, Law Division.

For modification -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. Opposed -- None. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

This is an appeal from an order of the Essex County Court denying petitioners' motion to quash a search warrant and to return the property seized pursuant thereto. We granted certification prior to argument in the Appellate Division.

The search warrant involved was issued on January 12, 1955 upon an affidavit by William F. Beegle reciting that he was "a detective of the New Jersey State Police * * * assigned to investigate matters pertaining to the conduct of an unlawful lottery business in Essex County."

The warrant issued was a "John Doe" warrant directed to the "Sheriff, or any duly authorized law enforcing officer," and authorized him to search and seize "any and all lottery paraphernalia that the said John Doe may have upon his person," to enter the premises known as Rooms 1 and 2, 301-317 Clinton Ave., Newark, N.J., and there search and seize "any item or items, if any such be found or intended to be used for any lottery purpose or any other illegal purposes."

On January 14, 1955 Beegle executed the search warrant and seized numerous items located on the premises above described, all of which are set forth in an inventory annexed to the return to the warrant.

At the time the warrant was issued and when it was executed, Beegle was a member of the New Jersey State Police and was under assignment to the New Jersey Law Enforcement Council as an agent-investigator.

On July 1, 1953 the Law Enforcement Council was separated by act of the Legislature from the Department of Law and Public Safety and given a separate appropriation by the Legislature for the performance of its work. Since its inception, members of the New Jersey State Police have been assigned to the Council to assist it in performing the functions assigned to the Council by the Legislature. These men perform their duties as instructed by the Council and report to the Council the results of their work. They are paid by the State Police, but since the Council was separated from

the Department of Law and Public Safety, the Council reimburses the Division of State Police for the salaries and expenses of the officers so employed by it.

The petitioners, Irving Berlin and Max Diamond, were tenants of the premises wherein the search was made and they claim the property seized either belonged to them or they were the bailees thereof. They further contend the warrant was unlawfully issued and executed and that the property seized was not of the type of property described in the warrant. They filed a petition addressed to the judge of the Essex County Court who had issued the warrant, seeking to quash the search warrant and asking the court to enjoin Beegle and the Law Enforcement Council and others from using the articles seized in any proceeding before the grand jury or any court of this State and to return the property to them.

The court below adjudged: (1) that the search warrant was sufficient on its face; (2) that there was probable cause for its issuance; (3) that the execution of the warrant by Beegle as a member of the State Police was illegal and his seizure of the property was unlawful; and (4) that the property should not be returned or its use as evidence enjoined.

The Law Enforcement Council appeals from the court's conclusion No. 3, and the petitioners cross-appeal from the court's conclusions Nos. 1, 2 and 4. The appeal as to the first conclusion is not prosecuted but it is said the warrant was unlawfully issued in that the affidavit upon which it is based did not contain facts upon which to base a finding of probable cause that a law violation was being committed.

There is no merit to this contention. In his affidavit, Beegle recited that in the course of his investigation he observed the rooms on the second floor of the premises in question, the tenants of which were not listed on the building directory. Almost daily he observed there a number of men whom he recognized as connected with an unlawful lottery being carried on in the ...


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