On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
On August 22, 1954, a member of the New Jersey State Police applied to the magistrate of the Municipal Court of Chesterfield Township for search warrants. His affidavits alleged just and reasonable cause to believe that gaming was taking place in violation of N.J.S. 2 A:112-3. The premises were described respectively as 134 Second Street in the City of Bordentown and 54 East Main Street in the Township of Mansfield. The search warrants issued and were executed.
Plaintiffs filed a complaint in the Chancery Division of the Superior Court seeking among other things to suppress the product of the raids. Both plaintiffs alleged illegality in that (1) the magistrate was without authority to issue a warrant for a search beyond the territorial limits of his court; (2) no authority exists for a warrant in connection with gambling; and (3) the warrants do not "particularly" describe the papers and things to be seized as required by Article I, paragraph 7 of the Constitution of New Jersey. In the course of his complaint, plaintiff Danley described the premises searched as 52 East Main Street (the warrant reads " 54 ") but no charge of illegality by reason of that
variance is specifically pleaded. Both plaintiffs allege indictments were procured on the basis of the papers and property seized and add that the State "will rely upon the same at the trial of said indictment and in the absence of the same cannot prove a prima facie case under said indictment."
Defendants obtained summary judgment on motion. 43 N.J. Super. 303 (Ch. Div. 1956). The Appellate Division affirmed, 47 N.J. Super. 1 (1957), and plaintiffs are before us as of right because of the constitutional questions asserted.
The State concedes the magistrate was without authority to issue a warrant for a search beyond the territorial jurisdiction of his court, N.J.S. 2 A:8-20, and we think the concession is correct.
We find no substance in the second point, that the search warrants were void for want of a statute expressly authorizing them with respect to violations of the gaming statutes. The authority is implicit in the judicial power and is acknowledged in the very provision of the Constitution upon which plaintiffs rely. A different view cannot be found in the circumstance that the Legislature has expressly authorized searches in some situations, largely in aid of regulatory measures not involving criminal liability, such as R.S. 4:1-23; R.S. 23:4-35; R.S. 23:10-20; R.S. 26:3-59; R.S. 55:11-16; R.S. 56:3-25 and 47; or that the Legislature saw fit to regulate searches and seizures in the field of alcoholic beverages, R.S. 33:1-56 et seq., wherein we note, parenthetically, that a provision appears for the return of lawful property illegally seized under color of a warrant, R.S. 33:1-62, and certain abuses connected with searches are denounced as misdemeanors, R.S. 33:1-64 and 65. In Application of Berlin, 19 N.J. 522 (1955), in which a search warrant in connection with a gaming offense was sustained, no one suggested the issue here tendered, and doubtless because of the common acceptance of the proposition that the power is inherent.
As to the third objection, we fail to understand how the papers and things to be seized could be more explicitly
described. And with respect to plaintiff Danley, if we assume he pleads illegality because of the variance in the street number, it is enough to say that if that claim be correct, it would add nothing decisive to the conceded illegality arising out of the magistrate's lack of authority.
In sum total, for the purpose of this appeal, illegality is clear, but equally clear is the fact that the trooper in good faith attempted to comply with the applicable mandate of the Constitutions, Federal and State, that a magistrate's decision intervene between the police and the search.
Plaintiffs recognize that this State has adhered to the rule that proof otherwise admissible will be received notwithstanding illegality of search and seizure. State v. Alexander, 7 N.J. 585, 594 (1951), certiorari denied, 343 U.S. 908, 72 S. Ct. 638, 96 L. Ed. 1326 (1952); State v. Lyons, 99 N.J.L. 301 (E. & A. 1923); State v. Merra, 103 N.J.L. 361 (E. & A. 1927); State v. Cortese, 104 N.J.L. 447 (E. & A. 1927) affirming 4 N.J. Misc. 683 (Sup. Ct. 1926); State v. Guida, 119 N.J.L. 464 (E. & A. 1938), affirming 118 N.J.L. 289 (Sup. Ct. 1937). They contend, however, that the rule is designed to avoid interruption of a criminal trial by collateral inquiries, and hence that a proceeding may be maintained in advance of the trial for the return or suppression of the matters seized. In jurisdictions which exclude evidence obtained by unreasonable search and seizure, an objection at trial may come too late. 2 Wharton, Criminal Evidence (12 th ed. 1955), § 699, p. 705. See, for example, Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. Reliance is also placed upon the fact that in several of our cases the denial of an application for the return of the seized property was upheld upon a finding that the search or warrant was lawful, without ruling upon ...