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State v. Scharfstein

Decided: February 7, 1962.

THE STATE OF NEW JERSEY, PLAINTIFF,
v.
CHARLES SCHARFSTEIN, DEFENDANT



Crane, J.c.c.

Crane

[73 NJSuper Page 487] The testimony in this case shows that Peter J. Farley, a Newark detective assigned to the Fifth Precinct at Hunterdon and West Bigelow Streets, received a telephone call at approximately 2:45 P.M. on a Friday, the day in question. The caller was unknown to Detective

Farley and would not give his name, although asked several times to do so. He said that a white man would be at the corner of Nye Avenue and Dewey Street, Newark, in a white Buick sedan in approximately fifteen minutes and he would have lottery slips on him.

The detective testified that it would have taken about fifteen minutes to drive from the Fifth Precinct to the Municipal Court, and about the same time to drive from the Municipal Court back to Nye Avenue. It would have taken approximately the same time, that is, fifteen minutes, to drive from the Fifth Precinct where he and the other officers were located, to the Court House, and another fifteen minutes approximately to drive from the Court House back to the corner of Nye Avenue and Dewey Street. The only place where a magistrate or a judge was available at that time of the day was at the Municipal Building or at the Essex County Court House at High and West Market Streets in Newark. The corner of Nye Avenue and Dewey Street was at least three-quarters of a mile from the Fifth Precinct at Hunterdon and West Bigelow Streets.

Detective Farley, accompanied by another officer, drove to the corner of Nye Avenue and Dewey Street. They were just getting into position when a car arrived. It was a white Buick sedan and in the car was a white man. To that extent the information given by the anonymous telephone caller was corroborated. Detective Farley then asked the defendant to get out of the car, placed him under arrest and searched him. The defendant said nothing. Detective Farley found a white envelope which was sealed. He opened it, discovering adding machine tapes which in his opinion were paraphernalia used in connection with the operation of a lottery.

There are several questions presented. The defendant contends that the officer did not have the power to make an arrest. The possibilities for arrest for this kind of offense would have been: (1) under the gambling statutes of New Jersey, which make such an offense a

misdemeanor N.J.S. 2A:121-3; (2) under the disorderly person's statute N.J.S. 2A:170-18, which is an offense of lesser status than a crime; or (3) under the municipal ordinance. In order to justify an arrest for a misdemeanor or a disorderly persons offense it is required that the police officer have viewed or observed with his own senses the commission of the offense. Webb v. State , 51 N.J.L. 189 (Sup. Ct. 1889); N.J.S. 2A:169-3. And, in the absence of specific statutory authority, an officer can arrest for violation of a municipal ordinance only after first obtaining a warrant. Mayor, etc., of Newark v. Murphy , 40 N.J.L. 145 (Sup. Ct. 1878). Since the police officer did not view the slips prior to the time he made the arrest and did not possess a warrant, he of course had no power to make the arrest.

The defendant argues that since the arrest was invalid, the search that was made at the same time or approximately contemporaneously with the arrest must therefore necessarily be held to be invalid. This is not necessarily so.

While the arrest may have been invalid, there may nevertheless have been a reasonable basis for the search. The Fourth Amendment of the Constitution of the United States and the Constitution of New Jersey provide in substance that people shall be secure in their homes, persons, personal papers and effects, from unreasonable searches and seizures and that search warrants shall only be issued on probable cause.

Both Constitutions prohibit only searches that are unreasonable. It has been recognized by numerous United States Supreme Court cases that there is a variety of circumstances in which searches without a warrant may nevertheless be reasonable. One of these circumstances is that occurring when a search is made pursuant to a valid arrest. United States v. Rabinowitz , 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). It does not follow however that a search made after an invalid arrest must necessarily

be held unreasonable. The search may well have been justified by the existence of probable cause combined with the existence of circumstances ...


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