On motion to quash warrant and to suppress evidence.
Crane, J.c.c. (temporarily assigned).
[72 NJSuper Page 512] On December 21, 1960 defendants Macri and Racaniello were in an apartment on Scotland Road in Orange, New Jersey, belonging to one Thomas Schillizzi. Detectives from the Essex County Prosecutor's Office, armed with a search warrant, knocked on the door, announcing that they had a package for delivery. When defendant Macri told them to leave the
package in front of the door, the detectives forced entry and searched the apartment, finding rundown sheets and other paraphernalia pertaining to bookmaking.
Two indictments have been returned against the defendants: one charges bookmaking, in violation of N.J.S. 2A:112-3, the other a conspiracy to violate the bookmaking statute. Defendants have moved to suppress the evidence seized.
The ground upon which it is urged that the seized articles should be suppressed is the claim that the search warrant was void because it was issued upon the basis of an affidavit containing insufficient facts on which to base a finding of probable cause.
The affidavit upon the basis of which the search warrant was issued reads as follows:
Peter J. Kenny, a Lieutenant of Detectives attached to the Prosecutor's Office in the County of Essex, being duly sworn according to law upon his oath deposes and says that through information received from a law enforcement officer and investigation conducted by him, he has just and reasonable cause to suspect and believe and does suspect and believe that the following goods and property, to wit: slips, papers, records, memoranda, sheets and paraphernalia, used in connection with the crime of Bookmaking are concealed in the premises of Thomas Schillizzi known and designated as No. 191 Scotland Rd., in the City of Orange, Essex County, New Jersey; and that he further has just and reasonable cause to suspect and believe and does suspect and believe that the said property is being used in connection with a violation of law commonly known as Bookmaking contrary to the statute in such case made and provided.
He, therefore, prays that a warrant be issued and said premises be entered and searched.
The Fourth Amendment of the United States Constitution and the New Jersey Constitution, Article 1, paragraph 7, provide, in substantially identical language, that search warrants shall issue only upon probable cause supported by oath or affirmation.
It is conceded by the prosecutor that the Fourth Amendment has been interpreted by the federal courts as requiring the issuing magistrate to make a finding of probable cause. See Nathanson v. United States , 290 U.S. 41, 47, 54 S. Ct. 11, 78 L. Ed. 159 (1933); Baysden v. United States , 271 F.2d 325 (4 Cir. 1959). Nevertheless, it is argued that the courts of New Jersey are not bound to ...