On motion to suppress evidence.
This is a motion by the defendant to suppress evidence which he claims was obtained in an unlawful search and seizure.
The defendant stands indicted for violations of N.J.S. 2A:112-3, namely, (1) operating a place where persons might resort for the purpose of gambling, and (2) willfully and unlawfully making book on horse races.
The evidence sought to be suppressed consists of horse race slips and other gambling paraphernalia seized in a haberdashery store owned and operated by defendant. It includes two slips obtained from defendant's person, 24 slips found in an adjacent hallway, 11 Armstrong racing sheets found in the store, and 13 account slips found in the cash register.
The Fourth Amendment of the United States Constitution and Art. I, par. 7 of the 1947 New Jersey Constitution prohibit unreasonable searches and seizures. Our United States Supreme Court has repeatedly emphasized that the mandate of said amendment requires adherence to judicial processes. Weeks v. United States , 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914); Agnello v. United States , 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925). Only where the search is incidental to a valid arrest, United States v. Rabinowitz , 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950), or in "exceptional circumstances,"
Johnson v. United States , 333 U.S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948), may an exemption lie from the requirement of a search warrant, and then the burden is on those seeking the exemption to show the need for it. United States v. Jeffers , 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1951). This protection of the Fourth Amendment extends to business premises as well as dwelling houses. Go-Bart Importing Co. v. United States , 282 U.S. 344, 51 S. Ct. 153, 75 L. Ed. 374 (1931). However, such constitutional restrictions are directed solely against "unreasonable searches and seizures," whether under the United States or our New Jersey Constitution. Harris v. United States , 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947); Eleuteri v. Richman , 47 Super. 1 (App. Div. 1957).
In order to determine the constitutionality of the searches and seizures here involved, the actions of the officers must be considered in two phases, bearing in mind that there was no search until after the arrest of the defendant.
The first phase was the surveillance of the defendant's store prior to their entrance. They observed several people entering and leaving the store without making any apparent purchases, and observed defendant leave the store, enter an adjacent hallway and re-enter the store. Such actions, in themselves, although insufficient to warrant a conviction, are significant and unusual for a person engaged in a haberdashery business, and are more consistent with the furtive operation of an illegal business and sufficient to warrant reasonable grounds for suspicion and belief that defendant was operating his place of business for illegal purposes, which is all that is required to determine that the entry was reasonable.
Absolute proof that a crime is being committed is not required. It is sufficient if the acts and circumstances considered in the light of their relation to each other and to the apparently lawful business conducted or purportedly being conducted by the person under surveillance, be such
as to arouse a suspicion and engender an honest belief that a crime is being committed, such as would be acted upon by an ordinarily prudent person. Lane v. Pennsylvania R.R. Co. , 78 N.J.L. 672 (E. & A. 1910); In re Berlin , 19 N.J. 522 (1955). As Justice Wachenfeld stated in the Berlin case (though the issue there was the sufficiency of ...