On motion to suppress evidence.
Defendant was arrested and later indicted for bookmaking activities on March 10, 1961 at his shoe store in the Township of Cranford.
He now moves, before trial of the indictment, for an order suppressing the evidence in the possession of the prosecutor on the ground that such evidence was obtained during a search which was made without a warrant and which was, therefore, unreasonable and illegal. He relies upon the now famous case of Mapp v. Ohio , 367 U.S. 643 (1961), which held that evidence obtained as the result of an unlawful search and seizure may not be admitted in the courts of any state. The prosecutor admits that no search warrant was obtained, but he resists suppression with the contentions that (1) the search was reasonable under the circumstances, and (2) the search was made with defendant's consent.
Although the instant investigation was made before the decision in the Mapp case, there can be no doubt that the principles of that case are applicable here. State v. Masi , 72 N.J. Super. 55 (Law Div. 1962). However, because of substantial differences in the facts, there are issues here raised which are not resolved by the Mapp decision. The facts of the latter case were recited therein by the court as follows:
"On May 23, 1957 three Cleveland police officers arrived at appellant's residence in that city pursuant to information that 'a person [was] hiding out in the home who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home.'
Miss Mapp and her daughter by a former marriage lived on the top floor of the two-family dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and undertook a surveillance of the house.
The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened and the policemen gained admittance. Meanwhile Miss Mapp's attorney arrived, but the officers, having secured their own entry, and continuing in their defiance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the 'warrant' and placed it in her bosom. A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she has been 'belligerent' in resisting their official rescue of the 'warrant' from her person. Running roughshod over appellant, a policeman 'grabbed' her, 'twisted [her] hand,' and she 'yelled [and] pleaded with him' because 'it was hurting.' Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, a closet and some suitcases. They also looked into a photo album and through personal papers belonging to the appellant. The search spread to the rest of the second floor including the child's bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search."
In the instant case the procedure followed by the investigating officers is quite different. Union County Detective Haines, who conducted the investigation with the assistance of County Detective Frankel and two members of the Cranford Police Department (Captain Rosendale and Officer Haney), testified that his office had received information of possible bookmaking at defendant's store and that he had checked the premises on two or three occasions during November and December 1960 without seeing any evidence of bookmaking or any circumstances that would
have been sufficient to procure a search warrant. However, on March 10, 1961, the date in question, while watching the store from a nearby point of vantage, Detective Haines and the other officers observed several people entering and leaving the store, within a period of about one and one quarter hours, without purchasing any merchandise. Among such people were two men (Anthony Malpire and a cab driver by the name of Scarizin), who were believed by the officers to be connected with gambling activities. After making these observations Detective Haines and Captain Rosendale entered the store through the front door while Detective Frankel and Officer Haney watched the rear door. In the premises were the defendant, Malpire and a third man by the name of Harry Walsh. Detective Haines identified himself to defendant, advised the latter of reports that bookmaking was going on in the store and asked him whether he had any objections to the officers' making a check of the premises. Defendant replied: "Go ahead; there is no gambling going on here." Detective Haines then asked defendant to empty his pockets and the latter complied in part with the request but failed to remove a slip of paper from his shirt pocket. Seeing the slip and noticing that it contained some printed and written matter, Haines removed the slip himself. It contained numerous horse race bets. Defendant admitted ownership thereof.
At this point Frankel and Haney entered the store, and the four officers then made a thorough search of the premises. They found therein horse race betting slips, Irish Sweepstakes tickets and a 2' x 3' board containing race winners for the preceding week. Some of this gambling evidence was found in the cash register and in a counter drawer, which were ...