Criminal action. On motion to suppress evidence.
This is a motion by the defendants Roosevelt Robinson and his wife Josephine Robinson to suppress evidence.
Originally this motion was made by the defendant Roosevelt Robinson alone. However, at the hearing the parties stipulated that the defendant Josephine Robinson would join therein and the motion of Roosevelt Robinson would be treated as one on behalf of both defendants.
The evidence consists of lottery paraphernalia seized by police officers in the course of a search of the premises at 418 Bergen Street, Newark, New Jersey. The search was admittedly made without a search warrant. The defendants contend that the search was an unreasonable one and therefore that the fruits thereof must be suppressed in accordance with Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961).
The circumstances surrounding the search are as follows: On July 23, 1960, at approximately 8:15 A.M., Newark police officers received information that a lottery business was being conducted at 418 Bergen Street, Newark, New Jersey. Three police officers, without procuring a search warrant, proceeded to that address and upon their arrival at approximately 9 A.M. knocked on the door and were admitted by the defendant's mother Mrs. Dunn. The officers testified that they identified themselves and that both Mrs. Dunn and the codefendant Mrs. Robinson told them it was
all right to search the premises. Mrs. Dunn and Mrs. Robinson both deny that they consented to the search. The ensuing search produced the lottery paraphernalia which is sought to be suppressed.
At the hearing on this motion the defendant Roosevelt Robinson testified that he was separated from his wife, the codefendant herein, and rented an apartment in New York City, but still considered 418 Bergen Street, Newark, New Jersey, to be his residence and kept his clothes and tools at this Newark address.
The main issue is whether the search and seizure in the instant case are unreasonable.
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).
In the instant case no search warrant was procured. It is not contended by the State that the search was incidental to an arrest, nor could such contention be made since the defendants were not placed under arrest until the premises were searched and the lottery slips seized. Nor has the State shown any exceptional circumstances to justify the absence of a search warrant. On the contrary, the facts adduced at the ...