On motion to suppress evidence.
[74 NJSuper Page 421] This proceeding involves the application of Joseph A. Racanelli to suppress evidence obtained by members of the Newark police as the result of a search of his premises on October 13, 1961 pursuant to a warrant. The present application also requests that the warrant under the terms of which the search in question was conducted be
quashed. As a result of the seizure of the evidence here sought to be suppressed, defendant was indicted for violation of N.J.S. 2A:112-3 in two counts.
The testimony adduced at the hearing indicated that on October 13, 1961 three detectives and a policewoman, all members of the Newark police, bearing a search warrant, forced their way into the apartment of Racanelli and thereupon seized a quantity of paper writing relating to bookmaking. As a result of this, defendant was arrested and charged as aforementioned.
The main thrust of defendant's argument goes to the sufficiency of the facts disclosed to the magistrate issuing the search warrant upon which he determined that probable cause existed for the issuance of the warrant. It is claimed that nothing more than mere conclusion of the police officer seeking the warrant was offered to the magistrate, and that such cannot constitute probable cause within the constitutional meaning of that term for the issuance of a search warrant.
Based on the testimony taken at the hearing on the motions to suppress and quash, the following are the facts surrounding the issuance of the warrant: As a result of an informant's tip, police officers of the City of Newark, including Detective Robert J. Murphy, investigated a possible violation of the bookmaking laws allegedly being committed at 181 Eastern Parkway in the city. The investigation consisted in a surveillance of the premises on two occasions, at which times it was observed that suspect's motor vehicle was at home. In addition, on several occasions members of the gambling squad made telephone calls to the premises; each time a call was made, the telephone would ring one time and a man would answer. Detective Murphy, after determining on the basis of his experience with the gambling squad that the person answering the telephone was a bookmaker, prepared an affidavit as the basis for a search warrant reading as follows:
Detective Robert J. Murphy Member of Newark Police Dept. Investigation Division, being duly sworn according to law upon his oath deposes and says that through information received from prior arrests, coupled with subsequent investigation and observation on 10/10/61 and 10/13/61, 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 2A:112-3 and Lottery 2A:121-3 are concealed in the premises of A. J. Racanelli known and designated as No. 181 Eastern Parkway 1st fl. left in the City of Newark, 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 know as Bookmaking 2A:112-3 and Lottery 2A:121-3 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.
Sworn to and subscribed before me this 13th day of October, 1961
MAGISTRATE, MUNICIPAL COURTS, COUNTY OF ESSEX, NEW JERSEY"
Upon completion of the affidavit, Mr. Murphy swore as to the truth of its contents before a lieutenant of the Newark Police Department who is also a notary public. He thereupon took the affidavit before a magistrate of the City of Newark, who was then sitting in municipal court. He approached the magistrate at side bar, presented the affidavit to him, and in doing so explained to the magistrate that he had received information from a previously reliable source that violations of the gambling laws were taking place on the premises; that on two occasions he had sat in front of the suspect's ...