Criminal action. On motion to suppress evidence.
Rosen, J.c.c. (temporarily assigned).
Defendant, Oscar Valentin, was indicted on a charge of carrying a shotgun concealed in his automobile, without having obtained a permit to do so, in violation of N.J.S. 2A:151-41.
Prior to trial, Valentin moved in the County Court to suppress the evidence (the shotgun) on the ground that it was taken from his automobile by the police officers in
the Town of Harrison without a search warrant, and as the result of an unreasonable search and seizure, in violation of the Fourth Amendment of the United States Constitution and of Article I, paragraph 7, of the New Jersey Constitution.
As a result of Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), our Supreme Court stated that it could not determine on the record before it whether the search and seizure were unreasonable, and remanded the matter to the County Court to permit the parties to introduce all relevant proof on the new issue generated by Mapp. 36 N.J. 41 (1961). This court granted the State and the defendant an opportunity to produce additional facts surrounding the particular search and seizure, but was informed that both parties relied upon the partial transcript of testimony given by the police officers in the United States District Court in a criminal proceeding and arising out of possession of the same shotgun at the time in question.
A reading of this transcript discloses that on March 19, 1960, at or about 1:45 A.M., in the Town of Harrison, County of Hudson, the defendant stopped at a tavern located on the roadway which is the main artery for traffic from Newark to New York. The defendant parked his car next to the curb, walked across the street and entered a tavern which closes at 2:00 A.M. Two Harrison police officers, having seen the defendant go into the tavern and not recognizing him, approached the parked vehicle. While one of the police officers watched the defendant through the tavern window, the other officer searched the defendant's vehicle and allegedly found a disassembled shotgun and 12 shotgun shells under the driver's seat. The defendant was thereupon arrested as he left the tavern. The shotgun was used as evidence by the State in obtaining an indictment against the defendant on the charge of carrying a concealed weapon. The police officers never questioned the defendant prior to the search or subsequent to the arrest
even though the defendant was at all times within their view and only a few feet away from them.
One of the police officers testified that his "suspicions" were aroused by defendant's actions and that "he just checked it out and it was fruitful." Defendant, when observed by this police officer, was walking "in a sober manner." The car in which defendant was riding had New Jersey license plates and it appears the reason for the officer's investigation was due to the fact that they had never seen the car or the defendant in the Town of Harrison at any other time.
Defendant was tried in the United States District Court, District of New Jersey, on June 28, 1960, for violation of the National Firearms Act, said violation arising out of the same set of facts as above stated. At that trial, the court held that the evidence seized (the shotgun) was improperly obtained, in violation of defendant's constitutional rights under the Fourth Amendment of the United States Constitution , suppressed the evidence, and acquitted the defendant.
In Mapp the United States Supreme Court held that the interrelationship of the Fourth Amendment and the due process clause of the Fourteenth Amendment of the United States Constitution guaranteeing to individuals the right of privacy free from unreasonable state intrusion renders evidence obtained by ...