Defendants move to suppress evidence seized by representatives of the Essex County Sheriff's Office as a result of a search without a warrant conducted in the place of business of each of them. The motions were heard together by consent since both involve similar practices by the law enforcement officers concerned.
Defendant Parisi conducts a newsstand located at the northeast corner of Market Street and Pennsylvania Plaza, in the City of Newark. The stand consists of the usual wooden stall and contains numerous magazines, newspapers, covered books and pamphlets such as are found in the typical city newsstand. The defendant Weitershausen conducts a bookstore at 279 Market Street in the City of Newark. Ostensibly, this defendant deals in all types of new and used books, magazines and pamphlets.
As the result of a presentment returned by the grand jurors of Essex County during the year 1959, the Sheriff
of Essex County assigned one of his detectives, Arthur W. Magnusson, to conduct an investigation of the various booksellers and newsdealers in Essex County who were allegedly selling lewd, lascivious and salacious materials. During the course of his assignment, Detective Magnusson investigated a number of establishments, including the newsstand of defendant Parisi and the bookstore of defendant Weitershausen. In conducting his investigation Detective Magnusson made purchases of various publications from both of the defendants. His procedure was to observe the type of publications exposed for view and sale, and to make test purchases of copies of magazines and booklets which seemed to him to be of the type criticized in the presentment to the grand jurors. He would then take his purchases home, read them and judge their content as a whole, as he stated, "under the standard as laid down in the Roth case." The period of investigation consumed approximately three months. Detective Magnusson testified that while he was conducting his investigation he received numerous complaints from individuals, some anonymous, and from some religious organizations, concerning the type of materials that were available on the newsstands and in the bookstores, including those of these two defendants.
After completing his investigation Detective Magnusson made up a list of various materials which he judged, in his opinion, to be obscene, and thereupon arranged to have raiding parties of detectives go to the business establishments of these defendants for the purpose of searching for such materials and seizing them. Armed with copies of the list, two teams of detectives came to the newsstand of Parisi and the bookshop of Weitershausen on October 7, 1959, and thereupon seized the various materials which they found at those locations. The present indictments followed these raids.
It is conceded that no warrants were issued to the detectives authorizing the searches and seizures which they effected. The State contends, however, that since the publications
in question were exhibited in open view in a public place, there was justification to seize the materials without a warrant since, under such circumstances, a violation of the law was then being committed openly and in the presence of the raiding officers.
The defendants claim that a warrant, under the circumstances presented here, was absolutely necessary in order to sustain the searches that were made. They argue that the determination as to whether the publications in question were obscene, and therefore constituted an alleged violation of the law, was left to a police officer who was not subjected to judicial review for approval. Thus, it is argued, no determination of probable cause by an intervening judicial mind was made prior to the search and seizure, and that such constitutes an unreasonable search within the constitutional sense.
In the law of search and seizure it is rudimentary that a search by police officers may be conducted without a warrant only under exceptional circumstances. McDonald v. United States , 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948). Both the Federal Constitution and the Constitution of this State guarantee that our citizens shall be free of unreasonable searches and seizures, and provide that no warrant for search shall issue except upon probable cause supported by oath or affirmation. One of the exceptional circumstances which may justify a search and seizure by officers without a warrant is the commission of a crime in the presence of the officers. Under such circumstances, a reasonable search incident to the arrest may be conducted. See Agnello v. United States , 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925); United States v. Rabinowitz , 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950).
Under the theory espoused by the State here, it is said that the display of the materials in question to open view, in a public place, constituted the commission of a crime, and that since ...