For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J. Weintraub, C.J. (concurring).
[39 NJ Page 252] In State v. Macri, 72 N.J. Super. 511 (Law Div. 1962), Judge Crane ordered the quashing of the search warrant and the suppression of evidence which, on his finding, was obtained by the Essex County Prosecutor's office through an unconstitutional search and seizure. In State v. Viscito he entered a similar order on a similar finding. Leave to appeal from the orders was denied by the Appellate Division but thereafter this Court granted certification on the State's application. 38 N.J. 184 (1962). The order granting certification directed that testimony be taken with respect to the facts in the State's possession and the facts disclosed to the issuing judge at the time the search warrants were obtained.
In Macri a search warrant was issued by a judge on the basis of an affidavit by Peter J. Kenny, a lieutenant of detectives attached to the prosecutor's office, which set forth that through information received from a law enforcement officer and investigation conducted by him, he had just and reasonable cause to suspect and believe and did suspect and believe that slips, papers, records, memoranda, sheets and paraphernalia used in connection with bookmaking were concealed on the premises of Thomas Schillizzi, 191 Scotland Road, Orange, and that he had just and reasonable cause to believe that said property was being used in connection with bookmaking. 72 N.J. Super., at p. 513. The affidavit contained no statements of the facts or circumstances either known by or told to him and upon which he based his suspicion and belief. Pursuant to the order of this court Lieut. Kenny's testimony was taken. He testified that he had received information as to the alleged bookmaking from Lieut. Kraft, who, in turn had received it by way of an anonymous letter. Lieut. Kenny made inquiries with respect to telephone listings, learned that a telephone was listed in the name of S & S Painting and Decorating Company, 191 Scotland Road, and was billed to Thomas Schillizzi, Apt. 9, and that Schillizzi also had an unlisted telephone in the same apartment. He observed Macri enter the apartment house and noted that Macri was not listed there and that no name appeared on the door of Apt. 9. He checked the arrest record of Macri and found none. He placed calls to the telephones at Apt. 9, asked to speak to John or Joe and hung up when he was told that there was no one by that name. He was specifically asked whether, when he obtained the search warrant, he told the judge of any facts or circumstances other than those set forth in the affidavit and he replied: "I have no recollection of telling him any of these things, no sir."
In Viscito, a search warrant was issued on the basis of an affidavit by Benjamin S. Fisher, a detective in the office of the Essex County sheriff, which set forth that he had just and reasonable cause to suspect and did suspect and believe
that books, memoranda, sheets, papers, slips and paraphernalia used in connection with the taking and registering of bets upon horse races were concealed in premises occupied by John Doe, Jane Doe and others at 16 Sheffield Drive, Apt. 3-C, Building No. 1, in the City of Newark, and that he had just and reasonable cause to suspect and believe that said property was being used in connection with bookmaking. The affidavit further set forth that his suspicions were based upon information received from informants and other witnesses and developed as the result of observation, surveillance and through information confided by other law enforcement agents. The affidavit contained no further statement as to the nature of the information received from the informants, or any statement as to the reliability of the informants, nor did it set forth any facts or circumstances bearing upon the results of the observation and surveillance. Pursuant to the order of this court, Detective Fisher's testimony was taken. He testified that he had received a telephone call from an unnamed informant from whom he received earlier tips. He stated that the earlier information received from him was "rather good" 35% of the time. Following receipt of the telephone call, he made no inquiries or investigation and applied immediately to the judge for the search warrant. He specifically stated that he gave no "indications" to the judge other than what was set forth in the affidavit.
Before Judge Crane, the State contended that the search warrants were properly issued and that the searches pursuant thereto were valid. It did not suggest before him, nor does it suggest before us, that if the warrants were improperly issued the searches may nevertheless be sustained as incident to arrest or on some other ground resting on urgent necessity. See Eleuteri v. Richman, 47 N.J. Super. 1, 21 (App. Div. 1957), aff'd 26 N.J. 506, cert. denied Eleuteri v. Furman, 358 U.S. 843, 79 S. Ct. 52, 3 L. Ed. 2 d 77 (1958); State v. Smith, 37 N.J. 481, 492 (1962); cf. Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2 d 327 (1959); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69
L. Ed. 543 (1925). Admittedly the officers had ample time to investigate and ascertain facts which would either support or dissipate their suspicions. And they had ample opportunity to make full showing under oath in support of their applications for warrants authorizing searches of the private dwellings in question. Judge Crane found that the affidavits which embodied the only showings before the issuing judges contained conclusions without supporting facts and were not legally sufficient to support the constitutionally required finding of probable cause. 72 N.J. Super., at p. 516. Having determined that the warrants were improperly issued and that the ensuing searches were invalid, he ruled that the illegally obtained evidence was to be suppressed under Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), and the recent cases in this court which have recognized the applicability of Mapp to prior searches. State v. Scrotsky, 38 N.J. 14, 16 (1962); State v. Smith, supra, 37 N.J., at pp. 488-489; State v. Valentin, 36 N.J. 41, 43 (1961). See Traynor, "Mapp v. Ohio At Large In The Fifty States"  Duke L.J. 319, 338-342; Bender, "The Retroactive Effect of An Overruling Constitutional Decision: Mapp v. Ohio," 110 U. Pa. L. Rev. 650 (1962).
In dealing with the issue at hand it is vital that we view the matter in proper perspective and with the right sense of value. The requirement for search warrant is not a mere formality but is a great constitutional principle embraced by free men and expressed in substantially identical language in both our federal and state constitutions. It has its roots deep in English and colonial history. See Lasson, "The History and Development of the Fourth Amendment to the United States Constitution," 55 Johns Hopkins University Studies in Historical and Political Science No. 2 (1937); Fraenkel, "Concerning Searches and Seizures," 34 Harv. L. Rev. 361, 362 (1921); Frankfurter, J., dissenting in Harris v. United States, 331 U.S. 145, 155, 67 S. Ct. 1098, 1103, 91 L. Ed. 1399, 1408 (1947). The highly abusive infringements of freedom and privacy which were the incidents of
general warrants and writs of assistance allowing arrests and searches on suspicion alone were only too well-known to the American settlers.*fn1 They wisely insisted on the inclusion, in the Bill of Rights, of the provision in the Fourth Amendment that the right of the people to be secure against unreasonable searches and seizures shall not be violated and that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Although New Jersey's original Constitution in 1776 omitted a similar provision, this was remedied in its 1844 Constitution, and more recently in its 1947 Constitution. Art. I, par. 7.
The Amendment sets a firm standard with respect to the essentials of a search warrant.*fn2 Under its terms the [39 NJ Page 257] search warrant is not to issue except upon probable cause, supported by oath or affirmation. The crucial determination is to be made not by the police officer but by a neutral issuing judge. Before the judge is in a position to make his determination for issuance, he must properly be made aware of the underlying facts or circumstances which would warrant a prudent man in believing that the law was being violated. See Dumbra v. United States, 268 U.S. 435, 441, 45 S. Ct. 546, 548, 69 L. Ed. 1032, 1036 (1925). Legal proof sufficient to establish guilt is, of course, not required; but suspicion and good faith on the officer's part, without more, will not suffice. See Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 171, 4 L. Ed. 2 d 134, 138 (1959). As the Supreme Court succinctly put it in Nathanson v. United States, 290 U.S. 41, 47, 54 S. Ct. 11, 13, 78 L. Ed. 159, 162 (1933), a search warrant may not issue unless the issuing magistrate can find ...