Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
Defendant was found guilty in the Municipal Court of the City of Newark of possession of lottery slips. N.J.S. 2A:170-18 (Disorderly Persons Act). No stenographic record was taken of those proceedings. He appealed the conviction to the Essex County Court. There, a trial de novo was conducted, at the conclusion of which he was again convicted of the offense specified. Hence this appeal.
In advance of the County Court trial defendant moved to suppress evidence obtained by members of the Newark police department as a result of a search of his person without a warrant, and the consequent seizure of lottery paraphernalia. The motion was denied for reasons set forth in a written opinion of Judge Crane which appears at 73 N.J. Super. 486 (Cty. Ct. 1962).
At the trial the motion was renewed. It was again denied. The sole ground of appeal is that the evidence in question was the product of an unreasonable search and seizure, condemned in Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), as a violation of the Fourth Amendment of the U.S. Constitution.
The facts are not in dispute. On November 24, 1961 at about 2:40 P.M. Peter J. Farley, a detective on duty at the Fifth Precinct Police Station in Newark, answered a telephone call. The caller declined to identify himself, or to come to the police station. The detective did not and could not identify him beyond saying that the voice was that of a male, and sounded to him "like he was a white person." The message was that "a white man would be in a white Buick sedan at the corner of Nye Avenue and Dewey Street in 15
minutes and that he would have lottery numbers on him." The testimony was that this corner was "at least" three-quarters of a mile from the Fifth Precinct Station at Hunterdon and West Bigelow Streets. According to the detective, the only available places to obtain a warrant were either the municipal court or the Essex County Court, located between one and two miles away.
Upon receiving the call Detective Farley, accompanied by another officer, drove to the corner of Nye Avenue and Dewey Street and were "just planting" themselves in position when a white Buick sedan driven by a white man came upon the scene, and stopped. The police identified themselves, asked the operator to step from the car, placed him under arrest, and searched his person. They found a sealed white envelope containing adding machine tapes which, in the opinion of Detective Farley, were paraphernalia used in connection with the operation of a lottery.
In denying defendant's motion that the evidence be suppressed Judge Crane concluded that the arrest of Scharfstein was invalid, hence that the search and seizure was not an incident of a lawful arrest. The judge noted that the offense of possession of lottery slips is at most a misdemeanor under N.J.S. 2A:121-3, and went on to say that to justify an arrest for a misdemeanor or a disorderly persons offense (the charge here made) it is required that the police officer should "have viewed or observed with his own senses" the commission of the offense. See Webb v. State , 51 N.J.L. 189 (Sup. Ct. 1889). In so holding, the judge evidently was influenced by the distinction frequently made between the authority to arrest on "probable cause," where the arresting officer has reason to believe that a "felony" within the common law of arrest has been committed and, in the case of a misdemeanor, the restriction of authority to arrest, to an offense committed in his presence.
We agree with Judge Crane that the arrest was not a valid one. Indeed, the State does not argue affirmatively to the contrary. However, in light of the present state of our law,
we deem it unwise to rest our determination of this aspect of the case on the common law distinction drawn by the judge. In State v. Smith , 37 N.J. 481, 493-494 (1962), Chief Justice Weintraub discussed at some length the common law felony-misdemeanor dichotomy, and the relationship between it and the high misdemeanor-misdemeanor framework of our statutory criminal law. He pointed out, inter alia , that "the denomination of a crime as a misdemeanor or high misdemeanor is not the solvent" of whether the offense is a felony "within the common law of arrest," and also observed that in other jurisdictions, for sundry purposes, "a felony is deemed to be an offense for which a sentence to the state penitentiary could be imposed." Such a sentence, of course, could be lawfully ordered in this State for the commission of the statutory misdemeanor of possession of lottery paraphernalia.
While finding that the arrest of Scharfstein was invalid for want of probable cause, Judge Crane nevertheless held that there was "probable cause" for making the search independent of the arrest, and thus that the search was not unreasonable within the meaning of the Fourth Amendment of the ...