Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
The State appeals from an order of the Essex County Court suppressing certain evidence, seized as the result of a search of defendant's motor vehicle without a search warrant. We granted leave to appeal. Thereafter on application of the State and with the consent of defendant, we remanded the matter to permit the taking of further testimony, meanwhile retaining the appeal.
The single question presented is whether the search was "unreasonable," and thus the fruits of it are barred as admissible evidence on the trial of the indictment, by the guarantees of freedom from unreasonable searches and seizures contained in the Constitutions of the United States and of this State.
As we recently noted in State v. Scharfstein , 79 N.J. Super. 236, 241 (App. Div. 1963), the facts of each individual case must be examined and a judicial determination made of whether the circumstances justified a reasonable belief by the searching officer that a crime had been or was being committed.
We are in accord with the findings of fact and conclusions of law filed by Judge Matthews, which follow:
"This Court granted an order suppressing evidence in the matter of the State of New Jersey v. Harry M. Klein , Indictment No. 172-61, and an appeal was taken by the State to the Appellate Division of the Superior Court, Docket No. A1086-61. Upon motion of the plaintiff-appellant State of New Jersey, and with the consent of the defendant-respondent Harry M. Klein, the matter was remanded to the Essex County Court for the purpose of taking whatever additional relevant testimony might be offered by the State or the defendant, with the opportunity of the Trial Judge to file supplemental memoranda. A hearing was subsequently held and testimony was presented by Detective John P. Reilly.
Detectives Reilly and Cahill of the Newark City Police Department were assigned to the Gambling Investigation Division. On February 24, 1961, at approximately 11:30 A.M., they left Police Headquarters on Franklin Street to investigate a complaint that bookmaking was being carried on at a place called the Hawthorne Pleasure Club on Hawthorne Avenue. About one block from Police Headquarters, Detective Reilly went to a public phone booth and there received a call from an informer who told him that a man operating a red panel truck with the name 'E. Klein' or 'H. Klein' on its side was going from house to house accepting lottery bets while fronting as a bakery delivery service. This information had no connection with the bookmaking complaint which the detectives were on their way to investigate. Detective Reilly testified that he had known this informer for eight years and had received information from him at least fifty times, and that he considered the information to be ninety-five percent good, as convictions had resulted.
The detectives went to the Hawthorne Pleasure Club, and about 1:30 P.M., upon completing their check, as they stepped out of the door, Detective Reilly saw a red panel truck with the name 'H. Klein' on its side going east on Hawthorne Avenue. The detectives, recognizing the truck as being similar to the one described by the informer, entered their car, and proceeded after the truck. The truck turned a corner and the detectives lost sight of it, and when they came upon it again, it was parked and the driver was absent. The detectives did not stop, but went on further and waited until the truck came along again, at which time they stopped it. They identified themselves and told Mr. Klein that he was in the lottery business which he denied, and that they intended to search the truck to which he shrugged his shoulders. A search of the truck was conducted by the officers and a slip of paper with lottery bets on it was found in the ash tray. Mr. Klein was also searched but no slips were found on his person. The detective also testified that no search warrant was procured; that the informer had not given him any information as to any definite route or particular stops made by the truck; that but for the information received they would not have had any reason for stopping the truck.
The Federal Constitution and the Constitution of New Jersey guarantee that 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. It is basic in the law of search and seizure that a search without a warrant may be carried on only under exceptional circumstances. McDonald v. United States , 335 U.S. 451 [69 S. Ct. 191, 93 L. Ed. 153] (1948). An exceptional circumstance which may permit a search without a warrant is the commission of a crime in the presence of the officers, United States v. Rabinowitz , 339 U.S. 56 [70 S. Ct. 430, 94 L. Ed. 653] (1950), or where the officers have reasonable grounds to believe that the defendant was in the act of committing a crime at the
time they stopped him and conducted the search. Brinegar v. United States , 338 U.S. 160 [69 S. Ct. 1302, 93 L. Ed. 1879] (1949). As it is conceded that the officers in this matter had not procured a search warrant, the issue to be decided, under the facts presented, is whether the detectives had reasonable grounds to believe that this defendant was in the act of committing a crime at the time they stopped the truck and conducted the search. State v. Watson , 73 N.J. Super. 477 (Cty. Ct. 1962). Probable cause exists 'if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.' Henry v. United States , 361 U.S. 98, 102 [80 S. Ct. 168, 4 L. Ed. 2 d 134] (1959). However, the search is not made legal by the fact that it turns up illicit fruits. 'In law it is good or bad when it starts and does not change character from its success.' United States v. Di Re , 332 U.S. 581 [68 S. Ct. 222, 92 L. Ed. 210] (1948).
The judicial determination of whether probable cause existed, which is made after the fact, should be based upon the knowledge present in the minds of the detectives immediately prior to, or contemporaneously with, the search. In Brinegar , Justice Rutledge in referring to ...