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State v. Padavano

Decided: November 27, 1963.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN PADAVANO, DEFENDANT-APPELLANT



Gaulkin, Foley and Lewis. The opinion of the court was delivered by Gaulkin, S.j.a.d.

Gaulkin

Defendant moved to suppress "the admission of certain slips of paper which were removed from a 1955 Oldsmobile Automobile of the defendant, without a search warrant." After hearing the State's witnesses (the defendant presented no evidence), the county judge denied the motion, and defendant appeals.

The judge announced the following findings of fact and conclusions of law at the end of the hearing:

"I find the facts to be that police officers while at a certain intersection in the town of Kearny observed the vehicle operated by the defendant in this case make a fast and wide turn around the corner from Columbia Avenue onto Chestnut Street. Noticing this the officers instituted pursuit and apprehended the driver, the defendant in this case, John Padavano, about a half block away. When he was stopped he was asked for his license. He produced same, both the driver's license and owner's card. And it was subsequently noted that a discrepancy appeared in relation to the address. While this was going on one of the officers noted two parking tickets, and without any statements made by anybody the driver of the car reached for the parking tickets and handed them to the officer. In connection with the parking tickets the officers questioned the driver as to whether or not there were any more and the driver said, 'Go ahead and check

if you want to.' The police decided to make the arrest after the discrepancies appeared in the registration and driver's license address information.

Subsequent to that decision to make an arrest both police officers got into the front seat of the car and the defendant Padavano was put in the rear seat of the car. Detective Crookall decided to start up the car and push back the seat. And it was obvious to me why he would have to do that, because of his much heavier build which he has compared to the driver of the car. While in the act of pushing back the seat he testified that he looked down and there under his eyes he noted the yellow sheets of paper and he recognized certain numbers thereon. He subsequently testified that he was aware from his experience as a member of the gambling squad, with which group he had worked for the past five years, that this constituted gambling paraphernalia. And, of course, the defendant subsequently was charged as a result therewith.

It is my opinion that the initial arrest made by the police officers was a valid one.

It is also my opinion that the finding of the numbers slips was purely inadvertent or accidental and has nothing to do with the question of unreasonable search and seizure, and therefore there has been no violation of either the Fourteenth Amendment of the United States Constitution or Article I, Paragraph 7, of the New Jersey Constitution."

Defendant challenges these findings. He contends that the detectives stopped his automobile and arrested him on the mere pretext that he had violated the Motor Vehicle Act, their real purpose being to search the automobile, and that they then made a thorough search of the automobile which resulted in the finding of the lottery slips.

Our task is not to weigh the evidence, but to determine whether the findings of the trial judge have sufficient support in the testimony, bearing in mind that the trial judge saw and heard the witnesses. State v. Taylor , 81 N.J. Super. 296 (App. Div. 1963); Ker v. California , 374 U.S. 23, 31-32, 83 S. Ct. 1623, 10 L. Ed. 2 d 726 (1963). Cf. State v. Zuzulock , 39 N.J. 276, 281 (1963).

The testimony was that Detectives Crookall and Wyllie had received an anonymous "tip," as a result of which they stationed themselves in a squad car in the vicinity of Chestnut Street and Columbia Avenue and waited for defendant. After about ...


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