Conford, Freund and Sullivan. The opinion of the court was delivered by Freund, J.A.D.
Defendant appeals from his conviction of bookmaking on the results of baseball and football games, in violation of N.J.S. 2A:112-3. The State's case rested mainly upon evidence gained from a search of a Newark apartment pursuant to a warrant issued by a magistrate. This evidence tended to show not only that bookmaking operations had been conducted on the premises, but also that defendant had been present immediately prior to the time when the police entered the apartment.
On this appeal defendant contends, inter alia , that this evidence was obtained as a result of an unlawful search and seizure because the affidavit given by the Newark police alleging probable cause to believe bookmaking activities were being conducted on the premises in question, the basis upon which the issuance of the search warrant rested, was in fact insufficient to constitute probable cause. We find, and the State in effect concedes, that this is so. The affidavit was in a form which has been held to be defective for failing to state the underlying facts and circumstances which gave rise to the suspicion and belief held by the officers who obtained the issuance of the warrant. See State v. Macri , 39 N.J. 250, 260-263 (1963).
Defendant was tried in the Essex County Court on September 27-29, 1961. Defense counsel made no attempt to have the incriminating evidence suppressed nor did he at any time argue to the trial court that the search which turned up that evidence had been made without probable cause. Although the trial took place more than a year before the adoption and effective date of our rules of court concerning search warrants and motions to suppress evidence allegedly obtained by illegal search and seizure, see R.R. 3:2A, it followed the decision of the United States Supreme Court in Mapp v.
Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), by more than three months.
In Mapp the United States Supreme Court held that evidence obtained by a search and seizure which violated the rights protected by the Fourth Amendment to the Federal Constitution is, by virtue of the Fourteenth Amendment, inadmissible in a state court. In the Mapp case itself, however, the incriminating evidence had been seized not only without a search warrant, but also under circumstances which indicated a flagrant disregard for the defendant's rights. See Mapp v. Ohio, supra , 367 U.S. , at pp. 644-645, 81 S. Ct. , at pp. 1686-1687, 6 L. Ed. 2 d 1081; see also State v. Smith , 37 N.J. 481, 490-492 (1962). In the present case a magistrate had issued a search warrant pursuant to an affidavit by police which alleged "just and reasonable cause to suspect and believe" gambling activities were being carried on in the premises to be searched. The particular type of affidavit used was not held to be insufficient by our Supreme Court until February 1963, in State v. Macri, supra , more than a year after the conclusion of this trial. Nor were there circumstances here which indicated flagrant or abusive actions by the Newark police who conducted this raid.
The State contends that defendant's failure to make timely objection to the admission of the evidence in question precludes his raising the argument of unlawful search and seizure for the first time on this appeal. It is argued that the period of three months which had elapsed between the handing down of the Mapp decision and this trial was more than adequate to give notice to defendant of his rights regarding the suppression of that evidence. Defendant asserts that at the time of the trial the full implications of the Mapp case were not yet fully understood by the bar.
In State v. Doyle , 40 N.J. 320 (1963), our Supreme Court was presented with a case where the defendant failed to raise the question of unlawful search and seizure, also made pursuant to a search warrant, not only at the trial level but on the subsequent appeal to the Appellate Division as well. The
point was raised for the first time on argument before the Supreme Court. There the trial had commenced before the announced decision of Mapp but ran nine days beyond that date. The Doyle case was remanded for the taking of testimony as to why the defendant had failed to raise the issue of illegal search and seizure at both the trial and Appellate Division levels, and as to whether the search and seizure could be validated on the grounds of having been made incident to a lawful arrest.
At oral argument we interrogated trial counsel for defendant. He stated that he had not known of the existence of the Mapp decision at the time of the trial, that shortly thereafter his attention was called to an article discussing the case, but even then he did not appreciate that Mapp applied to cases where a search warrant had been issued. Defendant contends that at the time of the trial it was common for prosecutors to assert that Mapp applied only to cases of "brutish, flagrant or rude actions." This is borne out by the Macri case itself, where the State raised that exact contention and for the first time our Supreme Court specifically rejected that argument. See State v. Macri, supra , 39 N.J. , at pp. 264-266. Even at that late date (February 1963) Chief Justice Weintraub, in a concurring opinion, stated that he was "unsure of the reach of Mapp." State v. Macri, supra , 39 N.J. , at p. 266.
We do not condone the failure of counsel to raise, prior to or at the trial, the issue of unlawful search and seizure three months after the decision in Mapp. But in view of the substantial constitutional rights of which defendant may have been deprived and of the distinctions between the facts in Mapp and the present case, we conclude that defendant should not be prejudiced by his counsel's misapprehension ...