Gaulkin, Foley and Lewis. The opinion of the court was delivered by Gaulkin, S.j.a.d.
[83 NJSuper Page 41] The State appeals from an order suppressing evidence seized by virtue of a search warrant.
The trial judge held that the affidavit upon which the search warrant had been issued, by another judge, was insufficient to establish probable cause and that the search warrant should not have been issued.
The affidavit was by a sergeant in the "Department of Police, Bergen County." He swore that he believed the premises in question were being used for the operation of a lottery, and that his belief was based on the following facts:
"The above-mentioned dwelling house is owned and occupied by Thomas Principe, who has a record of 5 prior criminal convictions and 2 other arrests. He is known to the Jersey City Police as a 'strong-arm' man for a criminal syndicate operation. Within the last two months, members of the Bergen County Police Department have kept the premises under observation and have observed three men, casually dressed, entering the cellar of the premises at about 5:00 P.M. daily except Sundays. These men arrive in a 1962 Plymouth sedan, registration No. FWS 122, N.J., and remain in premises until 10:30 P.M. to 11:00 P.M. Immediately after their arrival, the cellar blinds and windows are closed. The men enter and leave the premises without any relation to whether the Principes are at home or not. On one occasion after their arrival at the Principe home, they unloaded from the Plymouth and carried into the cellar, two steamer trunks, a desk lamp, two folding aluminum tables, and small packages. They have been observed on other occasions to enter the premises with what appeared to be laundry shirt bags.
I contacted the Motor Vehicle Department and found that motor vehicle plates No. FWS 122, N.J. are registered in the name of Anthony M. Tanzola, 429 South 18th St., Newark, New Jersey. Tanzola's driver's license No. T0507-05374-10062, lists United Roofing Co. of Colbern St., Newark, N.J. as his place of employment. A check with the Police Department of the City of Newark revealed that there is no firm or street of that name in the City of Newark. Tanzola's driver's license description matches the description of one of the three men who have been observed to enter and leave the premises in the manner described above. Tanzola uses the alias of Michael Delmore and has a prior criminal record of 5 convictions and one other arrest on a gambling charge.
On July 10, 1962, I kept the above premises under observation commencing at about 4:30 P.M. At 5:32 P.M. two men arrived and entered the premises by means of the cellar. They used a key to enter. Suspect No. 1 is in his 20's, approx. 5' 9", 165-170 lbs., short black hair; Suspect No. 2 was about 45-50 years of age, approx. 200 lbs., grey hair, receding hair line. They arrived on foot. Immediately after they arrived, a third man arrived. Suspect No. 3 was approx. 45-50 years of age, 5' 7", black-greying hair, wore glasses,
and weighing approx. 150-160 lbs. As soon as they entered the cellar, the blinds and windows were closed. At 6:25 P.M., the 1962 Plymouth N.J. Reg. No. FWS 122, pulled into the driveway adjacent to the house and a man fitting Tanzola's description got out of the driver's side. He walked around to the passenger side and opened the front door. He removed a brownish-color bag, approximately 8 x 12", which appeared to be quite full and bulging. He then entered the house by the cellar door with the bag.
Subject No. 1 has been observed to enter the premises in the manner described above for the past two weeks.
Investigation has disclosed that Principe has made expensive alternations to the premises and that he and members of his family drive late model automobiles, although he has no known employment."
We think this affidavit set forth enough to justify the issuance of the search warrant, and that the court erred in suppressing the evidence.
To begin with, it must be remembered that when one judge passes upon the issuance of a search warrant by another judge the judgment of the issuing judge is conclusive, unless there was clearly no justification for the issuing judge's conclusion that the affidavit showed probable cause. Merritt v. United States , 249 F.2d 19, 20 (6 Cir. 1957). In State v. Zuzulock , 39 N.J. 276, 281 (1963), the Supreme Court quoted the following with approval from ...