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State v. Boyd

New Jersey Supreme Court


Decided: April 19, 1965.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID BOYD, DEFENDANT-APPELLANT

For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.

Per Curiam

[44 NJ Page 392]

Defendant was convicted of knowingly possessing lottery slips in violation of N.J.S. 2A:121-3. The conviction was affirmed in the Appellate Division in an unreported opinion. An appeal was taken then directly to this Court under R.R. 1:2-1(a).

The appeal to this Court without the grant of certification is based upon the contention that a question arising under the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution is involved. The claim is that certain incriminating evidence was taken from defendant's automobile as the result of an illegal search and seizure in violation of the cited sections of the two Constitutions. Consequently, the evidence, later introduced at the trial, he urges should have been suppressed on his pretrial motion.

It is undisputed that the search of Boyd's automobile and the seizure of the lottery paraphernalia were made pursuant to a search warrant issued by a county judge. He claims, however, that the affidavit on which the warrant was issued contained insufficient facts to justify a prudent man in believing that the law was being violated, and to describe the "place" to be searched. We had occasion in State v. Macri, 39 N.J. 250 (1963), and State v. Zuzulock, 39 N.J. 276 (1963), to review at length the requirements of the Federal and State Constitutions with respect to search warrants, and to promulgate standards to be met in the way of recital of facts in affidavits submitted to the appropriate judge to support the application for such warrants. In those cases we recognized that usually the affidavits are prepared in the midst and haste of criminal investigations, and by police officers and detectives who are laymen not possessed of the expertise in draftsmanship to be expected of a member of the bar or bench. Consequently a common sense approach must be taken in appraising the sufficiency of the factual allegations of the affidavit on which the request for the warrant is based. If the recitals would provide reasonable support for the belief of a

[44 NJ Page 393]

prudent man that the law is being violated at a place reasonably identified, they will be deemed sufficient. Rigid and technical demands for elaborate specificity and precision are neither serviceable nor required in this area of criminal law enforcement. See United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2 d 684 (1965); State v. Zuzulock, supra; R.R. 3:2A-6(b).

Examined in the light of the cases cited, the affidavit is clearly adequate to meet the standards expressed. We agree with the Appellate Division in that regard and consequently affirm the judgment of conviction.*fn1

[44 NJ Page 394]

Although the State argued the appeal on the merits, and made no motion for dismissal on the ground that no substantial constitutional issue was presented which would justify an appeal as of right, the propriety of defendant's procedure requires comment. See State v. Schneider, 33 N.J. 451, 452 (1960); State v. Pometti, 12 N.J. 446, 450 (1953). The occasion arose recently to discuss the increasing number of direct appeals being taken under R.R. 1:2-1(a) where the asserted constitutional issue has been clearly and conclusively settled. See Tidewater Oil Company v. Mayor and Council of the Borough of Carteret, 44 N.J. 338 (1965). In such cases the proper avenue to be employed in seeking a review in this Court is petition for certification, not appeal; direct appeals are subject to dismissal. In this case the principles for testing the sufficiency of affidavits on which search warrants are based have been fully settled by State v. Macri, supra, and a number of others which followed it.

As was indicated in Tidewater, supra, at this advanced stage of the law in the area, it would be a most rare case which would present a question of sufficient constitutional dimension to justify appeal from a decision of the Appellate Division. If a direct right of appeal is not "clear beyond doubt, the proposed appellant should petition for certification, outlining fully his claim to an appeal as of right, as well as any other appropriate reasons indicating why this court should allow further review even if it believes that the case does not present a sufficient constitutional question. * * * If a proper constitutional question does appear," certification will be granted. "If it does not, an appeal may be allowed through certification for other reasons."

In this case we have considered the merits, and, as indicated, find no legal basis for disturbing the judgment of conviction. But, for the reasons stated, in the future review in similar cases should be sought by certification.

Affirmed.


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