For reversal -- Chief Justice Weintraub and Justices Jacobs, Proctor, Hall and Haneman. For affirmance -- None. The opinion of the court was delivered by Hall, J.
[44 NJ Page 424] The defendant's conviction for bookmaking, N.J.S. 2A:112-3, was reversed by the Appellate Division and a new trial ordered on the ground that the betting slips found on his person and admitted in evidence against him
were obtained by an illegal search and seizure. We granted certification on the State's petition. 42 N.J. 291 (1964).
No search or arrest warrant having previously issued, the vital question is whether the search was incidental to a lawful arrest, which depends, in turn, on the arresting officer's having probable cause to believe that the crime was being or had been committed by the defendant. This was raised, in accordance with the prescribed practice, by defendant's motion in advance of trial to suppress the seized evidence. R.R. 3:2A-6(a). The prosecution presented the testimony of the arresting officer who detailed the circumstances in line with its burden to establish validity in the case of a warrantless search in this type of situation. Cf. State v. Scrotsky, 39 N.J. 410, 412 (1963); State v. Naturile, 83 N.J. Super. 563, 569 (App. Div. 1964). The defendant did not testify and offered no proof whatever. The judge found probable cause on the uncontradicted evidence and denied the motion.
At the trial of the indictment before a different judge, the State's proofs consisted of essentially the same testimony offered on the motion plus expert identification and interpretation of the seized slips as recorded bets on horse races. In addition, there was police testimony that the defendant, upon being asked after his arrest what he was doing with the slips (which were not established as being in his handwriting), shrugged his shoulders and replied, "What can I say?" When the slips were offered in evidence, the motion to suppress was renewed and very properly rejected summarily. The defendant did not take the stand and presented no evidence in his behalf.
Before the Appellate Division, the defendant urged not only the invalidity of the search, but also contended that his motion for acquittal at the end of the State's case should have been granted even if the seizure were legal. The argument was that the proofs, circumstantial in nature, were consistent with an hypothesis of innocence that he was a mere bettor, notwithstanding the conceded availability also of the inference that he was a bookmaker. The Appellate Division
did not reach the point, but we need comment only that the thesis is unquestionably erroneous, State v. Fiorello, 36 N.J. 80 (1961), cert. denied 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2 d 396 (1962), and that the prosecution's evidence in its entirety, giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, was clearly sufficient to raise a jury question and, standing unrefuted, for the jury to find guilt. State v. Romeo, 43 N.J. 188, 207-208 (1964), cert. denied 379 U.S. 970, 85 S. Ct. 668, 13 L. Ed. 2 d 563 (1965); State v. Fiorello, supra, 36 N.J., at pp. 90-92; State v. O'Shea, 16 N.J. 1, 4 (1954). Since that evidence, however, developed entirely from the circumstances of the seizure and its fruits, we are returned to the matter of the legality of the search as the decisive question.
The State's witness on the motion to suppress was an experienced police officer, Lieutenant Manghisi, supervisor of the plainclothes squad of the Second Precinct in the City of Newark. He testified that on the day in question, he and three other detectives were on routine patrol in an area of the precinct in which complaints of gambling activity had been received. This routine activity consisted of inspections of taverns, luncheonettes, and certain other places that were under investigation and surveillance for suspected gambling. One of these places was Holly's restaurant or luncheonette, although there was no complaint specifically directed toward this establishment. He and a colleague entered the place.*fn1 Noticing the door of one of the two pay telephone booths was closed, he walked to it. The light in the booth was on and he recognized the seated occupant as the defendant. He said that he knew Contursi by sight, and was aware that his squad had recently arrested him as a participant in a dice game. He
further testified that he had been told by informers who had been reliable in the past that the defendant could possibly be involved in horse race gambling activities in the area.
The lieutenant went on to say that when he first observed the defendant in the booth, he was talking on the phone and had a piece or pieces of paper in one hand. He could not hear the conversation nor could he see what was on the paper. When Contursi saw the officer looking at him from outside the booth, he stopped talking, hung up the receiver and slipped the hand which had been holding the paper under his left thigh between his leg and the booth seat. He then stood up, at the same time opening the booth door and sliding the hand which had been between his leg and the seat into his pants pocket. When he came out of the booth, he pulled this hand out of his pocket and both hands were empty. The lieutenant immediately ordered him to empty his pockets, which produced the five slips identified at the trial as a record of race bets as well as $73 in currency. He was then taken to the precinct headquarters and charged with bookmaking.
As has been indicated, the motion judge decided in the State's favor on the motion to suppress. Pursuant to his obligation whether the proofs be in conflict or not, he recited the basic law, made underlying findings of fact and, applying the facts to the governing law, spelled out the existence of probable cause. The Appellate Division could not locate support in the record for two of the fact findings (that "the officers received information or complaint of gambling at the premises in question " and that the defendant "upon noting the officers * * * apparently became excited."), which it deemed significant for the judge's conclusion. Saying that it ...