Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
Defendant appeals a conviction in the Passaic County Court after a jury trial on a charge of maintaining a gambling resort in violation of N.J.S. 2A:112-3.
The primary ground of appeal is the denial of defendant's pretrial motion to suppress certain evidence as having been obtained by the police as the result of an illegal search and seizure. A full factual exposition of the attendant circumstances was not had on the motion because the trial judge who heard it denied it, before the proofs were complete, on the ground that the defendant was without standing to raise the question. However, additional evidence filling out the factual picture on the search question was adduced during the trial (which was held before a different judge). Most of the relevant facts have been stated in defendant's brief, and the State's brief agrees that this court should now decide the issue on that set of facts, which is conceded to be accurately set forth therein. We proceed to do so, but supplementing the recital of facts with so much of that testimony of the State's witnesses as is undisputed.
The essential facts are these. Defendant LaDuca was the proprietor of a barber shop in Passaic. On July 2, 1962 a search warrant was issued to search the shop and its occupants on an affidavit by a State Police officer couched in purely conclusionary terms that certain bookmaking paraphernalia were believed to be "located" therein. The insufficiency of the affidavit, and the consequent invalidity of the warrant, State v. Macri, 39 N.J. 250 (1963), are not challenged by the State. The warrant was delivered by the county prosecutor to county detectives Reiser and Saginario for execution. Armed therewith, they proceeded to the barber shop premises, Saginario entering the front door and Reiser the rear. They locked both doors to prevent anyone from leaving or entering the premises, and then, after showing the warrant to an employee barber then in charge, thoroughly searched the premises. Defendant was not in the shop at the time, but
two patrons in addition to the employee were. These men were required to empty their pockets, but nothing incriminating was found by the detectives.
While the detectives were thus fruitlessly engaged, one Torrieri came to the shop and tried to gain entrance. Finding the door locked, he was about to turn away when Reiser opened the door and called him in. Reiser showed Torrieri the search warrant and asked him to empty his pockets. Torrieri complied and produced a betting slip together with seven dollar bills wrapped therein. Saginario then obtained Torrieri's signature on a written consent to search his car parked nearby. That search revealed a racing program and a duplicate of the slip which was produced from his pocket in the shop. During the trial Torrieri, called as a witness by the State, testified he had come to the shop on the occasion in question to "place a bet with Sam" and that he had done so on a number of prior occasions.
The pretrial motion to suppress all the items of evidence mentioned above having been denied, they were all admitted in evidence against defendant during the trial.
We first deal with the ground of denial of the pretrial motion -- lack of standing of defendant, owner of the premises where the illegal search was conducted, to complain of the seizure of property from another person. This was patently groundless. The search was aimed at defendant, and it was his privacy which was invaded. The warrant designated his shop. He therefore had standing to complain of the evidential use against him of anything obtained by the police as a result or in the course of that search. Jones v. United States, 362 U.S. 257, 261, 80 S. Ct. 725, 4 L. Ed. 2 d 697 (1960); and cf. State v. Bibbo, 83 N.J. Super. 36 (App. Div. 1964). A defendant is entitled to suppression of evidence seized in an unlawful search if he has either a "proprietary, possessory or participatory interest in the purloined or bludgeoned evidence, or, alternatively, in the place where it was found' (emphasis added). Maguire, Evidence of Guilt, p. 216 (1959); Jeffers v. United States, 88 U.S. App. D.C. 58,
187 F.2d 498, 500 (1950), affirmed United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 59 (1951); State v. Wade, 89 N.J. Super. 139 (App. Div. 1965).
The State also contends that since "the search and seizure of the betting slips took place on the premises of the barber shop which is a public place by statute and the common law because members of the public had the right to enter, including the police," therefore it follows that a seizure from Torrieri without a warrant is "not a search within the protection of the Fourth Amendment which is limited to and protects invasion against the police from unreasonable searches and seizures in private homes and places." The argument is completely without foundation.
It has never been held that a place of business of a private person or concern open to the public for purposes of doing business is beyond the protection of the Fourth Amendment, although the nature of a place of business as open to the public clearly is a factor in adjudging the reasonableness of an entry thereon by police officers. Private places of business, although open to such members of the public as had business with the owners, have repeatedly been held, or have been assumed without argument to the contrary, to be within the protection of the Fourth Amendment. Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S. Ct. 153, 75 L. Ed. 374 (1931); United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877 (1932). In United States v. DiCorvo, 37 F.2d 124, 132-133 (D.C. Conn. ...