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State v. Zurawski

Decided: December 21, 1965.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MERDIE ZURAWSKI, DEFENDANT-APPELLANT



Gaulkin, Labrecque and Brown. The opinion of the court was delivered by Brown, J.A.D.

Brown

[89 NJSuper Page 489] Defendant, charged with bookmaking, appeals from the denial of his motion to suppress evidence seized by Linden police without a search warrant in the tavern of which he was the licensed owner. The question presented is whether a search of licensed premises and seizure of gambling paraphernalia therein, without a search warrant, is valid as against the tavern owner, and whether it may be used to support a criminal prosecution against him.

The order appealed from recites that the motion below was heard on a stipulation of facts. If so, the stipulation is not incorporated in the record before us. However, the briefs seem to agree on the following facts. On May 12, 1964, shortly after 1:00 o'clock in the afternoon, three detectives of the local police department entered the tavern. One of them informed defendant that they were making an inspection on behalf of the municipal alcoholic beverage control board. They proceeded to search the place although they had no warrant. A lottery slip was discovered under a stack of towels in the pantry, and then more slips were found beneath boxes stored on a shelf in the kitchen. All space involved was within the "licensed premises" as described in defendant's application for his plenary retail consumption license. He was arrested forthwith.

N.J.S.A. 33:1-35 provides in part:

"Investigations, inspections and searches of licensed premises may be made without search warrant by the director, his deputies, inspectors or investigators, by each other issuing authority and by any officer."

Defendant argues that this enabling statute "was intended only to facilitate investigations and searches for the sole purpose of ferreting out violations of the Commissioner's rules with the end of suspension or revocation of the privileges of liquor licenses." Therefore, says defendant, the statutory power was misused here because the search was conducted "to uncover a violation of the criminal law," and thus his constitutional right of privacy was unlawfully invaded.

The Legislature has imposed upon the municipality the responsibility for enforcement of the law governing retail liquor licenses. N.J.S.A. 33:1-24. Concern for strict regulation at the municipal level is further reflected in the statute by this direction:

"To the end that local police and other enforcing agencies shall enforce this chapter in the interest of economy and effective control, all officers shall use all due diligence to detect violations of this chapter and shall apprehend the offenders * * *." N.J.S.A. 33:1-71

In order to qualify for a license, defendant signed and acknowledged a form containing the following:

"The applicant consents that the licensed premises and all portions of the building containing same, including all rooms, cellars, out-buildings, passageways, closets, vaults, yards, attics, and every part of the structure of which the licensed premises are a part and all buildings used in connection therewith which are in his possession or under his control, may be inspected and searched without warrant at all hours by the Director of the Division of Alcoholic Beverage Control, the Director of the Division of Taxotion, their duly authorized inspectors, investigators and agents and all other officers."

The unique position of a liquor licensee was outlined in Blanck v. Mayor, etc., of Magnolia, 38 N.J. 484 (1962):

"From the earliest history of our State, the sale of intoxicating liquor has been dealt with by the Legislature in an exceptional way. Because of its sui generis nature and significance, it is a subject by itself, to the treatment of which all the analogies of the law, appropriate to other ...


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