For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
On February 4, 1964 Detective De Luca, of the State Police, submitted an affidavit to Judge Crane of the Essex County Court which disclosed the following:
"2. I have received information from anonymous informant who has proven reliable on 16 prior occasions, that a store located at 31 Avon Place Newark, New Jersey is being used for illegal Lottery Operations by a Joseph Walters. Numerous persons enter the premises, a small candy and ice cream store between the hours of 3:45 P.M. and 4:30 P.M. every day allegedly for the purpose of a Lottery Operation. In the past month the Essex County Prosecutor's Office has received 3 other anonymous telephone calls relative to the same operation.
3. On January 22, 1964, Lt. Charles Dughi, and Det. Jerry Kelly and the Essex County Prosecutor's Office placed the premises of the candy store at 31 Avon Place under surveillance and observed 35 persons enter and leave the store between 4:00 P.M. and 4:20 P.M. These persons remained in said store for approximately 2 to 3 minutes and left without any visible evidence of a purchase being made.
4. On January 24, 1964 Det. Richard Roberts of the Essex County Prosecutor's Office placed the candy store at 31 Avon Place under observation between the hours of 3:50 P.M. and 4:30 P.M. and he observed numerous vehicles parked and double parked and the operators enter the store and leave minutes later without visible purchases.
5. On January 29, 1964 Det. Richard Roberts again placed 31 Avon Place under observation between 3:55 P.M. and 4:35 P.M. and he observed numerous vehicles park and double park and enter the store and leave minutes later without purchases. He also observed pedestrians walk in and out of the store without making purchases.
6. On January 30, 1964 Det. Richard Roberts made the same observations as on January 29, 1964, Paragraph No. 5.
7. On January 31, 1964 Det. Richard Roberts made the same observations as on January 29, 1964, Paragraph No. 5.
9. I have been a member of the New Jersey State Police for 16 years and have investigated approximately 200 gambling complaints in various parts of the State of New Jersey and based upon my experience of the fact that the informer has proven reliable on 16 prior occasions, the fact that numerous persons frequent the candy store at 31 Avon Place, Newark, between 4:00 P.M. and 4:30 P.M. without making any purchase, the fact that several of these persons have gambling records. I have just and reasonable cause to suspect and believe and do suspect and believe that the following goods, and property to wit: slips, money, papers, records, memoranda, and paraphernalia used in connection with the crime of lottery are concealed in the premises of the candy store at 31 Avon Place, City of Newark, County of Essex, and persons found therein, and I further have just and reasonable cause to suspect and believe that said property is being used in connection with a violation of laws commonly known as lottery contrary to the Statute and in such case made and provided.
I therefore pray that a warrant be issued for the candy store at 31 Avon Place, Newark, N.J. and persons found therein and be searched." (Emphasis added).
Based upon said affidavit a search warrant was issued for "a confectionery store known and designated as No. 31 Avon Place, in the City of Newark, County of Essex, New Jersey."
Pursuant to said warrant a search was conducted at a store in a building subsequently revealed to be 35 Avon Place. As a result of the evidence obtained from the search the Grand Jury indicted the defendants.
Defendants thereupon moved to suppress this evidence on the ground that the articles were seized as a result of an illegal search and seizure. Defendants' motion was granted. The State ...