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State v. Kasabucki

Decided: June 28, 1968.


On appeal from the Superior Court, Appellate Division, whose opinion is reported in 96 N.J. Super. 173.

For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.


[52 NJ Page 114] On May 24, 1966, a county judge of Union County issued a warrant to search defendant Kasabucki's dwelling at 614 Jefferson Avenue, Elizabeth, New Jersey. The warrant was based upon (1) an affidavit presented to the court by Robert C. Ward, a county detective connected with the prosecutor's office, and (2) oral testimony of Ward under oath supporting the contents of the affidavit. The warrant was executed the next day, the search of the premises being conducted by law enforcement officers. The search revealed substantial physical evidence that bookmaking activities were being carried on there. Kasabucki was then indicted for that offense, N.J.S. 2 A:112-3. Thereafter he moved to suppress the evidence seized upon the ground that Detective Ward's affidavit was insufficient to satisfy the probable-cause requirement of the Fourth Amendment of the United States Constitution and Article I, par. 7 of the New Jersey Constitution, and therefore the warrant and the resulting search was invalid. A county judge, other than the one who issued the warrant, heard the motion. Unlike his colleague, he found the factual statements of the affidavit

inadequate and entered an order suppressing the seized evidence. R.R. 3:2 A -6. The Appellate Division granted the State leave to appeal, and after hearing argument, affirmed. 96 N.J. Super. 173 (1967). On the State's application we certified the matter. 50 N.J. 288 (1967).

As we have noted on a number of occasions, the Federal and State Constitutions do not bar all searches and seizures. They bar only those that are "unreasonable."*fn1 State v. McKnight, 52 N.J. 35, filed June 3, 1968; State v. Davis, 50 N.J. 16, 22 (1967); State v. Mark, 46 N.J. 262, 275 (1966).*fn2 A basic purpose of the framers of this important right was to protect the citizen against unwarranted invasion of his home by police officers. The intention was to impose an obligation on police officers, except in unusual situations which need not be discussed here, not to search a person's home until they have presented their estimate of probable cause for the search to the detached scrutiny of a neutral judge, and obtained his formal authorization to do so. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2 d 576, 585 (1967); United States v. Ventresca, 380 U.S. 102, 105-106, 85 S. Ct. 741, 13 L. Ed. 2 d 684, 687 (1965).

When the police officer does not rely on his own evaluation of facts, but submits them to the independent judgment of a judicial officer for a determination as to whether they add up to probable cause, a search pursuant to a warrant issued by a judge cannot be equated with "insolence in office" or abuse of the officer's police power, nor can it be said reasonably that the citizen's Fourth Amendment

security rests only in the discretion of the police. Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436, 440 (1948). Eleuteri v. Richman, 26 N.J. 506, 514 (1958). Thus when the adequacy of the facts offered to show probable cause is challenged after a search made pursuant to a warrant, and their adequacy appears to be marginal, the doubt should ordinarily be resolved by sustaining the search. United States v. Ventresca, supra, 380 U.S., at p. 109, 85 S. Ct. 741, 13 L. Ed. 2 d, at p. 689; State v. Mark, supra, 46 N.J., at p. 273. That is because the warrant provides clear evidence of the legitimacy of the officer's purpose. The decisions bespeak the preference accorded a search authorized after the facts and inferences therefrom have been subjected to neutral judicial consideration and found to constitute probable cause for it.

Probable cause is a flexible, nontechnical concept. It includes a conscious balancing of the governmental need for enforcement of the criminal law against the citizens' constitutionally protected right of privacy. It must be regarded as representing an effort to accommodate those often competing interests so as to serve them both in a practical fashion without unduly hampering the one or unreasonably impairing the significant content of the other. State v. Davis, supra, 50 N.J., at p. 24. Thus, although incapable of precise definition, the term has been construed to signify less evidence than would be required to establish guilt of the crime for which the warrant is sought. Brinegar v. United States, 338 U.S. 160, 173-176, 69 S. Ct. 1302, 93 L. Ed. 1879, 1889-1890 (1949). It means something more than "raw unsupported suspicion." It is a suspicion of guilt that is well-grounded; a reasonable basis for a belief that a crime has been or is being committed. State v. Davis, supra, 50 N.J., at pp. 23-24; State v. Burnett, 42 N.J. 377, 386 (1964). A finding of probable cause may rest upon evidence not competent at a criminal trial. Jones v. United States, 362 U.S. 257, 270, 80 S. Ct. 725, 4 L. Ed. 2 d 697, 707 (1960); Draper v. United States, 358 U.S. 307, 311-312,

79 S. Ct. 329, 3 L. Ed. 2 d 327, 331 (1959). Hearsay is an adequate basis for the finding and the issuance of a warrant, so long as there is something coupled with the hearsay to give it reasonable credit, something which gives it the appearance of trustworthiness. Jones v. United States, supra, 362 U.S., at p. 272, 80 S. Ct. 725, 4 L. Ed. 2 d at 709; State v. Burnett, supra, 42 N.J., at p. 387; State v. Burrachio, 39 N.J. 272, 275 (1963).

When a police officer seeking a search warrant presents the basis therefor in affidavit form to a judge for evaluation on the issue of probable cause, the judge's approach must be a practical and realistic one. The officer's statements must be looked at in a common sense way without a grudging or negative attitude. There must be an awareness that few policemen have legal training and that the material submitted to demonstrate probable cause may not be described with the technical nicety one would expect of a member of the bar. Moreover, the judge should take into account the specialized experience and work-a-day knowledge of policemen. State v. Contursi, 44 N.J. 422, 431 (1965). The facts asserted must be tested by the practical considerations of everyday life on which reasonably prudent and experienced police officers act. Brinegar v. United States, supra, 338 U.S., at p. 175, 69 S. Ct. 1302, 93 L. Ed., at p. 1890. Once the judge has made a finding of probable cause on the proof submitted and issued the search warrant, a reviewing court, especially a trial court, should pay substantial deference to his determination. In fact, another trial judge of equal jurisdiction should regard as binding the decision of his brother that probable cause had been sufficiently shown to support a warrant, unless there was clearly no justification for that conclusion. State v. Tanzola, 83 N.J. Super. 40, 43 (App. Div. 1964).

The above observations make plain that no mathematical formula exists for application either by a trial or appellate court in deciding whether a search warrant was supported by probable cause. Each case depends upon a sensitive

appraisal of the circumstances shown to the issuing judge. Consequently we turn to an examination of the affidavit submitted in support of the warrant in this case.

Detective Ward's affidavit reveals that on May 16, 1966 the Union County Prosecutor received a copy of a letter from the First Deputy Commissioner of the New York City Police Department to the Chief of Police of the City of Elizabeth, N.J. (copy of which was attached to the affidavit). It advised that

"Confidential information has been obtained by this Department that telephone Area Code 201-1351-2904 is being used for illegal gambling purposes ...

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