Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
This is an appeal by the State, pursuant to leave granted, from orders entered in the Monmouth County Court in two separate and unrelated bookmaking cases granting motions of defendants Masco and Dalton, respectively, to suppress all of the evidence seized by the police in raids on two private dwellings made following the issuance of search warrants. The cases were consolidated for the purpose of appeal.
In both cases the affidavits submitted to the warrant-issuing judge contained facts indicating that horse race bets were being taken by an unknown man over telephones located in the one-family dwelling houses involved.
In State v. Masco the warrant described with particularity the place to be searched, namely, a dwelling house located at 5 Ash Drive in Neptune Township occupied by one Ralph Hoffner (Masco's father-in-law). It described the property to be seized as "consisting of pads, papers, slips, memorandum, pens, pencils, monies and other bookmaking paraphernalia." It commanded the police:
"* * * to enter and search * * * the dwelling herein above named and the person of those found within, for the property specified * * * and to take into your possession all such specified property which may be found in the said dwelling and on the person of those found within * * *."
In State v. Dalton, the warrant also described with particularity the place to be searched -- a dwelling house located at 132 Washington Street in Long Branch, occupied by Marian E. Owen (Dalton's mother). The language in the warrant describing the property to be seized and commanding the search of the place and the persons found within was identical with that contained in the warrant issued in the Masco case.
When the state police officers entered the Hoffner dwelling house on May 18, 1967, Masco, who was the only occupant, was observed coming out of a small office-type room on the second floor in which the police found a telephone and an adding machine. One officer was detailed to receive incoming telephone calls. Masco was arrested and searched. A racing publication, ball-point pen and $74 found on his person were seized by the police. During the period that followed the police received telephone calls placing bets.
On June 7, 1967 state police entered the Owen residence in Long Branch where defendant Dalton was observed standing next to a dining room table upon which they found a telephone, two racing publications, a ball-point pen and sheets of paper containing horse race bets totaling $228. An officer manned the telephone and thereafter "accepted bets" of $358. Dalton was arrested and searched and the police seized $15.20 found on his person.
In both cases the court concluded that the language in the warrants authorizing the search of persons found within the premises lacked the specificity required by the Fourth Amendment of the United States Constitution and R.R. 3:2 A -3 relating to the issuance of search warrants. The court ruled that the warrants were totally void ab initio and suppressed not only the evidence found on the persons of Dalton and Masco but all evidence seized.
The State contends that the court erred in holding that the warrants were wholly invalid. It alleges that the existence of probable cause to believe crimes were being committed required for issuance of the warrants is not in dispute; that the premises to be searched were described with particularity; that the property to be seized was specifically described as gambling paraphernalia, and that the warrants contained the necessary requisites for a search and seizure under the Fourth Amendment.
In support of the court's ruling defendants argue that warrants authorizing the search of persons found on the premises, without naming ...