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State v. Mercurio

Decided: May 18, 1970.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MICHAEL MERCURIO, DEFENDANT-RESPONDENT



Sullivan, Carton and Halpern. Carton, J.A.D., (dissenting).

Per Curiam

The State, pursuant to leave granted, appeals from an order of the county court suppressing evidence seized by the State in a search of certain premises made under a search warrant issued by a municipal judge.

We are here concerned with a situation where the State submitted the information it had obtained as to violation of the gambling laws to a judge who found probable cause to exist and issued a search warrant.

In this situation, State v. Kasabucki , 52 N.J. 110, 117 (1968), admonishes that "Once the judge has made a finding of probable cause on the proof submitted and issued a search warrant, a reviewing court, especially a trial court, should pay substantial deference to his determination."

The State concedes that the affidavit is barely adequate but relies on the holding in Kasabucki, supra , that "* * * 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." [at 116] The court went on to say:

Reversed.

CARTON, J.A.D., (dissenting). The narrow issue involved here is whether a search warrant resting upon information supplied by an anonymous informer was issued upon probable cause. Both the Fourth Amendment of the United States Constitution and N.J. Const. Art. I, par. 7 insuring the right of people against unreasonable search and seizure make that determination one of constitutional dimension by requiring that such search warrants shall not issue except upon probable cause obtained by oath or affirmation. Such determination is entrusted, not to a police officer, but to a neutral judicial officer who may issue the warrant only after he is "made aware of the underlying facts or circumstances which would warrant a prudent man in believing that the law was being violated." State v. Macri , 39 N.J. 250, 257 (1963).

The United States Supreme Court has enunciated specific requirements which control the issuing judge's review of such warrant applications. The supporting affidavit must contain an adequate recitation of both the underlying circumstances from which the informer concluded the law was being violated and the basis upon which the maker of the affidavit concluded the informer was credible or his information reliable. Aguilar v. Texas , 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, 729 (1964). If the informer's tip

fails to satisfy both these requirements, the requirement of probable cause can only be satisfied if, after a scrutiny of the entire affidavit, the corroborative information supplied by the affiant "would permit the suspicions engendered by the informant's report to ripen into a judgment that a crime was probably being committed." Spinelli v. United States , 393 U.S. 410, 418, 89 S. Ct. 584, 590, 21 L. Ed. 2d 637, 645 (1969).

Viewed in the light of these constitutional requirements, it is clear that the affidavit in this case falls far short of the minimum required for a finding of probable cause.

First, the information supplied by the informer details no underlying circumstances at all which would warrant a belief that gambling was taking place on the premises. The affidavit contains only the following bald conclusion of illegal activity:

[T]wo white males, between the age of 30 to 40 years of age, about 5-9 to 5-11" tall, between 175 lbs. and 195 lbs. usually wearing black car coats are taking horse race bets in their 12 ...


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