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State v. Gillman

Decided: February 9, 1971.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GEORGE GILLMAN, DEFENDANT-APPELLANT



Goldmann, Leonard and Mountain. The opinion of the court was delivered by Mountain, J.A.D.

Mountain

[113 NJSuper Page 303] Defendant appeals from a conviction of having violated N.J.S.A. 54:40A-32, which forbids transporting unstamped cigarettes on the public highways unless in possession of invoices or delivery tickets.

On March 3, 1967 defendant was arrested by the Livingston Township police and shortly thereafter charged with a violation of the statute mentioned above. At the time of his arrest he was driving a Lincoln sedan to which was attached a trailer. The Livingston police had received information from two New York detectives, who had trailed defendant's car from North Carolina, that he was carrying a large quantity of unstamped cigarettes. Actually 3,003 cartons were discovered in the trailer and seized as contraband.

A hearing was held on defendant's motion to suppress and the motion was denied. A later application to reconsider the motion was also denied. Defendant stood trial before the municipal magistrate and was convicted. His conviction was affirmed by the Essex County Court.

Although a number of issues are raised on appeal, defendant's chief argument is concerned with the validity of the search warrant which issued shortly after his apprehension. It was as a result of the execution of this warrant that the contraband articles were discovered.

Probable cause for the issuance of the warrant must rest upon the testimony of Livingston Township detective Albert Fachet. His sworn statement was to the effect that two out-of-state detectives advised him that the vehicle, which they accurately described, had proceeded from North Carolina to a probable terminal point in New Jersey and that it contained contraband cigarettes. He had also been told -- or knew -- that the name of the operator of the car was George Gillman who was said usually to carry a gun in his car.

Acting upon this information, he spotted the car and in conjunction with other law enforcement officials followed it and stopped it, ostensibly for failing to have a stop light. Defendant, then driving the car, was unable to produce any registration for the trailer. Upon being requested to allow the officers to inspect it, he declined to open the trailer door.

Defendant first claims the warrant to have been improperly issued because Detective Fachet's statement did not set forth in detail the ultimate source of all the information recounted.

As has been stated, "* * * 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." State v. Kasabucki , 52 N.J. 110, 117-118 (1968).

It is important to note that the information contained in the detective's sworn statement consisted in part of his own knowledge and observations and in part of information supplied to him by other law enforcement officers. Information coming from law enforcement colleagues should be entitled to greater credence than knowledge supplied by an informer who lurks in or near the underworld. The courts have sensibly agreed that where information is so imparted by another law enforcement officer, it is to be received with benevolent assumptions not appropriate to information offered by a typical informer, generally of the criminal class, who has reward in mind. This point was noted in State v. Kasabucki , above, where the information was received from the First Deputy Commissioner of the New York City Police Department. The rule has been followed elsewhere.

The controlling principle seems to be that it is not necessary for the officer making the arrest to know of the reliability of the informer or to be, himself, in possession of information sufficient to constitute probable cause provided that he acts upon the direction of or as a result of communication with a superior or brother officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest. [ People v. Horowitz , 21 N.Y. 2d 55, 286 N.Y.S. 2d 473, 233 N.E. 2d 453 (Ct. App. 1967)]

See also People v. McKiernan , 56 Misc. 2d 845, 290 N.Y.S. 2d 976 (Cr. Ct. N.Y. City 1968); People v. Smith , 31 App. Div. 2d 863, 297 N.Y.S. 2d 225 (App. Div. 1969). In Mullaney v. State , 5 Md. App. 248, 246 ...


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