Sullivan, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
Defendant, who had previously been convicted of the unlawful sale of narcotics, was found guilty by a jury on an indictment charging him with the illegal possession of a firearm in violation of N.J.S.A. 2A:151-8. The indictment resulted when police found a loaded revolver in defendant's apartment during a search conducted pursuant to a search warrant.
The principal contention of defendant on this appeal is that his pretrial motion to suppress evidence obtained by the police should have been granted.
The affidavit submitted to the warrant issuing judge was executed by Bruno Czerniak, an investigator of the county prosecutor's office, who expressed a belief that defendant was engaged in bookmaking and was unlawfully carrying a gun. His belief was based on information furnished separately by two unidentified informants. He stated that his first informant, "who in the past has furnished me with reliable information relating to the commission of crimes and unlawful activities," told him that defendant was engaged in bookmaking operations, that he had personally observed defendant engage in such transactions, and that he had seen a book in which defendant made records of his operations on defendant's person, in his automobile, and in his apartment. The informant also said that in order to protect himself from interference in carrying on his gambling activities defendant carried a hand gun on his person and in his car. The affiant stated that the other informant, "whose information has proved reliable in the past," said that on one occasion he observed defendant open his jacket and exhibit a pistol lodged in the waistband of his trousers and that defendant told the informant that he always carried the pistol on his person.
Defendant first contends that the affidavit upon which the search warrant was based was insufficient to support a finding of probable cause to believe that a crime was being or had been committed. Relying upon Spinelli v. United
States , 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) and Aguilar v. Texas , 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), he argues that the affidavit was deficient because the affiant's statement that his informants were reliable was a conclusion unsupported by any details of his past association with them or that any information they had previously furnished had resulted in criminal complaints, indictments or convictions. He also argues that the informants' statements did not show specific details of the offenses committed by the defendant or the dates, places or persons with whom defendant allegedly was engaging in gambling transactions.
In Aguilar , a search warrant issued upon an affidavit of police officers who swore only that they had received reliable information from a credible person and believed that narcotics were illegally stored on the described premises. The court held the affidavit inadequate for two reasons, (1) it failed to set forth any of the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant's conclusion that the narcotics were where he said they were, and (2) the affiant-officers did not attempt to support their claim that their informant was credible or his information reliable. Spinelli reaffirmed the Aguilar two-pronged test.
We conclude that the affidavit in this case meets the test referred to in Aguilar and Spinelli. Here the informants' reports were based on their personal observations of defendant's unlawful activities. They corroborated each other with respect to defendant's unlawful possession of a gun. The credibility of the informants was further established by the investigator's previous experience with them in that their information had proved reliable in the past. See Jones v. United States , 362 U.S. 257, 269-272, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). A realistic and common sense reading of the affidavit would support the independent judgment of the warrant issuing judge that probable cause existed for the warrant. United States v. Ventresca , 380 U.S. 102, 108,
85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); cf. State v. Kasabucki , 52 N.J. 110, 122 (1968). We are satisfied that the affidavit established probable cause and justified the issuance of the warrant.
Defendant also argues that the judge who heard the motion to suppress erroneously denied him the right to offer testimony to show that the search warrant had been improvidently issued. At the hearing defendant sought to examine Czerniak alleging that he expected to show that the warrant issuing judge had been imposed upon, that Czerniak did not believe the law had been violated when he executed the affidavit, and that the raid on defendant's apartment had been conducted with the hope that evidence would be found relating to a homicide case then pending in Passaic County. The judge refused to permit the examination ruling that in determining whether probable cause existed for the issuance of the warrant he could only consider the sufficiency of the affidavit as presented to the issuing judge.
Defendant contends that he should have been permitted to examine Czerniak to show Czerniak had not acted in good faith, to ascertain whether the affiant had misrepresented any facts to the issuing judge, or had made an independent effort to verify the information furnished by the informants, and further, to determine ...