Botter, J.s.c. (temporarily assigned).
[116 NJSuper Page 51] On this motion to suppress evidence I advised counsel at oral argument that I would grant defendants' request to cross-examine the detective upon whose affidavit search warrants issued. The prosecutor asserts that such a hearing cannot be held, but that probable cause must be judged by the affidavit alone.
Since this issue has not been decided in this State*fn1 or by the United States Supreme Court,*fn2 I have adjourned the proceedings to give the prosecutor an opportunity to seek leave to appeal from my order.
Two search warrants were issued by a Superior Court judge based upon the affidavit of a detective of the New Jersey State Police Organized Crime Task Force Bureau. One warrant authorized the search of a specific one-story house in West New York, New Jersey, and persons on the premises; the other authorized the search of an automobile and an unnamed but described person previously seen operating the auto in the vicinity of the premises. The raid, seeking evidence and paraphernalia pertaining to illegal lottery and bookmaking operations, was apparently successful and defendants were indicted for the suspected crimes.
The detective's affidavit recites in part that:
I, the deponent * * * did receive information from a reliable informant, whose information in the past has proven to be reliable, and which did result in gambling arrests. Said informer did advise the deponent that over telephone number 867-3138 a male who answers said telephone by saying "Willie" is conducting a gambling operation over said telephone, namely bookmaking and/or lottery, and informer having advised the deponent that he had placed illegal gambling wagers to "Willie" over said telephone.
The affidavit also recites the results of a surveillance of the house in which the telephone was located. The surveillance was on October 3, 6, 7 and 8, 1969. This recital describes comings and goings of unnamed persons between 10:45 A.M. at the earliest and 7:50 P.M. at the latest on the days mentioned. For example, on October 3 a male left the side door of a nearby tavern, the Laffman Bar, at 10:45 A.M. and entered the house carrying "a yellow pad and newspaper." Shortly thereafter a second male arrived carrying
"a brown paper bag," and then a third male came out of the side door of the Laffman Bar and entered the house. This third male then left shortly thereafter and from that time on made six round trips between the tavern and the house, staying in each place for varying intervals. On one trip he placed "slips of white paper into a slot on the door." On two other trips he delivered a small bag and a white envelope to the house. On the afternoon of October 3 a fourth man arrived in a certain vehicle and entered the house carrying a brown paper bag and then went to the tavern. He drove off later and again returned to the house. Other persons, not described, entered the house at 7:30 P.M.
The first two men who entered the house on October 3 entered again on October 6 at 10:45 A.M., carrying newspapers. At 11:00 A.M. the third male again left the nearby tavern and entered the house. On these occasions each man opened the door with his own key. Nothing else was observed on October 6. On October 7 similar but fewer comings and goings were observed as on October 3, the most suspicious single act being the delivery of a white envelope by the "third man" from the tavern to the house at 2:15 P.M. On the last day, October 8, similar comings and goings were observed, without any slips, bags or envelopes recorded, except that the first two men arrived carrying a newspaper. On the basis of these observations and the information supplied by the "reliable informant" the detective concluded that illegal gambling operations were being conducted at the house and over the telephone there, namely, "bookmaking and/or lottery."
On the motion to suppress, defendants urged that the affidavit on its face was insufficient to establish probable cause.*fn3 At oral argument this was rejected. The hearsay
report of the "reliable informer," combined with the surveillance, made out a case for the warrant, although neither the hearsay nor the surveillance was sufficient by itself. United States v. Harris , 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971); Jones v. United States , 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1962); State v. Mercurio , 113 N.J. Super. 113 (App. Div. 1970), aff'd o.b. 57 N.J. 367 (1971); State v. Mack , 114 N.J. Super. 513 (App. Div. 1971). See also State v. Kasabucki , 52 N.J. 110 (1968). Cf. Spinelli v. United States , 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas , 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
Thereupon defendants requested permission to examine the detective (who was present in court at the time of the motion) to test his credibility solely as to the report of the secret informer. That the informer's identity is entitled to complete protection in the course of the inquiry was conceded by defendants. State v. Burnett , 42 N.J. 377 (1964); ...