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State v. De Simone

Decided: March 27, 1972.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ALEX DE SIMONE, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

Defendant, whose guilt is plain, insists his conviction for possession of lottery slips must be upset because, he claims, the proof was illegally obtained. The evidence was acquired by a search of his person under a warrant directing a search of a specifically described automobile "and all persons found therein." Defendant was a passenger in the car. The trial court denied the motion to suppress. The Appellate Division reversed the conviction, holding there was no basis for a warrant for a search of passengers notwithstanding the existence of a basis for a search of the automobile. One judge dissented, saying that although "all persons found therein" was not sufficiently descriptive to satisfy the Fourth Amendment, he would remand the matter to determine whether, apart from the warrant, the officer reasonably believed defendant was participating in the criminal affair at the time of the search. The State appealed to us as of right. R. 2:2-1(a).

The majority of the Appellate Division cited State v. Masco, 103 N.J. Super. 277 (App. Div. 1968). There the search warrant issued on a showing of probable cause that horse race bets were being taken by an unknown man in a one-family dwelling. The warrant directed a search, for gambling paraphernalia, of the dwelling "and the person of those found within" it. The search of the individual found on the premises was sustained as incidental to a valid arrest based upon probable cause the officer found at the scene, but the warrant was thought to be invalid insofar as it authorized a search of persons found on the premises. The basis of that view was not a lack of probable cause but rather that the warrant was a "general" warrant because it did not describe the persons to be searched with the specificity required by the Fourth Amendment.

On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously

would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them.

As to probable cause, it must be remembered that the showing need not equal a prima facie case required to sustain a conviction. No more is demanded than a well-grounded suspicion or belief that an offense is taking place and the individual is party to it. State v. Burnett, 42 N.J. 377, 386-388 (1964); State v. Davis, 50 N.J. 16, 23-24 (1967). And, with regard to the Fourth Amendment demand for specificity as to the subject to be searched, there is none of the vice of a general warrant if the individual is thus identified by physical nexus to the on-going criminal event itself. In such a setting, the officer executing the warrant has neither the authority nor the opportunity to search everywhere for anyone violating a law. So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment. The evil of the general warrant is thereby negated. To insist nonetheless that the individual be otherwise described when circumstances will not permit it, would simply deny government a needed power to deal with crime, without advancing the interest the Amendment was meant to serve.

And, of course, in this connection an automobile is different from a dwelling. To begin with, the power to search must be equal to the distinctive threat of this mobile instrumentality of crime. State v. Boykins, 50 N.J. 73

(1967). Further, presence in an automobile is more apt to suggest complicity in the illegal use to which the car is then being put than would be presence in a building in which some illegality may be occurring. While some innocent person could happen to call upon the occupant of such real property, it is unlikely that a driver of a car pursuing a criminal venture would take with him someone not involved who could be a witness against him. It would be surprising if a passenger just happened to be in an automobile en route to commit a holdup. Conceivably that could be, but probable cause is not dissipated by some distant possibility. We repeat that the question is not whether the circumstances would be enough to take a case against the passenger to the jury; we are speaking only of a basis for a search.

And it is well to note that the real issue is whether the truth revealed by the search shall be suppressed and a false judgment of not guilty entered. Although not so limited in its application, the suppression rule was invented to deter insolence in office. See State v. Bisaccia, 58 N.J. 586 (1971); State v. Kasabucki, 52 N.J. 110 (1968). Needless to say there is no official arrogance when the officers place the facts before a magistrate for his view rather than search and seize upon their own assessment of the factual pattern when it accrues. Since it furthers the constitutional purpose to encourage applications to a magistrate, we should take a view of the problem which will make that course feasible.

Upon the facts of the present case the search warrant is, in our view, unassailable. The affidavits revealed that following a tip from the F.B.I. the local authorities learned by their investigation that a lottery operation was using a parked, unattended automobile as a "drop" for pickup men in a lottery operation. By evident prearrangement, other vehicles came in quick succession, stopping near that car, the drivers then dropping brown paper bags into it. Some ...


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