For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Proctor, J.
[60 NJ Page 596] Defendant, Edward Muldowney, was indicted for unlawful possession with intent to utter and expose to the view of another obscene or indecent pictures in violation
of N.J.S.A. 2A:115-2.*fn1 Prior to trial defendant's motion to suppress evidence seized as a result of a search of his home and for the return of such property was denied. Thereafter, defendant was convicted by a jury. He received a suspended sentence of between two and three years conditioned upon his payment of a $500 fine and obtaining psychiatric treatment. The Appellate Division in an unreported opinion affirmed the conviction. Defendant appealed to this Court. R. 2:2-1(a).
The sufficiency of the evidence is not in dispute and the relevant facts are quite simple. On November 18, 1968, Thomas Watson was indicted by a federal grand jury for using the mails for the transmission of pornographic films. That same day Postal Inspector Similes accompanied by Detective Queiroz of the Camden Police Department arrested Watson at his home in Camden. Upon his arrest Watson cooperated with the officers and showed them two films, "Swimsuit Girl" and "Phantom F////--," by the use of a projector. According to the officers the films depicted males and females engaged in sexual acts and various forms of perversion. Watson made a written statement that these films and others found in his house were purchased or received on consignment from the defendant. An affidavit of Detective Queiroz incorporating this statement was the
basis for the issuance of a search warrant by a judge of the City of Camden Municipal Court on the same day. The warrant directed the search of defendant's premises for "certain property used as a means of committing a misdemeanor in violation of the laws of the State of New Jersey, to wit: 2A:115-2, Uttering, exposing, or selling obscene literature or pictures."*fn2
Later that afternoon Queiroz, Similes and another postal inspector searched defendant's home pursuant to the warrant. The officers seized 177 films and a number of pictures,
writings, and others items, including film projectors, a Polaroid camera, and a transistor radio. None of the films were viewed by the officers prior to the seizure.
At the trial four of the films taken from defendant's home and one film, "Swimsuit Girl," given to the police by Watson, were introduced in evidence and their content viewed by the jury. In addition to the films other items taken from defendant's home including magazines, photographs, booklets, papers listing the films and two incriminating letters were admitted in evidence. Defendant objected to their admission.
Thomas Watson testified for the State that he had received the film "Swimsuit Girl" from the defendant. He said that he had obtained films from the defendant three or four times within the course of a month, receiving approximately 15 films. He said he had given the defendant a $10 or $15 deposit on "Swimsuit Girl," a color film, and had agreed to pay $20 more for it. He testified he usually paid $20 to the defendant for black and white films.
Defendant testified on his own behalf that he was a collector of films. He said he merely gave Watson duplicates which Watson promised to replace with films of his own. He admitted that in the interim Watson gave him money as security for the films. He also admitted he traded some films with others besides Watson through advertisements in a magazine.
On this appeal defendant first urges that his conviction should be reversed because the materials taken from his home should have been suppressed as they were seized pursuant to a defective search warrant. We agree. The Fourth Amendment of the United States Constitution, which applies to the states through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), provides that "no Warrants shall issue, but upon probable cause, ...