This is a motion by defendant to suppress evidence obtained as a result of a search of her person on the ground that it was made under a general warrant.
On March 13, 1975, at 4 P.M., officers of the Jersey City Police Department entered the T & J Tavern pursuant to a search warrant. The purpose of the search was to uncover evidence of an alleged illegal lottery operation. The warrant authorized a search of the basement, the first floor where the tavern was located and the second-floor apartment over the tavern. The warrant also directed a search of certain named persons, the bartenders, barmaids and "all persons present" in the tavern.
In his application for the search warrant the detective-affiant stated that he received information from a source proven reliable in the past that illegal gambling activities were being carried on at the premises by one named Terry, various employees of his and others, some of whom were specifically identified by name. Prior to the issuance of the warrant police surveillance of the premises took place over several days. It revealed the presence of certain known gambling offenders and other unnamed persons known only by sight entering and leaving the premises. Police noted activity between the side door of the tavern and the door
leading to the upstairs apartment where, it was suspected, number slips were taken to "be worked on".
By virtue of the warrant the police searched the defendant, who was in the tavern at the time of the raid. She was not an employee of the T & J Tavern nor was she mentioned by name or description in the affidavit in support of the search warrant. The search of defendant uncovered a small note pad containing alleged illegal lottery play and cash in the amount of $11.05. She was arrested and charged with a violation of N.J.S.A. 2A:121-3(a) and (b), i.e. , working for a lottery business and possessing lottery paraphernalia.
Defendant concedes that probable cause existed for the issuance of the warrant in question as to the premises to be searched but challenges the legality of the warrant as it relates to her on the ground that blanket authorization to search all persons found on the premises is in violation of her constitutional right to be secure from such police action.
The requisites for a valid search and seizure pursuant to a warrant are contained in the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution. The Fourth Amendment reads, in pertinent part:
[N]o Warrants shall issue, but upon probable cause , supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [Emphasis supplied]
Language similar to the above is found in the search and seizure provision of our State Constitution.
Whether a warrant permitting the search of unnamed persons at a specified place is sufficient or not depends upon the existence of probable cause to believe persons present are involved in the criminal event. State v. DeSimone , 60 N.J. 319, 327 (1972). "On principle, the sufficiency of a warrant to search persons identified only by ...