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State v. Tunnel Citgo Services

Decided: May 3, 1977.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TUNNEL CITGO SERVICES AND DE LUXE OIL CO., INC., DEFENDANTS-APPELLANTS



Matthews, Seidman and Horn. The opinion of the court was delivered by Horn, J.A.D.

Horn

On August 8, 1975, as part of an ongoing investigation by the State for suspected violations of the New Jersey Motor Fuel Tax Law, investigators employed by the State Criminal Justice Division secured two search warrants authorizing them to enter and search respective premises of defendants Tunnel Citgo Services and DeLuxe Oil Co., Inc., and to seize certain records of each defendant.

Defendants moved to suppress the material seized and also for the return of said materials. At the conclusion of an evidential hearing held on the motion the judge upheld the validity of the search warrants as well as the seizures and denied the motion to suppress except as to certain enumerated items which were ordered to be returned to the respective defendants. Defendants appeal from that portion of the judge's order denying the suppression and return of various items.

Defendants contend that seizure of their records violated their Fourth Amendment rights for three reasons. The first reason asserted is that the warrants were general in describing the items to be seized. The two warrants, which are substantially identical, recite that on the respective premises are maintained:

It is settled that the description of items to be seized need only be as specific as the circumstances will allow. James v. United States , 416 F.2d 467, 473 (5 Cir. 1969), cert. den. 397 U.S. 907, 90 S. Ct. 902, 25 L. Ed. 2d 87 (1970); United States v. Auterbridge , 375 F. Supp. 418 (S.D. of N.Y. 1974). The records to be seized in the case at bar were those pertaining to possible violations of the Motor Fuel Tax Law. It would have been impossible to have the warrants recite with particularity each document to be seized. This is not a case where the items to be seized are easily identifiable and distinguishable, as in a case, for example, of stolen merchandise. The nature of the items defied more particular description. See Andresen v. Maryland, supra , 96 S. Ct. at 2748-2749, n. 10; United States v. Jacobs , 513 F.2d 564, 567 (9 Cir. 1974); United States v. Fuller , 441 F.2d 755 (4 Cir. 1971), cert. den. 404 U.S. 830, 92 S. Ct. 73, 74, 30 L. Ed. 2d 59 (1971); James v. United States, supra. The following quotation from Andresen v. Maryland , is apt:

Petitioner also suggests that the specific list of the documents to be seized constitutes a "general" warrant. We disagree. Under investigation was a complex real estate scheme whose existence could be proved only by piecing together many bits of evidence. Like a jigsaw puzzle, the whole "picture" of petitioner's false pretense scheme with respect to Lot 13T could be shown only by placing in the proper place the many pieces of evidence that, taken singly, would show comparatively little. The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect's possession. * * * [96 S. Ct. at 2748-2749, n. 10]

Likewise, in the present case the investigation is somewhat complex. The government agents must establish violations by piecing together information contained in defendants' numerous records.

Defendants refer to Stanford v. Texas , 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965), for support. In Stanford a search warrant was issued under a Texas statute to seize "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas * * *" (at 478-479, 85 S. Ct. at 508). The warrant was found to be general and hence invalid. This case is distinguishable in that it concerned First Amendment rights. The test of particularity of the warrant is much more strict when First Amendment rights are involved than in other incidents of search warrants. Stanford, supra at 485, 85 S. Ct. 506; United States v. Scharfman , 448 F.2d 1352 (2 Cir. 1971), cert. den. 405 U.S. 919, 92 S. Ct. 944, 30 L. Ed. 2d 789 (1972); United States v. Auterbridge, supra at 419; State v. Muldowney , 60 N.J. 594, 601 (1972). Stanford has been particularly distinguished on this point -- that the books were seized for the ideas they contained and hence First Amendment rights were involved. United States v. Fuller, supra at 760. In the present case no First Amendment rights were involved and hence a lesser requirement of particularity in the descriptions in the warrants is required. While writings were seized in the instant case, they concern commerce, not literature, and hence the First Amendment does not come into play. California Bankers Ass'n v. Shultz , 416 U.S. 21, 62, 94 S. Ct. 1494, 39 L. Ed. 2d 812 (1974).

We discount the holding of People v. Einhorn , 75 Misc. 2d 183, 346 N.Y.S. 2d 986 (Sup. Ct. 1973), which defendants claim supports their position. In that case defendant was suspected of illegally selling drugs. The court held that the description of the drugs to be seized was too broad in scope, so that in effect what could be seized under the warrant

lay in the discretion of the officers. In that case, to say the least, the specific items to be seized were capable of being more particularly described than those in the instant case.

Defendants' next point is that the searches were unreasonable because there was a less drastic means of obtaining the seized materials than by search warrant, ...


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