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State v. Sims

Decided: January 31, 1978.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HARVEY SIMS AND LEROY RICHO, DEFENDANTS-APPELLANTS



For reversal -- Chief Justice Hughes and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Pashman, J.

Pashman

[75 NJ Page 341] This appeal requires an application of the standards governing search warrants set forth in State v. De Simone, 60 N.J. 319 (1972). We are called upon to determine whether a search warrant permitting police to search the premises of a service station and any persons found therein, authorized in connection with an investigation aimed at illegal bookmaking, is unconstitutional as a proscribed general warrant. Should that question be answered in the affirmative, we must decide whether the circumstances of this case are such that the searches of the defendants could

be justified under any of the recognized exceptions to the warrant requirement of the Fourth Amendment.

The factual details of the searches are not in dispute -- the suppression motion below was tried under a stipulation of facts.*fn1 On February 1, 1974 application was made to the County Court of Essex County for a series of warrants. In support thereof, Sergeant Raymond Gilhooley of the City-County Strike Force presented a 112-page affidavit, which was the culmination of an on-going investigation with respect to illegal bookmaking activities. This investigation utilized court-approved electronic surveillance as well as conventional means. The affidavit revealed, in pertinent part, the following bases of the existence of probable cause to suspect that bookmaking activities were indeed going on at the service station in question.

On January 17, 1974 police intercepted a phone call from Binkey's Tavern to a service station owned by one Robert (Bob) Quinlan. Based on other evidence, this tavern was believed to be the headquarters for an illicit lottery and gambling operation. The caller placed two illegal horse bets with a person identifying himself as Bob. On the basis of this sworn information in Sergeant Gilhooley's affidavit and the Sergeant's conclusion that Quinlan would have records and evidence of such gambling operations both on his person and at his service station, a search warrant issued. It authorized the search of the service station premises and any persons found therein. An arrest warrant for Robert Quinlan was also secured. The search was executed on February 2, 1974.

Upon arrival at the service station, the police searched the premises. Mr. Quinlan was placed under arrest and searched. No evidence of any contraband was found on his

person. Samuel Gray, who had been conversing with Quinlan when the police arrived, was also searched. He was found to be in possession of illegal lottery slips. A Mrs. Simmons entered the service station office while the search of the premises was in progress. She spoke to Sergeant Purcell, requesting to see Mr. Quinlan because she had something for him. Sergeant Purcell then identified himself as a police officer and ordered Mrs. Simmons to empty the contents of her pocketbook. Among the contents was a piece of white paper on which notations indicating several lottery bets in the amount of $5 had been made.

Soon thereafter defendant Harvey Sims arrived at the service station office. His person was searched and police found a slip of paper containing $5.50 in lottery play. The record does not indicate whether Sims walked or drove to the station or whether he made any statements to the officers. Nor does it disclose any evidence of suspicious statements or conduct on his part. It merely indicates that he walked into the office and was searched by the officers inside.

Nicholas Sena was then observed by Lieutenant Daniel Chiarello. He was about to enter the gas station office when, upon reaching the door, he observed the unusual activity inside the office. Turning from the door, he ran toward the street but was apprehended before reaching the edge of the gas station property. A search of Mr. Sena's person revealed a white slip of paper with two horse bets totaling $12 and a National Armstrong Daily Horse Racing Sheet for that day, February 2, 1974.

Finally, defendant Leroy Richo entered the office of the service station. He was searched and two lottery slips totaling $10.15 in play were confiscated. Again, the record is silent as to both Richo's mode of arrival and as to any acts, beyond his merely walking into the office, which would tend to place him under suspicion.

All of these individual searches took place while the search of the service station premises was in progress. The search of the station yielded no gambling materials. However,

all the persons searched were placed under arrest. The record does not indicate whether other persons wholly unconnected with the illegal gambling operation were present at any time during the search. Nor does it reveal the time interval between the initial entry by police into the service station office and the arrival of the various defendants. We concern ourselves only with defendants Sims and Richo, the parties to this appeal.

A suppression motion was brought before the County Court by counsel for defendants. He argued that the search warrant was an unconstitutional general warrant and could not be squared with the requirements of State v. De Simone, supra. The motion was denied on two theories. First, the search warrant was held to extend to the defendants and was characterized as a valid warrant under these facts. Second, the search was found to have been a reasonable warrantless search as a result of the proximity between the arrival of the defendants and the antecedent events described above. The circumstances found sufficiently exigent to justify the warrantless searches were the officers' reasonable grounds for believing that defendants were engaged in criminal activity and the danger that permitting defendants' departure without a search would have resulted in the loss of the contraband of which they were reasonably believed to be in possession.

The defendants pleaded not guilty and were tried without a jury on a stipulation of the testimony and facts as presented in the suppression hearing. The defendants also stipulated that they knowingly possessed the lottery slips. Both were found guilty of illegal possession of lottery slips in contravention of N.J.S.A. 2A:121-3b. Each defendant received a three-month suspended sentence, a $100 fine and was placed on probation for one year. A conspiracy count against each defendant was dismissed.

In an unreported opinion, the Appellate Division affirmed the trial court's denial of defendants' motion to suppress. The opinion emphasized that the warrant did not

broadly encompass the entire premises of the gas station but was limited to the building and those who entered it.*fn2 The court found that the police were reasonable in concluding that most innocent customers of a gas station do not parade into the office. We granted defendants' petition for certification, 73 N.J. 52 (1977).

I

A search warrant providing for the search of unnamed persons, without a particularized description to distinguish its subjects from the general public, violates both the New Jersey Constitution and the Fourth Amendment of the United States Constitution.

The Fourth Amendment states explicitly:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no 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 added.]

The language of the parallel provision of our N.J. Const. (1947), Art. I, par. 7, is almost identical:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be ...


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