Gilmore, J.J.D.R.C. (temporarily assigned).
It has been called the "idiot box" and other opprobious names. It has been a boon to baby sisters, shut-ins and people who cannot buy a ticket to the game. It is our television set. Now it constitutes the third ingredient in this motion to suppress. It is teamed with an officer's curiosity and the Fourth Amendment.
The facts garnered from affidavits, a police report and testimony given before the grand jury, are substantially undisputed. On September 27, 1977 Detective Donald Nagle of the Jersey City Police Department entered premises rented by Barbara Jones and occupied by the defendant Griffin. He was armed with a search warrant and his quest was narcotics. He sighted and sequestered the same. Prior to his departure, he observed two television sets unobtrusively located. One was in the parlor and the other was in the bedroom. Succumbing to the feline propensity, he peeked at the rear of each set and recorded its individual serial number.
Upon returning to headquarters his inquiry to the National Crime Information Center disclosed that these sets had been recently stolen from an establishment known as "Levy Brothers." Incorporating this information in an affidavit, he obtained another search warrant and took possession of the TVs. Defendant maintains that the method employed by the officer to obtain the knowledge of the serial numbers violated Griffin's Fourth Amendment rights.
In the scrimmage between the defense counsel and the prosecutor, the former attacks with State v. Wilson , 279 Md. 189,
367 A.2d 1223 (Ct. App. 1977), and State v. Murray , 84 Wash. 2d 527, 527 P. 2d 1303 (Sup. Ct. 1974). Law enforcement stands ensconced behind the ramparts of United States v. Gunn , 428 F.2d 1057 (5 Cir. 1970), and Cotton v. United States , 371 F.2d 385 (9 Cir. 1967). Lest there repose any doubt in the mind of the reader, in Wilson both the State and defendant did "treat the taking of the serial numbers as a seizure within the meaning of the Fourth Amendment." Of less unanimity is Murray wherein five justices held that
The serial numbers were not within the plain view of the officers, and their being obtained by the tilting of the Sony television constituted a warrantless seizure of those numbers.
However, four justices of that court felt that the viewing and checking of serial numbers, even if in places which are difficult to observe, is not a search.
The prosecutor asserts that the holding of Gunn, supra , makes his position impregnable. Gunn proclaims that the inspection of tires on a motor vehicle was located which in no way damaged the tires or the vehicle and was limited to determining the serial numbers of the tires, was not a search within the Fourth Amendment. The prosecutor also takes refuge in the formidable verbiage of Cotton, supra. It was held that it was not a "search" for an F.B.I. agent to look at the outside of an automobile and thus determine its make, model, color and license number.
Both participants advise the court that their labors have not uncovered any recorded New Jersey case on point. A precedent conformable to the circumstances of a particular case is not always apparent in our own reported decisions. But why search for a decision that would mirror the present factual circumstances? Chief Justice Weintraub has shown us the polestar in a trilogy of cases, namely, State v. Gerardo , 53 N.J. 261 (1969); State v. Smith , 37 N.J. 481 (1962), and Eleuteri v. Richman , 26 N.J. 506 (1958).
Rather than quote ad infinitum from the foregoing cases, it will make easier reading if the ...