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State v. Gagen

Decided: September 19, 1978.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES F. GAGEN, DEFENDANT-APPELLANT



On appeal from Superior Court, Law Division, Hudson County.

Bischoff, Morgan and Horn.

Per Curiam

Defendant entered a negotiated plea of guilty to unlawful possession of lottery slips, in violation of N.J.S.A. 2A:121-3(b). He appeals from said conviction on the sole ground that the judge erred in denying his motion to suppress evidence consisting of said lottery slips obtained as a result of a warrantless search. R. 3:5-7(d). We agree with defendant's contention that the seizure of lottery slips from his person was unlawful and consequently reverse the order denying the suppression of the evidence.

The material facts developed at the evidential hearing through a single witness, the arresting officer, are not in dispute. Jersey City detectives were investigating wholesale pilferage of the Hudson Refrigeration Company (Hudson), allegedly by some of its employees. In the course of the investigation, about a week before July 16, 1974, a member of

a private investigation agency employed by Hudson informed the witness that an employee of Hudson bearing defendant's name was taking "numbers actions" from the other employees.

On July 16, 1974, while about five feet outside the employees' entrance to Hudson's building in a routine check of exiting employees, the witness stopped defendant, informed him that he was from the police, exhibited his badge to him and asked defendant his name. Upon hearing defendant's name, "* * * at that point something clicked, so far as him being the man who was doing the numbers action, and there was a piece of paper in his pocket and I asked him to give it to me, which he did." The witness added that when defendant was coming out he had observed him "put something in his pocket, which I believe was that paper." The paper which defendant surrendered to the detective constituted the foundation for the charge to which defendant pled guilty and which was the subject of the suppression motion.

It is to be observed that except for learning defendant's name, as supplied by the private investigator, defendant's behavior did not in anywise indicate criminal activity. It clearly appears that seeing defendant openly place a piece of paper in his pocket made no impression upon the detective until the latter learned defendant's identity.

The judge ruled that the search was valid "only because there was a voluntary consent given." The State correctly concedes that this ruling was erroneous.*fn1 Notwithstanding that the judge expressed some doubt as to the validity of the search*fn2 and failed to make any findings of

fact (R. 1:7-4; Hallberg v. Hallberg , 113 N.J. Super. 205 [App. Div. 1971]) as to probable cause, the State would have us sustain the judge's ruling on its argument that there was in fact probable cause and that the exigencies of the case warranted the detective's demand or a search -- in effect, that in the exercise of our original jurisdiction (R. 2:10-5; Farmingdale Realty Co. v. Farmingdale , 55 N.J. 103, 106 (1969)) we should make findings consistent with that view. Since such findings would of necessity have to encompass a determination of the credibility of the testifying officer we would ordinarily decline to do so and would remand so that the trial judge could make appropriate findings (State v. Hodgson , 44 N.J. 151, 159-160 (1965), cert. den. 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966); State v. Smith , 32 N.J. 501, 549 (1960), cert. den. 364 U.S. 936, 81 S. Ct. 382, 5 L. Ed. 2d 367 (1961)). See also, State v. Smith , 113 N.J. Super. 120 (App. Div. 1971), certif. den. 59 N.J. 293 (1971). Because, however, we are of the belief that even imparting complete credibility to the testimony of the testifying officer there was a lack of probable cause, we need not remand; instead, we so hold and reverse.

The so-called "short-hand" test of whether there is probable cause to make a warrantless arrest is whether "under the circumstances a prudent man would be warranted in the belief that a crime probably is being committed." State v. Sims , 75 N.J. 337, 355 (1978). In the case at bar all that was before the court was the information supplied by the private investigator*fn3 that defendant was suspected of engaging in illegal lottery activity. The police did nothing ...


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