On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.
This case raises the question of whether law enforcement officers may search the non-public areas of a licensed tavern for evidence of general criminality, unrelated to the operation of the licensed activity, without a search warrant.
Appellant Cary Williams was indicted on November 4, 1976, with several others, for possession of lottery paraphernalia (N.J.S.A. 2A:121-3(b)); working for a lottery (N.J.S.A. 2A:121-3(a)); receiving stolen property (N.J.S.A. 2A:139-1); and possession of revolvers without a permit (N.J.S.A. 2A:151-41(a)). After denial of his timely motion to suppress, R. 3:5-7, Williams was found guilty on November 3, 1977 of all charges except that of receiving stolen property. Following imposition of a custodial sentence Williams appeals, alleging violation of his rights under the Fourth Amendment to the Federal Constitution.
These are the facts pertinent to the legality of the search and seizure. On January 22, 1976 Detectives Giordano and Zdanis of the Paterson Police Department went to a tavern located at 54 Washington Avenue in Paterson. Their purpose was to investigate concerning a stolen CB radio following a "tip" from an unidentified source received two days before. The detectives had no search warrant. There was no attempt at the trial level to suggest exigent circumstances.
At about 11 A.M. the two detectives entered the tavern and identified themselves to the bartender as local police officers. Detective Zdanis immediately went behind the bar and opened a trap door which led to the basement. Detective Giordano searched the public area of the bar. Upon reaching the cellar area Zdanis observed three males inside a small (8' x 8') storage room in the basement. One of the men was defendant Williams. Zdanis observed in open view several stacks of
money, tally sheets, a strongbox and two hand guns. Further search revealed a stolen CB radio. The detectives then summoned the vice squad and the observed items were seized, including $29,807.40 in cash. Several lottery slips were also found on one of Williams' coindictees.
Defendant Williams lived in an apartment above the bar with his wife and children. He was the custodian of the entire building, responsible for cleaning and maintenance, and had the right of access to the tavern's basement and storage room where he kept tools. The room where the illegal gambling activity was observed and the physical evidence was seized was also used for storage of liquor. It was clearly a part of the licensed premises.
Preliminarily, we hold that under our cases defendant Williams, although not the owner of the tavern, has requisite standing to voice the claim of an illegal search and seizure. He was a resident of the licensed premises. He had right of access to the storage area and kept personal property there. The basement was not a public area and defendant's presence was neither casual nor transient. His interest was personal and his expectation of privacy from a general warrantless search real. See State v. Parker , 153 N.J. Super. 481, 488 (App. Div. 1977); State v. LaDuca , 89 N.J. Super. 159, 163 (App. Div. 1965). Cf. Rakas v. Illinois , U.S. , 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).
The State contends that the warrantless search was authorized by the statutes regulating the sale of alcoholic beverages, specifically N.J.S.A. 33:1-35, and by our holding in State v. Zurawski , 89 N.J. Super. 488 (App. Div. 1965), aff'd o.b. 47 N.J. 160 (1966). N.J.S.A. 33:1-35 provides in pertinent part as follows:
The Director of the Division of Alcoholic Beverage Control and each other issuing authority may make, or cause to be made, such investigations as he or it shall deem proper in the administration of this chapter and of any and all other laws now or which may hereafter be in force and effect concerning alcoholic beverages, or the manufacture, distribution or sale thereof, or the collection of taxes thereon,
including the inspection and search of premises for which the license is sought or has been issued , of any building containing the same, of licensed buildings, examination of the books, records, accounts, documents and papers of the licensees or on the licensed premises.
Every applicant for a license, and every licensee, and every director, officer, agent and employer of every licensee, shall, on demand, exhibit to the director or other issuing authority, as the case may be, or to his or its deputies or investigators, or inspectors or agents all of the matters and things which the director of the division or other issuing authority, as the case may be, is hereby authorized or empowered to investigate, inspect or examine, and to facilitate, as far as may be in their power so to do, in any such investigation, examination or inspection, and they shall not in any way hinder or delay or cause the hindrance or delay of same, in any manner whatsoever. Investigations, inspections and searches of ...