On appeal from the Superior Court, Law Division, Bergen County.
Matthews, Kole and Milmed.
Defendant Joseph Carmel appeals from an interlocutory order denying his motion to suppress material taken from his store.
Defendant was arrested in his stationery and bookstore on February 14, 1978. He was charged with violation of N.J.S.A. 2A:115-2 in that he did "utter, or possess with intent to utter or expose obscene and indecent books, magazines and films as defined by statute." He was also charged with violation of N.J.S.A. 2A:115-2.3 in that he did "knowingly, communicate publicly material obscene for public communication to wit: magazines of the title, Peace & Love, Female Masturbation, Toilet Teens, Hot Cheerleaders, contrary to the revised statutes." In addition, defendant was charged with violation of the local ordinance of Hillsdale in that he did "exhibit and offer to sell indecent or lewd books, magazines and films."
On May 11, 1978 defendant moved to suppress the materials taken from the store and for the return of the seized property. On June 12, 1978 the motion to suppress was denied. Defendant chose to withdraw the motion for return of property when he was granted the option of proceeding with the plenary hearing or withdrawing the motion.
On August 11, 1978 a Bergen County Grand Jury returned indictments against defendant and one Anthony Acrury for violation of N.J.S.A. 2A:115-2 and 2A:115-2.3 and, N.J.S.A. 2A:130-2 and 2A:130-3.
Defendant owns and operates a stationery and bookstore at 106 Broadway Avenue, Hillsdale, Bergen County. On February 14, 1978 a search warrant was issued by the judge of the Hillsdale Municipal Court authorizing a search of:
The store is part of the Marsala Building and is a wood frame building.
In executing the warrant on that date the police searched three storage areas of the premises and seized the items specified, as well as numerous films, magazines and books determined by them to be within the warrant, and papers and ledger books. Approximately 1,040 items were seized and subsequently inventoried.
Defendant was arrested at the store. Anthony Acrury, proprietor of the Sunrise Booksale Company, was also in the store and was arrested at the same time. A box of materials, including various magazines, was found in his possession and was also seized.
Defendant urges three issues on appeal: (1) the seizure and retention of his stock, absent a prior adversary hearing, constitutes an unlawful prior restraint in violation of the First Amendment; (2) the seizure of his stock without a prior hearing violated his right to procedural ...