On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Fritz, Bischoff and Morgan. The opinion of the court was delivered by Fritz, P.J.A.D.
[169 NJSuper Page 512] This is an appeal by the State, by leave, from an order suppressing evidence discovered by municipal policemen during a warrantless search of a Jersey City tavern. Involved are defendants Worthy, proprietor of the tavern, Still, the bartender, and Ransom, a patron reputed to have been dealing drugs therein. The order being appealed denied suppression with respect to Worthy, but granted suppression of the evidence found on the premises "as it pertains" to Still and Ransom, and wholly suppressed evidence found on the person of Ransom. There is no appeal from
the refusal to suppress with regard to Worthy. We reverse the suppression orders.*fn1
The police activity was initiated by information from a police informant that Still and Ransom were "dealing" cocaine for Worthy from his tavern. Police officers went to the premises. Pursuant to the agreed plan, two of them went immediately toward the men's room which is where they were advised the narcotics were stored and the area of the premises in which the cocaine was ultimately found. The third immediately "apprehended" Ransom. Having also been advised that Ransom might be armed, the officer patted him down. Concerned by "a bulge in his right pants pocket," the officer asked Ransom "to remove it." Ransom disgorged "five $20 pieces of cocaine."
Ransom and Still were arrested and transported to police headquarters. It appears that shortly thereafter one of the officers was discussing the matter with the informant,*fn2 who inquired as to whether they seized "the guns" and suggested there might be more narcotics in the safe. The police returned to the tavern with Still. There is evidence that Still volunteered to open the safe for the officers. Two revolvers were taken from the safe.
The judge below doubted that there was justification for the warrantless search of the premises based on the information obtained from the informant. He was of this opinion, first, because he found no "independent * * * verification of the informant's information." Beyond that, he opined that since "the informer first gave his information a week before the raid * * * there was a lack of exigent circumstances justifying the warrantless search." However, he believed that N.J.S.A. 33:1-35 authorized the search of the premises and of the safe located therein.
In this latter regard the trial judge had this to say in his written opinion:
Nevertheless, in spite of the fact that there were no exigent circumstances justifying the warrantless search, the nature of the search in question, or more particularly, where the search took place, distinguishes this case from one involving a typical warrantless search, and thus requires careful consideration. The uniqueness of this case stems from the fact that the search was of a licensed tavern. The State argues that because the subject of the search was a tavern, the police did not require probable cause or exigent circumstances to conduct their search. The authority to conduct the search did not arise from typical constitutional consideration, but, according to the State, from N.J.S.A. 33:1-35. The statute in relevant part states:
The commissioner 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 licensee or on the licensed premises.*fn3
The leading case interpreting the statute is State v. Zurawski , 89 N.J. Super. 488 (App. Div. 1965) [aff'd o.b. 47 N.J. 160 (1966)]. The defendant was charged with bookmaking. The charge
came about because of a warrantless search of a licensed premises, a tavern, in which an illegal lottery slip was discovered. The question presented was whether the result of the search could be used against the tavern owner in a criminal prosecution.
The defendant argued that the statute "was intended to facilitate investigations and searches for the sole purpose of ferreting out violations of the Commissioner's rules with the end of suspension or revocation of the privileges of liquor licenses." State v. Zurawski, supra , at 490. The court responded by stating that the "language granting the search power should be 'liberally construed' in accordance with the mandate of N.J.S.A. 33:1-73." Id. at 492. The court also said that the position of a liquor licensee was unique.
Moreover, the court stated that the "sale of intoxicating liquor * * * is not one of the privileges or immunities of citizenship protected by the * * * Constitution * * *, but is rather a business subject to prohibition or regulation." Id. Also, see Blanck v. Mayor, etc., of Magnolia , 38 N.J. 484 (1962).
Other jurisdictions have held similarly. In Hurless v. Department of Liquor Control , 136 N.E. 2d 736 (1955), the Ohio supreme court [ sic: Court of Appeals] stated that:
By securing his permit and electing to operate under the Liquor Control Act, he has waived the Constitutional protection, if any, of the Ohio Constitution as to the right to search his premises and seize property if found to be in violation of the law. at [ sic ] 737.
More recently, the United States Supreme Court in dictum also addressed itself to the pervasive government regulation to which a liquor licensee normally must submit. The Court said that "* * * Certain industries have such a history of government oversight that no reasonable expectation of privacy * * * could exist for a proprietor over the stock of such an enterprise. Liquor * * * and firearms * * * are industries of this type; when an entrepreneur embarks upon such a business, he has voluntarily chosen to subject himself to a full arsenal of governmental regulation." Ray Marshall, Secretary of Labor v. Barlow's Inc., supra [, 429 U.S. 1347, 97 S. Ct. 776, 50 L. Ed. 2d 739]
In Marshall v. Barlow's Inc. , the court held that warrantless inspections to enforce the Occupational Safety and Health Act (OSHA) were unreasonable under the Fourth Amendment. It
distinguished its holding from previous decisions having to do with warrantless searches of liquor establishments (Colonnade Catering Corp. v. United States , 397 U.S. 72, 74, 77, 90 S. Ct. 774 [, 25 L. Ed. 2d 60] (1970) by stating that "businessmen engaged in such federally licensed and regulated enterprises accept the burdens as well as the benefits of their trade, whereas the petitioner here was not engaged in any regulated or licensed business. The businessman in a regulated industry in effect consents to the restrictions placed upon him." Id. ...