On certification to the Superior Court, Appellate Division, whose opinion is reported at 168 N.J. Super. 359 (1979).
For affirmance -- Chief Justice Wilentz, and Justices Sullivan, Pashman, Clifford, Handler and Pollock. For reversal -- Justice Schreiber. The opinion of the Court was delivered by Pollock, J. Schreiber, J., dissenting.
The primary issue on this appeal is whether a warrantless search by local law enforcement officers of the nonpublic areas of a tavern was authorized under N.J.S.A. 33:1-35. If the search was unauthorized, then evidence obtained by the officers may be suppressed. The trial court denied a motion to suppress evidence found during the search. The Appellate Division reversed. State v. Williams, 168 N.J. Super. 359 (App. Div. 1979). We granted the State's petition for certification. 82 N.J. 268 (1979). We now affirm.
Under the facts of this case, we hold invalid the warrantless search of a tavern by local police for evidence of a crime where the search was not authorized as required by statute.
Two detectives of the Paterson police department entered a tavern in Paterson on January 22, 1976, at about 11:15 a.m. to search for a stolen citizens' band radio. One detective had received a tip about the radio from an informant two days earlier. Neither had a search warrant.
The detectives identified themselves to the bartender and proceeded to search the entire premises. One officer searched the public area of the tavern, and the other went into the basement through a trap door behind the bar. While in the basement, the second officer found three men in a small storage room at a table with stacks of money and some paper slips, which were apparently lottery tally sheets. He called his partner and summoned the vice squad for assistance. The officers
also found two loaded revolvers and a stolen citizens' band radio. Defendant Williams, one of the men in the basement, acknowledged ownership of the guns.
Williams lived in an apartment above the bar with his wife and children. The tavern was in a building owned by a corporation of which Williams' sister and her husband were the majority shareholders. Williams paid reduced rent in exchange for maintenance and cleaning of the entire building, including the furnace in the basement. He had access to the basement and storage room, where he kept tools.
Williams and the others were indicted 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 a hearing, the trial judge denied defendant's motion to suppress the evidence found at the tavern. He found that the warrantless search was authorized by N.J.S.A. 33:1-35 of the Alcoholic Beverage Control (ABC) laws. A jury found Williams guilty on all counts except receiving stolen property.
The Appellate Division reversed, finding that the officers were not conducting an ABC regulatory search. 168 N.J. Super. at 364-365. The court held that N.J.S.A. 33:1-35 authorizes warrantless searches only if they relate specifically to enforcement of the liquor laws and regulations. Id. at 366-367.
The initial question is whether Williams has standing to argue that the police conducted an illegal search and seizure, an issue first raised by the State on appeal. The United States Supreme Court held in Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), that standing should be considered in conjunction with determining the substantive Fourth Amendment issue. The question thus becomes whether the search and seizure violated the Fourth Amendment rights of the person claiming the violation. Id. at 140, 99 S. Ct. at 429, 58 L. Ed. 2d at 399. A search and seizure of premises or property of a third
person may not violate the Fourth Amendment rights of a defendant. Id. at 134, 99 S. Ct. at 425, 58 L. Ed. 2d 395. However, a defendant need not be the owner of the premises: the test is whether a defendant had a legitimate expectation of privacy in the property or premises involved. Id. at 143, 99 S. Ct. at 430, 58 L. Ed. 2d at 401. See also United States v. Salvucci, U.S. , 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980) (overruling automatic standing doctrine for possessory offenses).
We find that Williams had a legitimate expectation of privacy in the storage room. The room was used for the storage of liquor and kept locked. Although part of the licensed premises, it was not a public area. Williams kept tools in the room, and as a resident and custodian, had access to it. Consequently, we hold that Williams has standing to challenge the search and seizure under the Fourth Amendment.
We next consider whether the search was authorized in law or fact. The statute on which the officers relied, N.J.S.A. 33:1-35, provides in pertinent part:
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 employee 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 licensed premises may be made without search warrant by the director, his deputies, inspectors or investigators, by each other issuing authority and by any officer.
Regulations of the Division of ABC provide that a licensee shall not permit gambling or a lottery on the premises, N.J.A.C. 13:2-23.7(a). There is no regulation prohibiting the receipt of stolen goods. However, there is a general prohibition against any illegal activity on the premises. N.J.A.C. 13:2-23.5(c).
The State argues that the statute authorizes warrantless searches in the enforcement of the alcoholic beverage control laws, and that enforcement includes the investigation of crimes by local police ...