On appeal from the Superior Court, Law Division, Atlantic County.
Allcorn, Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[185 NJSuper Page 259] Pursuant to leave granted, plaintiff appeals from an order dated November 23, 1981 suppressing evidence obtained from defendant as the result of a warrantless search conducted September
3, 1981. This order reflected the motion judge's decision in an opinion dated December 11, 1981, after he signed the order.
The facts on this matter were developed at an evidential hearing held on November 20, 1981 on defendant's motion to suppress. There were two witnesses at the hearing: Richard Martin, a security officer employed by Caesars Boardwalk Regency Casino Hotel, an Atlantic City casino hotel, and John Wild, a New Jersey state trooper, assigned at the time of the search and seizure to the casino investigation enforcement section in Atlantic City within the Division of Gaming Enforcement of the Department of Law and Public Safety. At the outset of the hearing the motion judge stated that he presumed that since the search was warrantless, the State had "the burden of going forward." The assistant prosecutor acquiesced in this statement. Consequently, Martin and Wild were called as witnesses by the State and were cross-examined by defendant's attorney.*fn1
The facts are not at all complicated. At about 4 p.m. on September 3, 1981 defendant was playing blackjack at Caesars. Martin, who was then a plainclothes sergeant in Caesars' security force, was instructed by Shumsky, Caesars' games manager, to eject defendant from Caesars' premises. Shumsky gave this direction because defendant was thought to be a card counter. Martin and two uniformed security officers went over to the table where defendant was playing. They asked defendant to come with them and cash in his chips. Defendant then went to a cashier's cage and cashed in his chips. Defendant caused the security personnel no trouble then or, indeed, as far as the
record shows, at any time. Martin then asked defendant to come to a holding room with him and the two uniformed men. While the record indicates that the request was not an unequivocal direction, there is no suggestion that defendant was told that he did not have to comply with the request. The reason that defendant was taken to the holding room was so that information could be obtained from him with respect to his identity. This information is obtained because, as explained by Martin, "[o]nce a person is ejected, he is not permitted back in the premises. So we have a file we keep in our office so if the person does come back, we have a record."
When defendant was taken into the holding room he was subjected to a "pat down" search. The purpose of the search was to determine if defendant was armed. Martin conceived that the search was the "proper procedure." In defendant's left front pocket Martin felt a square object. He reached into defendant's pocket to find out if the object was a weapon. It in fact was one of a pair of dice with a spoon on it. Martin also pulled out a small glass bottle. Martin thought that the contents of the bottle was cocaine. The record indicates that until this discovery was made no public employee was involved with defendant. It is also clear that absent the finding of the substance, no public employee would have become implicated in the matter.
Because of the discovery of the bottle, Martin determined to alert the State Police. At the time that the bottle was found, Wild was just outside the holding room. The record is not completely clear as to why Wild was at that location. It does show that at about the time that defendant was being taken to the holding room Wild had been talking to a Lieutenant Pacentrilli on the Caesars' security force. Pacentrilli was apparently notified by radio that defendant was being ejected. Pacentrilli then went to a spot just outside of the security room. Wild went to the same place, but separately. There is not the slightest suggestion in the record, however, that Wild or any other public officer or employee directed that defendant be
taken to the holding room, searched or ejected. Nor does the record reflect that Wild knew that defendant was being searched. Indeed, the record does not even directly show that Wild knew that defendant or anyone else was being taken to the holding room.
Nevertheless, Wild was given the bottle. When he looked at it he thought that it contained cocaine. Defendant, Wild and Martin then went to Wild's office for the purpose of running a field test for cocaine. The test proved positive. Thereupon defendant was arrested. On October 1, 1981 ...