author: Antell, J. S. C.

text:
    JOYCE BUCHANAN, JESSIE RAMSEUR, NANCY FULLER, ELIZABETH WILLIAMS, VIVIAN SIMMONS, BEATRICE GREEN, ETHEL BANKS AND MARION KIDD, ALL INDIVIDUALLY, ON BEHALF OF THEIR MINOR CHILDREN, AND ON BEHALF AF ALL SIMILARLY SITUATED PERSONS, PLAINTIFFS, v. ESSEX COUNTY WELFARE BOARD AND PHILIP K. LAZARO, DIRECTOR OF THE ESSEX COUNTY WELFARE DEPARTMENT, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 15, 1971.

      Mr. Michael O. Parks, of the PTewark-Essex Joint Law Reform Project, for plaintiffs.

      Mr. Ronald Reichstein for defendants.
   Antell, J. S. C.

(temporarily assigned). Defendant Essex County Welfare Board is a county agency charged with the responsibility for administering financial assistance and other services to needy dependent children and the parent or relative with whom they are living, under the federally-funded Aid to Pamilies With Dependent Children program, hereinafter called AFDC. N. J. S. A. 44:10-2. Plaintiffs are recipients of welfare benefits under APDC and sue as a class for declaratory judgment and injunctive relief to determine when, within a given payment period, the full amount of financial assistance to which they are admittedly entitled from defendant must be paid.

The members of plaintiffs’ class also occupy the status of obligees under judicial support orders entered against legally responsible relatives—most often deserting fathers— based upon nonsupport complaints which defendant instructs plaintiffs to file in the Juvenile and Domestic Eelations Court by reason of the relative’s failure to meet his support obligations. Payments thereunder are required to be made either directly to the recipient-obligee by the responsible relative or through the probation department. In either case it is defendant’s practice to deduct the amount of the court-ordered obligation from the welfare recipient’s entitlements when these are paid at the beginning of each monthly payment period and to reimburse the recipient by the issuance of a supplemental assistance cheek if the support payment or any part thereof is later shown by the recipient to have been in default.

In this process the length of time between the start of a payment period until the fact of a reportable support order delinquency is perceived varies from case to case. How much anxiety is required to impel a particular welfare client to investigate what has happened to an overdue payment and the point in time at which economic deprivation becomes acute are often governing factors. Additional delays follow in attempts to report the delinquency either by telephone or personal visits to burdened case workers, who are not always available and whose efforts to return such calls are frustrated by the recipient’s lack of telephone service. After the report is received, time-consuming verifying procedures are followed by the agency which must be completed before payment is authorized. The cumulative effect thereof is that three to four weeks can sometimes pass before the needed supplemental assistance check is issued.

The practice hereinabove related is departed from, however, where the support obligor is “habitually” delinquent. In this case the recipient is placed on what is called a “full payment process,” is paid the full grant at the beginning of each payment period, and defendant applies to the court to be substituted as obligee under the support order. Under standards formulated by defendant, delinquencies are deemed “habitual” where: (1) payments have been delinquent in whole or substantial part for three consecutive months, or (2) payments have been delinquent in whole or substantial part in eight of the preceding 12 months, or (3) supplemental assistance checks have been issued by reason of substantial delinquencies for four of the preceding six months.

Plaintiffs maintain that they are entitled to the full amount of their welfare grant at the beginning of each month without deduction for the amounts ordered paid for their support by legally responsible relatives. Defendant responds that its practice of withholding such moneys is in all respects lawful and not inconsistent with local and congressional intent as expressed in state and federal legislation and administrative regulations promulgated thereunder. This is the controversy.

It is first noted that defendant has expressly disavowed any defense to the action based upon plaintiffs’ failure to exhaust administrative remedies.

AEDC is one of three major categorical public assistance programs established by the Social Security Act of 1935. The class thereby selected for welfare assistance is the “dependent child,” who is defined in 42 U. S. A. § 606(a) as a

* * * needy child (1) who has been deprived of parental support or care by reason of death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or neice, in a place of residence maintained by one or more of such relatives as his or their own home.

There are also specified age qualifications.

The program

* * * is financed largely by the Federal Government, on a matching fund basis, and is administered by the States. States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children are required to submit an AFDC plan for the approval of the Secretary of Health, Education, and Welfare (HEW). [King v. Smith, 392 U. S. 309, 316, 88 S. Ct. 2128, 2133, 20 L. Ed. 2d 1118 (1968)]

It is “based on a scheme of cooperative federalism.” Id., 88 S. Ct. 2133.

The state plan must conform with numerous requirements and conditions prescribed by the federal legislation and with rules and regulations promulgated by the Secretary of Health, Education and Welfare. 42 U. S. C. § 602. King v. Smith, Supra, 88 S. Ct. at 2133; Rosado v. Wyman, 397 U. S. 397, 90 S. Ct. 1207, 1216, 25 L. Ed. 2d 442 (1970). One such requirement is that “aid to families with dependent children shall he furnished with reasonable promptness to all eligible individuals.” 42 U. S. C. §602(a) (10). Accordingly, the New Jersey legislation expressly provides that “assistance shall be furnished with reasonable promptness to or for all eligible individuals.” N. J. S. A. 44:10-3(b). The benefits are received as a matter of statutory entitlement for persons qualified to receive them and not simply as a matter of benevolence.

Erom its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to olhers to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to “promote the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” The same governmental interests which counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end. [Goldberg v. Kelly, 397 U. S. 251, 90 S. Ct. 1011, 1019, 25 L. Ed. 2d 287 (1970) ]

The utilitarian basis of this legislation is illuminated in Sen. Rep. No. 628, 74th Cong., 1st Sess., 16-17 (1935), as noted in the dissenting opinion of Justice Douglas in Dandridge v. Williams, 397 U. S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970) :

With no income coming in, and with young children for whom provision must be made for a number of years, families without a father’s support require public assistance, unless they have been left with adequate means or are aided by friends and relatives. * * * Through cash grants adjusted to the needs of the family it is possible to keep the young children with their mother in their own home, thus preventing the necessity of placing the children in institutions. This is recognized by everyone to be the least expensive and altogether the most desirable method for meeting the needs of these families that has yet been devised, [at 1167]

The federal enactments permit each state to determine its own standard of need as a condition for eligibility under the program. King v. Smith, supra, 88 S. Ct. at 2134. New Jersey, by administrative regulations promulgated under N. J. S. A. 44:10-1(c) (3), has established as its standard for “an adequate minimum level of living * * * a money amount which is sufficient to finance the purchase of those goods and services which are essential for physical health and safety.” Categorical Assistance Budget Manual §102. Hence, the defined condition of eligibility is that the applicant be “destitute, without funds or assets.” E. g., Goldberg v. Kelly, supra, 90 S. Ct. at 1017.

Assuming, as we must, that defendant faithfully meets its obligation to preserve this boundary inviolate, we can see how perilous the recipient’s very existence becomes — particularly in a rapidly rising economy — where there is any interruption or reduction in the financial assistance needed to buy only that amount of food, clothing, shelter and services vital to the maintenance of life itself. Fevertheless, the overriding objectives of assistance remain as expressed in N. J. S. A. 44:10-1 (a) :

(1) To provide for the care of needy dependent children in tbeir own homes or in the homes of relatives, under standards and conditions compatible with decency and health.
(2) To help maintain and strengthen family life, and
(3) To help such parents or relatives to attain the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection.

The administration of this huge program has resulted in a proliferation of statutes, regulations and directives on the federal, state and local levels. In the main, the federal rules and regulations are published in the Federal Handbook of Public Assistance Administration (hereinafter referred to as Federal Handbook). 42 U. S. C. § 1302. The state regulations issued pursuant to N. J. S. A. 44:10-3 are contained in the Categorical Assistance Budget Manual (hereinafter referred to as Budget Manual) prepared by the Division of Public Welfare of the Department of Institutions and Agencies, and the Manual of Administration prepared by the Bureau of Assistance of the Department of Institutions and Agencies.

Among other uses, the Budget Manual is employed by defendant’s case worker to determine the amount of benefits to be paid the applicant, and in this connection furnishes guidelines to the case worker as to which of the applicant’s resources should be taken into consideration in determining the extent of need and assistance required. This is required by federal law. 42 U. S. C. § 602(a) (7). Budget Manual § 402.61 states that consideration be given to resources to be derived by the applicant from relatives and friends. However, § 501.3 directs that “only the amount of support * * * actually being received by the client shall be considered as an available resource.” (Emphasis added). §§ 501.1 and 501.2 impose upon defendant agency the duty of determining the willingness of the relatives to contribute to the support of the client and the extent of contributions which are available. Such contributions are considered only a “potential” resource where the relative fails to make contributions deemed to be within his capacity. Budget Manual § 501.4. Only the amount actually being received by the welfare client may be considered as an “available” resource. Budget Manual § 501.3. Federal Handbook § 3120 directs that:

* * * a state must differentiate between resources that can be counted on because they are available for current use on a regular basis and those found not to be available for the individual’s use in meeting subsistence needs as defined in the State’s standard. This means taking in to consideration, in determining need and amount of payment, all current income from all resources such as earnings, OASDI monthly benefits, contributions, etc., actually available to meet the individual’s needs on a regular basis * * * and in contrast, omitting from consideration in determining need and amount of payment any income or resources merely assumed to be possessed by the individual.
Thus, income must not be considered where it is not, in fact, currently ' available to the needy individual; e. g., support payments ordered by the court but which are not, in fact, made; contributions which relatives have been determined able to make but which are not, in fact, made; * * *.
For cases in which income or resources are initially available but are then discontinued, e. g., cases in which a payment under a court order, or contributions, continue for several months and then cease, assistance payments will need to be adjusted promptly to reflect this change in circumstances. [Emphasis added]

Federal Handbook § 3124 further emphasizes the character of the defendant’s obligation in the following language:

Court-ordered support payments by absent parents must be taken into account when they are in fact available to the family, but with provisions that insure that income is available to meet the needs of the mother and children on a regular monthly basis. In reviewing actual practice, it has been found that most support payments in AFDC are irregular. For families whose incomes are limited, an interruption or fluctuation in support payments can result in severe hardship to the family.
Reduced assistance payments based on assumed receipt of support payments or any other income that is not, in fact, available, are inconsistent with the welfare agency’s responsibility for meeting need and strengthening family life. They result in inequity in meeting the continuing needs of the families affected [Emphasis added]

And Federal Handbook §3131.11 provides:

Effective July 1, 1967, the State Plan must assure that, when support payments by absent parents have been ordered by a court, a regular amount of income is available monthly to moot the determined needs of the mother and children whether or not the support payments are received regularly, and that the agency toill not delay or reduce public assistance payments on the basis of assumed support which is not actually available. [Emphasis added]

§2320.1 of the New Jersey Manual of Administration referring to court-ordered payments from legally responsible relatives, also directs that:

Assistance payments in the amount actually required by the client according to public assistance standards shall not be delayed or reduced merely on the basis of assumed support which is not actually available.

Problems arising from the concept of “assumed income” in connection with the computation of assistance moneys needed to meet the “essentials of living” have more than once caught the attention of the Director of the New Jersey Division of Public Welfare. On June 1, 1967, for example, he distributed Circular Letter No. 325 to all county welfare directors reminding them of the requirements of Federal Handbook §3120, supra, and admonishing them in underscored language that

* * * income must not be considered where it is not, in fact, currently available to the needy individual, e. g., support payments ordered by the court but which are not, in fact, made; contributions which relatives have been determined able to make but which are not, in fact, made; * * *.

The Director’s unmistakable meaning seems not to have been uniformly heeded since on May 26, 1970, by Circular Letter No. 800, he called the attention of the county welfare directors to incidents where the rule precluding the assumption of income not actually available was not being observed and redirecting their attention to his previous letter. Defendant’s policies nevertheless remain unchanged.

Defendant resists plaintiff’s application for relief on two grounds. The first is $2320.2 (b) of the Manual of Administration. This provides:

A report that the relative has failed to comply with the Court Order shall be investigated by the county welfare board -without delay. If substantiated, the following policy and procedures shall be observed.
When there is evidence that a relative is habitually making irregular payments, or payments in amounts less than ordered, the county welfare board shall :
1) As of the first day of the next regular payment period adjust the grant to correct any current deficit by the irregular or insufficient payment of the Order; and
2) Immediately offer the client the opportunity to have the regular continuing grant adjusted to provide the full amount of assistance (to which the client is entitled without regard to the Order of Support) under an arrangement whereby any support payments thereafter, if received directly by the client, will be forwarded to the county welfare board, or, if paid through the Probation Department, will be handled as follows: * * *.

It was in conformity with this regulation that defendant’s tri-level test of habitually delinquent payments was formulated, a standard which it urges is companionable both with the statutory mandate that payments be made with “reasonable promptness” and with fulfilling the agency’s obligation to take into account all resources actually available to the recipient in determining the extent of assistance required.

But this regulation does no more than set out the minimum obligation imposed upon defendant where support payments are habitually irregular. It furnishes no guidance as to when payments become “habitually irregular.” The answer to this question can only be found in the overall statutory policy of paying benefits “promptly” and with a minimum of hardship to the recipient.

Secondly, defendant refers to §2954.3 (a) of the Manual of Administration which provides:

There are three possible general methods for the handling of court-ordered support payments: (1) There is the arrangement whereby payment of support is made directly to the dependent person; (2) There is the arrangement whereby payment is ordered to be made to the Probation Office and then remitted by that office to the client. (3) The method which will most effectively assure the client regular and uninterrupted payments, in the amount necessary to meet full budgeted requirements, is the procedure whereby support payments, through court authorization, are made to the Probation Department which in turn makes the payment over to the county welfare board, with the county welfare board continuing to meet the full need of the client through the assistance grant.

Defendant argues that the import of method (3) therein contained is that without court authorization for the substitution of defendant as the obligee under the order for support payments to be made through the probation department, defendant is precluded from paying the full amount of the assistance' grant to the recipient. Since, as the argument continues, the Essex County Juvenile and Domestic Eelations Court has not in the past substituted defendant as beneficiary of support orders (for reasons never made clear by defendant) in a sufficient number of eases, defendant cannot pay full benefits as a matter of policy. That this claimed impediment to paying the full grant does not hamper such payments where the absent father’s delinquencies come under its rule-of-thumb standard of being “habitual” does not seem to offend defendant’s sense of consistency. Apart therefrom, the cited regulation does nothing more than point out a procedure whereby support payments may be collected by defendant when the recipient is placed on a full payment process. It does not suggest the procedure is a necessary condition to being placed on such a process.

Defendant does not defend its practice in terms of any legitimate governmental purpose being thereby advanced. It does not argue greater administrative efficiency or cost curtailment. In fact, the relief asked by plaintiffs would probably result in greater efficiency and cost reduction by eliminating the investigative and administrative procedures involved in the issuance of supplemental assistance checks. It almost appears that we are asked to favor the idle preferences of a somnolent bureaucracy over “the most basic economic needs of impoverished human beings.” Dandridge v. Williams, 90 S. Ct. 1153, 1162 (1970).

The class for which relief is sought to this action is composed almost entirely of deserted children and their mothers. They are indigent—without material possessions beyond those necessary for minimum subsistence. Their only conceivable resource lies in the support orders entered against the absent fathers who have proven irregular in making payments. Living under these oppressive conditions the mothers turn for needed financial assistance to AEDC in their efforts to hold their family together and provide for the children some degree of parental care and protection. The benefits to which they are entitled as a matter of statutory right are provided for under a program sponsored by enlightened and humanitarian principles of concern for the poor and which responds to great challenges beyond merely alleviating the most ordinary symptoms of poverty: hunger, shame, sickness, the cold. In their enunciations of policy our congressional and state lawmakers did not limit themselves to the preservation of life itself. Our source statute speaks of “decency and health,” “family life,” “self-support and personal independence.” Their object was to liberate the mother from her economic burden so that she may function as a parent. See Eriedlander, Introduction to Social Welfare 278 (3d ed. 1968), noting a study by the American Public Welfare Association upon the role of AFDC in preserving the family structure and reducing the incidence of child neglect under conditions of want.

The implementing state and federal regulations are animated almost exclusively by a purpose to soften for the children the painful reality of being poor and abandoned. Their clear mandate is that they be provided benefits without hardship to them and with the burden of all administrative problems being borne by the welfare agency. Although the agency is required by state and federal law to determine the full extent of support moneys available to the client, the duty of ascertaining the willingness of relatives to contribute to the client's support, the extent of their ability to do this, and the amount being currently contributed is placed upon the agency, not the client. The regulations furnish explicit guidance as to when support orders may be taken into account as a resource to the client, and it is clear that may not be considered as such so as to allow the interruption or reduction of assistance except when payments thereunder are currently made; i. e., they must be a real, and not a fancied resource. And they pointedly direct that when support payments are initially made and then discontinued, assistance payments must be “adjusted promptly.”

In every relevant particular defendant’s practice which we are called upon to examine contravenes governing policies. By forcing the recipients to go month after month, waiting for support payments which may never arrive, and to make frantic applications for supplemental assistance as the household funds dwindle to the last dollar, obviously produces budget problems and emotional tensions of acute severity. The element of stress which it introduces into already sorely tested households is pernicious and certainly incompatible with the maintenance of a sound family unit. The practice also violates the regulatory requirement that defendant, not the recipient, bear the burden of investigating the absent relative’s willingness to make payments. Furthermore, the practice is persisted in the face of regulatory requirements that the ordered support payments not be deducted from entitlements unless they are actually currently available, an irregularity which has twice been called to defendant’s attention by the State Director of Public Welfare himself.

Considerations of logic, announced social policy and raw human need overwhelmingly favor the plaintiffs’ demand for relief. The frequency with which benefits are interrupted, and the consequent hardship resulting therefrom, by reason of defendant’s determination not to pay full benefits until support-ordered payments have become habitually delinquent by the standards which it applies, cannot be countenanced under state and federal law.

While the court recognizes that a court order for the payment of support is some evidence of an available resource to a recipient, the necessity for its existence also evidences the unreliability of the absent relative to whom it is directed and the undependability of regular payments. It would seem that the nonavailability of such payments as an actual resource is satisfactorily established upon the occurrence of a single default thereunder during any one payment period. Balancing all considerations, therefore, it is concluded that the dual policy of making payment with “reasonable promptness” and ascertaining whether support payments required by court order are an actually available resource can be served solely by requiring defendant to give recipients the opportunity to be placed on a full-payment process when support-ordered payments become delinquent in any one payment period.

The court has been materially assisted by able research and briefing by counsel for plaintiffs.


source: Caselaw Access Project

author: Per Curiam. Carton, J. A. D.,

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. MICHAEL MERCURIO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 27, 1970
    Decided May 18, 1970.
    Before Judges Sullivan, Carton and Halpern.

      Mr. Joseph A. Falcone, Assistant Prosecutor, argued the cause for appellant (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).

      Mr. Elmer J. Herrmann, Jr., argued the cause for respondent.
   Per Curiam.

The State, pursuant to leave granted, appeals from an order of the county court suppressing evidence seized by the State in a search of certain premises made under a search warrant issued by a municipal judge.

We are here concerned with a situation where the State submitted the information it had obtained as to violation of the gambling laws to a judge who found probable cause to exist and issued a search warrant.

In this situation, State v. Kasabuchi, 52 N. J. 110, 117 (1968), admonishes that “Once the judge has made a finding of probable cause on the proof submitted and issued a search warrant, a reviewing court, especially a trial court, should pay substantial deference to his determination.”

The State concedes that the affidavit is barely adequate but relies on the holding in Kasabuclci, supra, that “* * * when the adequacy of the facts offered to show probable cause is challenged after a search made pursuant to a warrant, and their adequacy appears to be marginal, the doubt should ordinarily be resolved by sustaining the search.” [at 116] The court went on to say:

* * * xhe affidavits presented to the court on the application should not be examined with a hypertechnical eye. The approach must be a practical and common sense one. It must be engaged in with a consciousness that bookmaking operations are carried on cautiously, furtively and deceptively, and by as many camouflages as human ingenuity can devise. State v. Contursi, supra, 44 N. J., at p. 431. The consideration cannot be a grudging one. Such an attitude would give no weight to the good faith of the police officer in seeking judicial sanction for the search. Moreover, that attitude would probably result in failure to take into account a significant factor, i. e., the officer’s experience with bookmaking activities and the factual indications of them. [52 N. J. at 120]

We conclude that the instant matter is controlled by Kasabucki. The police had received information from a reliable informant as to violation of the gambling laws. Surveillance of the premises over a five-day period furnished police with additional facts which they believed sufficiently verified the informant’s tip. They submitted the proof they had to a judge who issued the warrant. Our review of the underlying affidavit leads us to conclude that, while the State’s proofs were marginal, they were such that a judge could have properly found probable cause for the issuance of a search warrant.

Reversed.

Carton, J. A. D.,

(dissenting). The narrow issue involved here is whether a search warrant resting upon information supplied by an anonymous informer was issued upon probable cause. Both the Fourth Amendment of the United States Constitution and N. J. Const. Art. I, par. 7 insuring the right of people against unreasonable search and seizure make that determination one of constitutional dimension by requiring that such search warrants shall not issue except upon probable cause obtained by oath or affirmation. Such determination is entrusted, not to a police officer, but to a neutral judicial officer who may issue the warrant only after he is “made aware of the underlying facts or circumstances which would warrant a prudent man in believing that the law was being violated.” State v. Macri, 39 N. J. 250, 257 (1963).

The United States Supreme Court has enunciated specific requirements which control the issuing judge’s review of such warrant applications. The supporting affidavit must contain an adequate recitation of both the underlying circumstances from which the informer concluded the law was being violated and the basis upon which the maker of the affidavit concluded the informer was credible or his information reliable. Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, 729 (1964). If the informer’s tip fails to satisfy both these requirements, the requirement of probable cause can only be satisfied if, after a scrutiny of the entire affidavit, the corroborative information supplied by the affiant “would permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli v. United States, 393 U. S. 410, 418, 89 S. Ct. 584, 590, 21 L. Ed. 2d 637, 645 (1969).

Yiewed in the light of these constitutional requirements, it is clear that the affidavit in this case falls far short of the minimum required for a finding of probable cause.

First, the information supplied by the informer details no underlying circumstances at all which would warrant a belief that gambling was taking place on the premises. The affidavit contains only the following bald conclusion of illegal activity:

[T]wo white males, between the age of 30 to 40 years of age, about 5-9 to 5-11" tall, between 175 lbs. and 195 lbs. usually wearing black car coats are taking borse race bets in their-12 floor apartment at 55 Manor Dr. Newark, N. J. * * *.

From this information, it is impossible to determine whether the informer personally observed the illegal activity, the day or hour it occurred, or whether he personally placed bets at the apartment sought to be searched. Since no underlying circumstances are shown, there is no basis in the supporting document from which the magistrate who issued the warrant could ascertain the validity of the informer’s conclusion that the law was being violated. See Spinelli, supra, 393 U. S., at 413, 89 S. Ct., at 587, 21 L. Ed. 2d, at 641.

In light of the affidavit’s noncompliance with this fundamental requisite, the requirement of a showing of probable cause remains unsatisfied unless further corroboration appears in the remainder of the affidavit. The other parts of the affidavit evidence no criminal activity in corroboration of the informer’s allegation.

A cheek was made of 55 Manor Dr., 12th floor (apt 12M) and it was found that this is occupied by one Frank Cocuzzo and a James Rizzo. My Investigation discloses that two males, so described by the informant arrives [sic] at the apartment with a daily arm-strong (scratch sheet) in either one or the other’s hand.
Detectives George Thomas, Nicholas Gallicchio and the undersigned made observations on Jan. IS, 20, 21, 22 and 23, 1969 between the hours of 12 noon and 4:30 P.M. During the observation the telephone was called and if the line was not busy, it was then answered by a male (low huskyO [sic] voice just saying “hello.” A call was made to the same number after the two men were seen leaving the apartment at 4:40 p.m. and each time there was no answer. From my past experience as a detective assigned to the Investigation Division and Precinct Vice Squad, this is the usual practice of one engaged in bookmaking.

Not only is the conduct observed in the affidavit innocent, but the quality of the observation itself is suspect. Even as to the only aspect of the incident which could have any conceivable relationship to criminal activity •— the possession of a “daily armstrong” sheet by the two men described by the informer — the affidavit is significantly vague as to whether Campesi made a personal investigation or relied upon other sources of information. Irrespective of whether the observation was his ox that of others, the affidavit omits any detail as to the number of alleged visits by the men. Most important, it is devoid of any correlation between the number of alleged visits and the five-day surveillance.

None of the activities revealed, considered individually or as a composite, can fairly be described as evidencing criminality. Armstrong sheets are readily purchased at newsstands. A sinister connotation cannot be imputed to their mere possession. The allegation that “the telephone was called and * * * answered by a male (low huskyO [sic] voice just saying ‘hello’ ” is devoid of corroborative merit. The social amenity of “saying ‘hello’ ” has not yet acquired incriminatory connotations. That calls made to the same telephone number — never specifically related to the apartment in question — remained unanswered after the two men left the apartment is meaningless as to probable cause. This is especially so in light of the earlier colorless responses to the callers.

Nor- would Campesi’s unsubstantiated expertise contribute to a finding of probable cause in this case. Unlike the deponent in State v. Kasabucki, 52 N. J. 110, 122 (1968), the affiant here sets forth no incriminating dialogue with the defendant which, after interpretation by an experienced officer, could create a well-grounded suspicion that bookmaking existed on the described premises. Parenthetically, it may be noted that Campesi never had any contact with defendant prior to the execution of the warrant. In my view the totality of circumstances presented by the affidavit in this case never “reached a higher plane than speculation or conjecture or raw unsupported suspicion,” 52 N. J. at 122.

That incriminating evidence may be rendered unavailable in this case because of the absence of probable cause, does not test the constitutionality of its acquisition. As our Supreme Court has recognized, the occasional sacrifice of proof is the price of insuring the “continued effectiveness of the guarantees afforded by the Constitution to all of us as free men,” State v. Macri, supra, 39 N. J., at 266.

The effectiveness of the Fourth Amendment guarantee against unreasonable search and seizure rests, in good measure, upon a reviewing court’s insistence “that the magistrate perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.” Aguilar v. Texas, supra, 378 U. S., at 111, 84 S. Ct., at 1512, 12 L. Ed. 2d at 727. In this case the majority recognizes that the State’s proof were marginal but nevertheless concludes they constitute an adequate basis for a finding of probable cause. In my view the approval of the issuance of a warrant on such a frail basis demeans the constitutional function entrusted to the magistrate. It sanctions the use of a “blanket” affidavit that renders neutral and perhaps innocent activities an acceptable basis for the issuance of a warrant. Predicated upon the tip of the anonymous informer, this affidavit could justify a search in innumerable innocent situations.

Could the affidavit not have been aptly applied to the search of an apartment occupied by any two ordinary citizens, one of whom spent his vacation enjoying a few days at the races? Is it not true that receptionists uniformly answer telephones by “saying ‘hello’,” sometimes with a husky voice? Is it not normal for occupants to visit their apartments and, in the case of individuals whose employment may be on a shift basis, to do so during daylight hours ? Can it be disputed that telephones ringing in empty apartments remain unanswered? Is there any doubt that sports enthusiasts often carry “daily armstrong” sheets on their persons ?

By no stretch of the imagination can it be said that corroboration arises from such everyday activities. They contain no suggestion of criminal conduct. They are not rendered suspicious by an unsubstantiated informer’s tip. (See Spinelli v. United States, supra, 393 U. S., at 418, 89 S. Ct., at 590, 21 L. Ed. 2d, at 645). Conduct otherwise innocent should not be treated as nefarious on the basis of a tip from an anonymous informer.

I would affirm the order suppressing the evidence obtained under the invalid warrant.

      In view of this failure, it is unnecessary to consider the additional question whether Officer Oampesi’s affidavit has sufficiently demonstrated the anonymous informer’s reliability by a recitation of arrests and convictions attributable to him, thus meeting the second requirement. However, the better practice seems to cali for a more detailed description of the arrests and convictions. Cf. State v. Clemente, 108 N. J. Super. 189 (App. Div. 1969).


author: Conford, P. J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILBERT SMITH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 19, 1970
    Decided January 19, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Edward Weisslitz, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Gerard J. DiNicola, Salem County Prosecutor, argued the cause for respondent.
   The opinion of the court was delivered by

Conford, P. J. A. D.

Defendant appeals from a conviction for possession of marijuana. Arresting officers found a mailed package of marijuana in his car and an incriminating letter in his bedroom. Inter alia, a number of search and seizure questions are presented.

The judge who later tried the case issued a warrant to search defendant’s home on August 19, 1968. This warrant, which authorized a search for “narcotics and narcotics paraphernalia,” was executed August 28, 1968, and defendant was arrested at Ms home at the same time pursuant to an arrest warrant dated that day for possession of marijuana. A motion to suppress the package and the letter (and part of an envelope) was heard and denied in advance of the trial.

FACTS PERTINENT TO SEARCH ISSUES

Except where otherwise indicated the facts here stated were elicited at the trial rather than on the hearing of the motion to suppress.

A short time prior to August 19, 1968 Detective Charles Croce of the New Jersey State Police received information from the United States Bureau of Customs that during a routine examination of packages mailed from Vietnam their agents had discovered a package containing marijuana addressed to defendant Wilbert Smith, 319A Springfield Avenue, Penns Grove, New Jersey. Control of the package was assumed by the customs authorities, acting in cooperation with the postal authorities. The package reached the Penns Grove Post Office on August 15, 1968 and was at once examined by Detective Croce to determine the contents. He was satisfied that it was marijuana.

On August 19, 1968 Detective Croce made application for a search warrant for the Smith home. His supporting affidavit averred that he was experienced as a narcotics investigator and that he had “probable cause” to believe that Smith was in possession of “Marihuana” [sic] at the premises in question. His belief was rested on information from federal customs and postal officers (named) that a package containing the drug was mailed August 6, 1968 from the Ear East, purportedly by one SP/4 B. Brown, with an indicated serial number, addressed to Smith at said premises; that Croce personally examined a sample of the contents and believed it to be marihuana [sic], and that a customs officer had informed him that examination of the substance by federal authorities had determined it to be such. (Testimony at the trial was to the effect that an investigation showed there was no such person as SP/4 B. Brown with the specified serial number.) Á warrant in the tenor noted above issued the same day — August 19, 1968 — to search defendant’s one-story residence.

An effort by local postal personnel to deliver the package to defendant on August 19 (after issuance of the warrant) failed because defendant and his family were on vacation. A slip was left at the house notifying defendant to pick up the article at the post office (the package being registered). After another abortive effort by the officials to effect delivery, defendant finally obtained possession of the package on August 28, 1968 under the following circumstances. At the motion hearing defendant testified that on August 27, 1968 he received a notice to pick up the package. On August 28, 1968 he asked a fellow-employee, Baylor, to pick up the package for him as defendant’s work shift did not end prior to the postoffiee closing hour. Trial testimony disclosed that the police maintained surveillance as Baylor picked up the package and followed him to his home. The police obtained Baylor’s cooperation, and waited in and near his home for defendant’s arrival. Defendant came and received the package from Baylor. He was seen to place the package in the trunk of his car. The police followed him home in the course of a journey during which he did some shopping and placed the purchases in the car (not the trunk). The police were unable to ascertain whether or not defendant brought the package into the house from the car on arrival.

On the motion to suppress, defendant testified that he had placed the package in his car trunk after obtaining it from Baylor, and that he did not open the package and was ignorant of its contents. He was in his house when the police officers knocked on the door. Defendant’s wife answered the door, whereupon the police officers identified themselves and stated their belief that defendant had narcotics in his possession. They then informed defendant that they had a search warrant and read it to him. However, he was not advised of his rights nor-placed under arrest. The police asked him where the package was and he told them it was in the car trunk. They asked, “did [he] mind getting it, and [he] told them no, [he] didn’t mind,” because he thought the search warrant covered the car. He opened the trunk and gave them the package. Upon returning to the house they asked him if he had “any personal papers.” He responded affirmatively, and they went into his bedroom and “went through the personal papers and what not.” They took a letter, and a torn piece of an envelope from another letter from the same sender. The letter was from one P.E.C. Burton Domenick in Vietnam. Defendant could not recall whether the letter was opened or sealed when taken. Detective Croce read the letter to Sergeant Peeves of the local police.

The record of the motion to suppress does not show the contents of the letter, but that of the trial indicates the letter was dated August 11, 1968, was addressed to defendant, refers to “that bag [and “that smoke”] I sent you,” and explains methods of “cutting” the contents so as to enable defendant to “make well over $3,000” therefrom. It also tells defendant to send Domenick “the bread” (money) to a new address if he receives “the smoke.” After the instructions for “cutting” the letter concludes: “Frankly, I shouldn’t have to tell you all this because I know you have been out there just as long as I have.”

The State’s proofs on the motion to suppress were confined, essentially, to testimony by Sergeant Peeves that upon arrival at the Smith home on August 28, 1968, and before any search or seizure, he read and served both the search warrant and arrest warrant upon Smith, and placed him under arrest. On cross-examination, he said he asked Smith no questions, that he advised him of his “rights,” and that he knew the package was in the car because he “saw it” (presumably en route to the house). The court refused to allow defendant to cross-examine the witness concerning the details of the search on objection by the prosecutor that this would exceed the scope of the direct examination. At the trial, however, Reeves and other officers testified, in substance, that after Reeves placed Smith under arrest the latter inquired as to the reason, and Reeves told him they wanted the package he got from the postoffice. Smith told them it was in the car, opened the trunk and handed the package to them. Before this occurred, Reeves informed defendant of his Miranda “rights.”

After getting the package the officers searched a bedroom and found the Domenick letter and two envelopes in a bureau drawer. One envelope contained the letter. The other envelope bore Domenick’s name as sender of another (unidentified) letter. On cross-examination Reeves said he had not asked Smith where he kept his papers, but went directly to search the bedroom and found the letter. He did not search elsewhere in the house.

In denying the motion to suppress the judge (who also conducted the trial) held, responding to the respective contentions of defendant: (1) the search warrant was adequately supported by probable cause to believe marijuana was in the house; (2) the seizure of the package was valid under the warrant, the car not being “remote” from the house; alternatively, (a) defendant consented to the search of the car, and (b) the search of the car was lawful as incidental to the arrest; (3) the letter was properly seized in a search incidental to arrest because it was written “in connection with the traffic or the method of disposing of ox selling this contraband.”

Defendant poses the same search and seizure questions before us as he did below.

I. RESTRICTION OE CROSS-EXAMINATION ON MOTION TO SUPPRESS

At the outset of our consideration of the search issues it must be observed that the motion judge was ill-advised in limiting cross-examination of Sergeant Beeves as to the details of the search conducted by him. Since the State was pursuing the alternative theory of justification for search and seizure of both the package and the letter as incidental to a valid arrest, independent of reliance on the search warrant, the burden of proof was to that extent on the State, see State v. Scrotsky, 39 N. J. 410, 414 (1963), and full examination of the police officer on the details of the search was highly appropriate, if not absolutely necessary. Por reasons to be indicated in our discussion below as to the validity of seizure of the letter, there will have to be a remand to elucidate the reasons for and details of the search of defendant’s private papers. As to the other questions of search law involved, however, since the factual versions of both sides came out at the trial, and both parties have cited and relied upon trial testimony as well as the proofs adduced on the motion, we will do likewise. In view of our conclusions, no prejudice will thereby be visited on defendant.

II. VALIDITY OP THE SEABCH WABBANT

Defendant argues that the warrant is defective for lack of probable cause since the proofs at the trial show that the package of marijuana was, to the knowledge of the police including Detective Croce, affiant on the affidavit to secure the warrant, never in the defendant’s home prior to the issuance of the warrant. However, the facts mentioned were not in the knowledge of the issuing judge. The judge may have deduced from the affidavit that it was probable that the package had already reached the home by virtue of the presumption of transmission of the mails in due course.

The problem presented peripherally implicates the issue, not here briefed by the parties, whether a search warrant will be invalidated on a showing that a statement or eonelusion by tbe police affiant was untrue to his knowledge. Our courts have not expressly passed on the controversial question whether, on a motion to suppress, proof of that nature will be entertained, although the discussion in State v. Burnett, 42 N. J. 377, 388 (1964), seems to imply a negative opinion. Por the majority viewpoint see People v. Bak, 45 Ill. 2d 140, 258 N. E. 2d 341 (Sup. Ct. 1970); contra: People v. Alfinito, 16 N. Y. 2d 181, 264 N. Y. S. 2d 243, 211 N. E. 2d 644 (Ct. App. 1965). In the present case the fact is indisputable from the record, without the necessity of further testimony, that the affiant knew at the time the warrant issued that the package was not at defendant’s home but was still in the possession of the postal authorities, the plan of the authorities being to arrest defendant later in the day, concomitant with an intended delivery of the package to the home at that time. Moreover, from the affidavit itself it clearly appeared that the package had been diverted from the ordinary course of delivery of the mails by two inspections of its contents, so that a conclusion of probable antecedent delivery in the ordinary course of the mails was doubtful at best. Thus, on the total showing, and since other considerations lead us to conclude nevertheless for legality of the seizure of the drug, to which the warrant was specifically directed, we shall assume the invalidity of the search warrant for purposes of this opinion.

III. SEIZURE OP THE PACKAGE

The much broadened authority of the police to search motor vehicles on probable cause without warrant, under the most recent decisions of the United States Supreme Court and our own Supreme Court, leave us with no doubt that the taking of the package of marijuana was valid on that approach. See discussion infra. We therefore will not dwell at length on the other bases of justification for that seizure advanced by the State — consent of. defendant and search incidental to arrest. The trial court’s conclusion that there was effective consent, while supported by the language of request and acquiescence furnished by the testimony of defendant himself (“did he mind” * * * “no, he didn’t mind”), and see State v. King, 44 N. J. 346 (1965), is nevertheless cast into some doubt by the fact defendant may well have believed he was required to give up the package upon the official display of a search warrant. See Bumper v. North Carolina, 391 U. S. 543, 88 S. Ct. 1188, 20 L. Ed. 2d 191 (1968).

As to the theory of search of the car incidental to defendant’s arrest in the house, this would seem vulnerable by plain analogy from the recent invalidations, even on a pre-Chimel basis, of searches of a house purportedly incidental to arrest just outside the house, as not sufficiently within the “immediate vicinity” of the arrest. Shipley v. California, 395 U. S. 818, 819, 89 S. Ct. 2053, 23 L. Ed. 2d 132 (1969); Tale v. Louisiana, 399 U. S. 30, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1910).

We conclude, however, that defendant’s turning over of the package to the officers was constitutionally harmless in a Fourth Amendment sense, since they had the right, even without a warrant, to invade the car to look for the package on probable cause to believe that it contained marijuana, an instrumentality of crime and contraband, and that it was in the vehicle. Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1915, 26 L. Ed. 2d 419 (1910).

In Chambers a car which the police had probable cause to believe was used in a service station robbery earlier that day was stopped by the police and its occupants arrested. The car was removed to the police station and there searched without a warrant, with the resultant discovery therein of loaded revolvers. In sustaining the validity of the search (without reliance upon the exception for searches incidental to arrest; see Preston v. United States, 376 U. S. 364, 367, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964)), the court reviewed the law concerning warrantless searches of automobiles since Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), when it was first declared that because of its ready mobility a motor vehicle may be searched by law enforcement officers on the spot without a warrant on probable cause to believe the car contains articles the police are entitled to seize. In pondering the question whether the subsequent immobilization of the vehicle (involved in Chambers) in the hands of the police vitiated the “mobility” rationale for search without a warrant the court said:

On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrant-less seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the ear’s immobilization until a warrant is obtained. [399 U.S. at 52, 90 S. Ct. at 1981]

In the instant ease there was under the evidence probable cause for the officers to believe the package was either in the house or in the car. Having been told by defendant before any search that the package was in the car, probable cause as to location in the car was pinpointed and confirmed. The car remained a mobile conveyance, and, under the explicit rationale of Chambers, supra, the officers had the choice of holding the car while going for a search warrant expressly directed to the vehicle or searching it on the spot. Therefore, doing the latter would have been legally unexceptionable. See also State v. Boykins, 50 N. J. 73 (1967); State v. Barnes, 54 N. J. 1, 8-10 (1969), cert. den. 396 U. S. 1029, 90 S. Ct. 580, 24 L. Ed. 2d 525 (1970); State v. Hock, 54 N. J. 526, 534-535 (1969).

The officers thus clearly having had the right without a warrant to enter the ear to take the illicit package, even without the defendant’s consent, it is immaterial that his consent may have been involuntary and that the entry cannot be defended as incidental to the arrest.

IV. SEARCH AND SEIZURE OP THE LETTER

We approach this issue on the basis of the State’s alternative position that the letter was properly seized in a search of the house incidental to the arrest of the defendant.

Defendant’s first attack upon this position is that the search of the bedroom where the letter was found was unreasonable as too remote from the locus of arrest — the room near the doorway •— citing Chimel v. California, supra (395 U. S. at 763, 89 8. CL 2034). It was there held that the police could not, incidental to an arrest in one room of a dwelling, search another. However, the United States Supreme Court has not yet held that Chimel is to be applied retroactively, see Shipley v. California, supra (395 U. S. at 819, 89 S. Ct. 2053), and our own Supreme Court has decided against its retroactivity unless required by the United States Supreme Court. State v. Carter, 54 N. J. 436, 449 (1969), cert. den. 397 U. S. 948, 90 S. Ct. 969, 25 L. Ed. 2d 130 (1970). The search and determination below having predated Ghimel, we will not follow that decision in the present ease, but rather the rules as to scope of search incidental to arrest reflected by prior law, principally exemplified by Harris v. United States, 331 U. S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947). See also State v. Doyle, 42 N. J. 334 (1964).

Under the cases last cited the search of the bedroom of the instant one-story house was not unduly remote from the room where defendant’s arrest had been effected. The search was therefore not prevented from being classified as incidental to the arrest for reasons of remoteness.

We are presented with, a more substantial issue in defendant’s argument that the search of his private papers resulting in discovery and seizure of the letter was invalid under dicta in State v. Bisaccia, 45 N. J. 504, 515-516 (1965), and possibly under a caveat of the United States Supreme Court in Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 302-303, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Bisaccia anticipated the later holding in Hayden abolishing the previous concept that a search for “mere evidence” of criminal complicity was an invasion of mixed Eourth-Eifth Amendment rights, and it held the rule not applicable to tangible objects. The Chief Justice there traced and refuted the previous notion that seizure of incriminatory objects, papers or otherwise, violated the owner’s Fifth Amendment right not to incriminate himself (45 N. J. at 507-515) (note the cogent support of that analysis in the post -Hayden opinion by Judge Friendly in United States v. Bennett, 409 F. 2d 888, 896 (2 Cir. 1969)). But the Chief Justice noted that the mere evidence rule had almost always been asserted in relation only to search and seizure of private papers (45 N. J. at 511-515), and he emphasized the significant difference between search of private papers and search and seizure of other tangible objects (such as were involved in Bisaccia) in terms of Fourth Amendment values, saying:

There is a marked difference between private papers and other objects in terms of the underlying value the Fourth Amendment seeks to protect. As we have said, private papers are almost inseparable from the privacy and security of the individual. To browse among them in search of anything inculpatory involves an exploratory search indistinguishable from the search under the general warrant which the Fourth Amendment intended to outlaw. See United States v. Kirschenblatt, 16 F. 2d 202, 203, 51 A. L. R. 416 (2 Cir. 1926). Indeed, even a search for a specific, identified paper may involve the same rude intrusion if the quest for it leads to an examination of all of a man’s private papers. Hence it is understandable that some adjustment may be needed, and presumably it is to that end that a search may not be made among a man’s papers for a document which has evidential value alone, [at 515-516]

In Warden, Md. Penitentiary v. Hayden, supra, notwithstanding its total abrogation of the “mere evidence” rule, as such, the court offered this monition:

The items of clothing involved in this ease are not “testimonial” or “communicative” in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment * * *. This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure. [387 U. S. at 302-303, 87 S. Ct. at 1648]

Reflection upon the foregoing expressions of our highest state and federal courts raises two major problems in respect of paper searches: (a) manner, scope and extensiveness of the search, and (b) the possible survival of Eifth Amendment considerations in delimiting the kinds of papers which may be seized.

In respect of (b), however, regardless of the ultimate position the United States Supremo Court may take on the caveat quoted above, it is apparent that the writing here involved was not a testimonial utterance by defendant, and taking it and using it against him therefore not a compelled self-incrimination in the sense of the caveat in Hayden. In any event, moreover, there is no reason to believe there is or will be any change in the pre-Hayden principle that papers which are instrumentalities of crime are always seizable, whatever the incidental incriminating effect on their owner. Harris v. United States, 331 U. S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947); State v. Bisaccia, supra (45 N. J. at 515); United Stales v. Bennett, supra (409 F. 2d at 895-896). The letter here in question was clearly an instrumentality of the criminal enterprise of marketing marijuana in this State. To the extent that the search may be regarded as having been aimed at discovering such an instrumentality, the admonition in Bisaccia, quoted above, against searching a man’s papers “for a document which has evidential value alone,” is not pertinent.

In relation to whether the last-mentioned observation in Bisaccia threatens the validity of the search if regarded as geared for discovering paper evidence of defendant’s knowing possession of the drug, we think not. Bisaccia was written in the climate of continued and apparently unqualified subsistence of the “mere evidence” rule in the United States Supreme Court. But the conceptual foundation of the “mere evidence” rule was completely destroyed by Hayden. And an able post-Hayden opinion for the Second Federal Circuit compellingly argues against the development from the Hayden caveat of a principle for exclusion of seized papers on any Fifth Amendment rationale. United States v. Bennett, supra (409 F. 2d, at 896-897).

Moreover, a considerable volume of authority, even after Hayden, countenances searches for papers and documents, incidental to arrest, not only as to instrumentalities of crime, but as to such as are sought in the reasonable belief “that the evidence sought will aid in a particular apprenhension or conviction.” See United States v. Bennett, supra (409 F. 2d at 897); United States v. Baratta, 397 F. 2d 215 (2 Cir. 1968), cert. den. 393 U. S. 939, 89 S. Ct. 293, 21 L. Ed. 2d 276 (1968), reh. den. 393 U. S. 1045, 89 S. Ct. 613, 21 L. Ed. 2d 597 (1968); State v. Bullock, 71 Wash. 2d 886, 431 P. 2d 195 (Sup. Ct. 1967); People v. Crosslin, 251 Cal. App. 2d 968, 60 Cal. Rptr. 309 (Ct. App. 1967). For a similar approach in search warrant cases, see United States v. Munroe, 421 F. 2d 644 (5 Cir. 1970); Morales v. State, 44 Wis. 2d 96, 170 N. W. 2d 684 (Sup. Ct. 1969); Gurleski v. United States, 405 F. 2d 253 (5 Cir. 1968), cert. den. 395 U. S. 981, 89 S. Ct. 2140, 23 L. Ed. 2d 769 (1969), reh. den. 396 U. S. 869, 90 S. Ct. 37, 24 L. Ed. 2d 124 (1969); United States v. Zovluck, 274 F. Supp. 385 (S. D. N. Y. 1967).

Further, while forced by the then existing state of the federal cases to iterate the “mere evidence” limitation as to private papers, the court in Bisaecia did say: “Even as to private papers, this hnere evidence’ limitation upon a search is not an easy line to defend * * (45 N. J. at 516).

Finally, some weight as to the Supreme Court’s present intent may be given to the fact that in revising the practice rules in 1969 the court adhered, in the provision governing objects seizable pursuant to a search warrant, to the previous formulation: “* * * property, including documents, books, papers and any other tangible objects * * * constituting evidence of or tending to show any * * * violation [of the penal laws of this State].” Compare former R. R. 3:2A-2, 7, with present R. 3:5-2.

We consequently are confident that notwithstanding what was said in Bisaecia any general prohibition against seizure of papers or documents merely because they may evidence the owner’s complicity in crime is no longer viable.

We thus arrive at a consideration of problem (a), supra, in relation to its effect upon the legality of the seizure of the letter. As noted in the quoted excerpt from Bisaecia, supra, strictly Fourth Amendment considerations properly forbid wholesale rummaging or browsing through a porsons’s papers in the unparticularized hope of uncovering evidence of crime. See Von Cleef v. New Jersey, 395 U. S. 814, 89 S. Ct. 2051, 23 L. Ed. 2d 728 (1969) : United States v. Zive, 299 F. Supp. 1273 (S. D. N. Y. 1969) (both cases, search incidental to arrest); cf. People v. Martin, 49 Misc. 2d 268, 267 N. Y. S. 2d 404 (Sup. Ct. 1966) (search warrant). Emphatic reiteration of the same concern has recently been evidenced by the limited States Supreme Court in Chimel, supra (395 U. S. at 767, 89 S. Ct. 2034), in citing and quoting from Judge Learned Hand’s opinion in Kirschenblatt (also quoted in Bisaecia), condemning the rummaging “at will” through private papers “in search of whatever will convict” (16 F. 2d 202, 203).

Difficulties in reconciling the prohibition against “exploratory” or “rummaging” searches with the permission to look for and seize writings which are either instrumentalities of crime or reasonably believed likely to “aid in a particular apprehension or conviction,” see United States v. Bennett, supra (409 F. 2d at 897), confront the law enforcement officer attempting to do his job efficiently and yet to avoid wanton invasion of the privacy of the owner of the papers. The character of a paper ordinarily cannot be known until read or inspected, at least cursorily. Finding a paper within the seizable categories, reasonably believed to be present in the physical area of the premises lawfully searchable, may well require perusal, to a varying degree, of innumerable documents before the target writing is found.

Notwithstanding the complexity of the problem and the lack of direct and specific authority in the area, we must formulate reasonable and practicable criteria for admeasuring the legality of the procedure here used in the seizure of defendant’s letter, giving due weight both to constitutional and law-enforcement considerations. We are, however, handicapped by the insufficiency of proofs in the record of the motion to suppress (or of the trial) to permit a determination as to just how extensive, random, detailed or needlessly exploratory, if at all, this search actually was. We know only that there is a dispute as to whether the officers asked defendant where his private papers were; that some kind of a search of papers occurred, and that the letter was found in a bedroom. Nor can we on this record make a definitive finding that the purpose of the officers was only to search for communications from Vietnam respecting an impending shipment of drugs to defendant from someone in that country, albeit one might well so surmise. If that be the fact, the officers should so testify. A search limited to that objective would clearly be permissible, regarded as a quest for either an instrumentality of crime or for evidence reasonably believed to be on the premises and to have evidential capacity for aiding in defendant’s conviction on the charge for which he had been arrested. See United States v. Bennett, supra (409 F. 2d at 897).

If the totality of the evidence indicates that the officers’ purposes and methods of search were so guided and that the physical areas covered, the quantum of papers examined and the extent of perusal engaged in were no more than was reasonably necessary to find and take lawfully seizable papers, the search and seizure of the letter should be adjudged valid and free of the connotation of an “exploratory search” in the invidious sense.

The matter will accordingly be remanded for a hearing and detailed findings of fact and conclusions on the issues outlined relative to the search resulting in the seizure of the letter.

V. ALLEGED DISQUALIFICATION OF JUDGE ON MOTION TO SUPPEESS

Defendant contends the judge who heard and denied the motion to suppress was disqualified because he issued the search warrant. He cites R. 1:12-1 (d), disqualifying any judge who “has given his opinion upon a matter in question in the action.” The rule is not apposite. The action in issuing the warrant is ex parte and merely appraises the prima facie showing of probable cause. The motion proceeding is adversarial, and the judge adjudicates all questions of law and fact posed on the challenge of the validity of the warrant. Note also that the rule recites that paragraph (d) “shall not prevent a judge from sitting because he has * * * given his opinion on any question in controversy in the pending action in the course of previous proceedings therein.”

It is significant that notwithstanding the regular practice since adoption of the search warrant procedure rules in 1963 for issuing judges to sit on motions to suppress, neither the cited rule nor that dealing with procedure on motions to suppress was changed by the 1969 rules revision in any respect here pertinent.

YI. ADMISSIBILITY OE THE LETTER AS AGAINST THE HEARSAY RULE

Finally, defendant contends there was fatal error in the admission of the letter over his objection on hearsay grounds. The State successfully defended its proffer on the ground the letter was part of the res gestae and was offered to show knowledge by defendant of the contents of the package he arranged to have picked up at the postoffice and turned over to him. We are satisfied that the letter was not incompetent as hearsay since it was not offered to establish the truth of the statements of fact contained therein, and defendant made no request for limiting instructions to the jury should his objection not be sustained. When a fact relating to an out-of-court declaration is relevant to a fact in issue without regard to the truth of the fact declared, admission of the declaration does not violate the hearsay rule. 6 Wigmore, Evidence (3d ed. 1940), § 1788 at 234. See Evidence Rule 63; State v. Stilwell, 97 N. J. Super. 424, 428 (App. Div. 1967). Here defendant’s receipt and retention of the letter, independently of the truth of the factual assertions therein, tended to show defendant had reason to believe Burton Domenick was sending him marijuana from Vietnam and expected him to market it and share the proceeds with him.

Examples of similar permitted uses of out-of-court declarations to establish incriminating knowledge by a defendant are common. See McCormick, Evidence (1954), § 228 at 464-465; 31A C. J. S. Evidence § 257, at 677; Brown v. United States, 403 F. 2d 489 (5 Cir. 1968), cert. den. 397 U. S. 927, 90 S. Ct. 932, 25 L. Ed. 2d 106 (1970); United States v. Grow, 394 F. 2d 182 (4 Cir. 1968), cert. den. 393 U. S. 840, 89 S. Ct. 118, 21 L. Ed. 2d 111 (1968); People v. Tahl, 65 Cal. 2d 719, 56 Cal. Rptr. 318, 423 P. 2d 246 (Sup. Ct. 1967), cert. den. 389 U. S. 942, 88 S. Ct. 301, 19 L. Ed. 2d 294 (1967).

In view of the foregoing conclusion we need not pass upon the State’s alternative position that the letter is admissible as an exception to the hearsay rule—i. e., a statement of the declarant’s state of mind in respect of plan, motive or design. Evidence Rule 63(12); cf. Hunter v. State, 40 N. J. L. 495, 541 (E. & A. 1878). The argument is that the letter shows Domenick’s state of mind as including defendant in his scheme, and that that fact, coupled with defendant’s receipt and retention of the letter, later acceptance of the package from the post office through another, and the temporary placement of it in defendant’s locked car trunk, in totality bespeak guilty participation in the scheme.

For the reasons stated in Part IV of this opinion the matter is remanded to the County Court for a hearing, findings of fact and conclusions consistent with the views there set forth. These should be completed and returned to this court within 45 days. We retain jurisdiction. The parties may apply to the clerk thereafter for instructions as to further briefs and/or argument.

       At the trial defendant testified Domenick was a relative of his wife who had visited him in July 1968 and proposed sending him marijuana; that he then absolutely forbade it, but suggested Domenick send his daughter a doll from Vietnam.

       But this ease is not to be taken as a precedent that the validity of a search can generally be tested on facts not adduced on a motion to suppress.

         Chimel v. California, 395 77. 8. 752, 763, 89 8. Ct. 2034, 23 L. Ed. 2d 685 (1969), restricting searches incidental to arrest to the arrestee’s person and the area within his immediate reach. And see infra.

       Defendant makes no Miranda argument on this appeal.

       The record does not indicate the number of rooms in the house, but there is every likelihood it was a dwelling of moderate size.

       The restrictive effect of Chimel v. California, supra (395 U. S. 762, 89 S. Ct. 2034) on searches incidental to arrest should be substantially to eliminate future “exploratory” searches, whether of papers or otherwise, in that category. But, as noted, this case is being decided on pre-Chimel principles.

       Even if, e. g., only within a multi-drawered desk within the reach of a person arrested, and therefore within the range of permissible search incidental to arrest under Chimel, supra.

       The inherent complexity of this problem has inspired the proposal by the Council of the American Law Institute and its Reporter on the proposed Model Code for Pre-Arraignment Prodeeure of a procedure for identification of documents subject to seizure under a warrant and for a hearing before a judicial officer in the case of intermingled documents having the purpose of confining the seizure to authorized documents with a minimum of perusal of unauthorized documents. A. L. I. Model Code of Pre-Arraignment Procedure, (Tent. Dr. No. 3, 1970), § SS 2.05. Similar procedures are prescribed for searches conducted incidental to arrest. Id., § SS 3.01(3).


author: Mountain, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH FRANCIS VASSALLUZZO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 7, 1970
    Decided January 20, 1971.
    Supplemental Opinion March 11, 1971.
    See 114 N. J. Super. 153.

      Before Judges Goldmann, Leonard and Mountain.

      Mr. Harry A. Goldenberg, assigned attorney, argued the cause for appellant.

      Mr. Solomon Forman, First Assistant Prosecutor, argued the cause for respondent (Mr. Robert N. McAllister, Jr., Atlantic County Prosecutor, attorney; Mr. Ernest M. Curtis, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Mountain, J. A. D.

Defendant pleaded guilty to a charge of entering with intent to rob (N. J. S. A. 2A:94—1) and to a charge of robbery (N. J. S. A. 2A:141-1). He received a sentence of 5-10 years in State Prison on the latter charge and a sentence of 3-5 years on the former, to be served consecutively. His appeal is directed to these sentences.

Defendant first argues that he has received two sentences for what is in effect a single criminal act, the argument being that entering with intent to rob merges into the more serious crime of robbery. Reliance is placed upon such eases as State v. Hill, 44 N. J. Super. 110 (App. Div. 1957) (assault with intent to rob and robbery), and State v. Riley, 28 N. J. 188 (1958) (assault with intent to commit rape and rape). In these cases the lesser crime of assault with intent is held to merge with the greater crime. These decisions, however, are not applicable here. This case is controlled by State v. Byra, 128 N. J. L. 429 (Sup. Ct. 1942), aff’d 129 N. J. L. 384 (E. & A. 1943), cert. den. 324 U. S. 884, 65 S. Ct. 1025, 89 L. Ed. 1434 (1944). In considering this precise question the court there observed:

* * * that under a count for breaking and entering with intent, the proof of the crime is complete when those two elements are shown, irrespective of whether there was a carrying out of the intent, and sentence may be pronounced accordingly; and * * * the actual perpetration of the larceny or other crime is no part of the offense of breaking- and entering with intent but is a separate and distinct offense at common law, and treated in a separate section of our Crimes Act. [at 431-432]

Our courts have consistently followed this decision. State v. Louden, 21 N. J. Super. 497 (App. Div. 1952); State v. Compton, 28 N. J. Super. 45 (App. Div. 1953); State v. Quatro, 44 N. J. Super. 120, 127 (App. Div. 1957), cert. den. 355 U. S. 850, 78 S. Ct. 73, 2 L. Ed. 2d 60 (1957); State v. Craig, 48 N. J. Super. 276 (App. Div. 1958); State v Simmons, 98 N. J. Super. 430, 440 (App. Div. 1968), aff’d 52 N. J. 538 (1968), cert. den. 395 U. S. 924, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969). Entering, whether with or without breaking, accompanied by the intent to commit a felony, and any subsequent larceny or robbery are separate and distinct offenses. There is no merger.

The building that was entered in this case was a tavern and it is suggested that since it was open to the public, defendant’s entry cannot be condemned as a criminal act. The point is novel in this State but has been considered elsewhere. It is generally held that the invitation extended to the public is not intended to include a person who enters íot an improper or criminal purpose. In a ease involving theft from the Chicago Historical Society Museum, it was said,

The opening of a museum’s doors to the public is an invitation to enter for the lawful purpose of viewing the exhibits on display. The authority of one who accepts such invitation is necessarily coincident with the terms of the offer, and it would be contrary to reason and ordinary human understanding to deduce that the welcome extended under those circumstances includes authority to enter for any different purpose, especially one which is unlawful or criminal. We therefore hold that the entry into an establishment which is open to the public, with the intent to commit a felony or theft, is without authority. [People v. Schneller, 69 Ill. App. 2d 50, 216 N. E. 2d 510, 512 (App. Ct. 1966)]

To the same effect, see McCreary v. State, 25 Am. 1, 212 P. 336 (Sup. Ct. 1923) (room to which defendant had legitimate right of access); Pinson v. State, 91 Ark. 434, 121 S. W. 751 (Sup. Ct. 1909) (saloon); People v. Deptula, 58 Cal. 2d 225, 23 Cal. Rptr. 366, 373 P. 2d 430 (Sup. Ct. 1962) (bowling alley); State v. Baker, 183 Neb. 499, 161 N. W. 2d 864 (Sup. Ct. 1968) (store). We agree with these authorities.

Finally, it is urged that the sentencing judge improperly increased the aggregate sentence because of defendant’s failure to appear for trial upon the scheduled date. The record does not sustain the contention. The judge did allude to defendant’s failure to appear, but there is no showing that he imposed a more severe sentence for this reason than would otherwise have been the case. The punishment is neither manifestly excessive nor unduly punitive and seems fittingly responsive to the crime. Accordingly, we affirm.


author: Sullivan, P. J. A. D.

text:
    MAL-BROS. CONTRACTING CO., APPELLANT, v. JOHN C. KOHL, COMMISSIONER OF TRANSPORTATION, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 11, 1971
    Decided January 18, 1971.

      Before Judges Sullivan, Collesteb and Labbecque.

      Mr. Justin P. Walder argued the cause for appellant (Mr. Jeffrey Barton Gahn, on the brief; Messrs. Schapira, Steiner & Walder, attorneys).

      Mr. David, A. Biederman, Deputy Attorney General, argued the cause for respondent (Mr. Stephen L. Shiftman, Assistant Attorney General, of counsel and on the brief; Mr. George P. Kugler, Jr., Attorney General of New Jersey, attorney) .
   The opinion of the Court was delivered by

Sullivan, P. J. A. D.

Mal-Bros. Contracting Company (Mai) appeals from a determination by the Commissioner of Transportation of the State of New Jersey (Commissioner) disqualifying Mal as a bidder on the grounds of lack of moral integrity.

Basically, MaPs disqualification grew out of its involvement with Kantor Supply Company (Kantor Supply), which featured prominently in the criminal trial of former Newark Mayor Hugh J. Addonizio et at. At that trial Kantor Supply was shown, through the testimony of Irving Kantor, the key government witness, to have been a dummy corporation which existed only for the purpose of siphoning moneys out of construction contracts as “kickbacks” to public officials. Mai was named in the testimony as having delivered checks to Kantor Supply against fictitious invoices.

Acting on this and other information, the Commissioner held a preliminary hearing as to MaPs right to retain its qualification as a bidder on transportation work. At a preliminary hearing at which Mai was represented by counsel it was informed that its moral integrity and responsibility was the only issue. "Specifications” as to MaFs alleged lack of moral integrity were read into the record.

At the continued hearing held about a month later, Louis J. Malanga, one of the three brothers constituting the Mai partnership, testified. He admitted that Mai had had no legitimate business dealings with Kantor Supply, although it had made checks payable to that company. His explanation was that MaFs principal supplier, one Gallo, had presented him with vouchers from Kantor Supply and asked him to make out a Mai check to Kantor Supply for the amount of the invoice. At the same time he said Gallo would give him his check for the same amount, or a subsequent adjustment would be made in terms of moneys due from Mai to one of the Gallo companies. Malanga said he did not know why Gallo wanted it done this way and Mai went along strictly as an accommodation.

The Commissioner’s determination, dated December 2, 1970, found Mai to lack the moral integrity to qualify as a responsible bidder. The ruling was bottomed on three principal items:

1. The record of the Addonizio trial, which implicated Mai in the illegal kickback operations of Kantor Supply. The Commissioner found Louis J. Malanga’s explanation of the involvement to be incredible.

2. The facts underlying the indictment against Louis and George Malanga, which charged them with falsifying MaFs income tax returns as to the amount of purchases included in the cost of goods sold.

3. The incident involving George Malanga’s being held in contempt by the U. S. District Court for failing to produce certain Mai records for grand jury inspection. The records were produced after Malanga had been jailed.

On this appeal Mai argues:

(1) The statute regulating the classification of bidders on State Highway Department projects, N. J. S. A. 27:7-35.1 et seq., does not make moral integrity a requirement of qualification;

(2) Even if lack of moral integrity were a disqualifying factor, the competent evidence in the record does not sustain the Commissioner’s finding which was bottomed on hearsay and other improper proofs, and

(3) The hearing and determination was contrary to the requirements of the New Jersey Administrative Procedure Act and violated Mai’s right to due process of law.

We find no merit in any of these contentions. The moral integrity of a bidder directly affects its responsibility as a bidder and is one of the criteria which the Commissioner may use in determining the qualification or continuued qualification of a bidder under the statute. Cf. Arthur Venneri Co. v. City of Paterson Housing Authority, 29 N. J. 392, 402 (1959).

The Commissioner’s determination was not based on hearsay or other improper evidence. Indeed, the basic facts on which the Commissioner relied were undisputed. Mai’s issuance of checks to Kantor Supply was admitted. The grand jury investigation of Mai, the contempt conviction of George Malanga, and the indictment of Louis and George Malanga are matters of public record. It is not unreasonable to infer from this sequence of events that these latter matters stemmed directly from Irving Kantor’s testimony at the Addonizio trial.

The Commissioner found Mai’s explanation of its involvement with Kantor Supply to be incredible, and we agree. In short, we conclude that there was substantial competent and relevant evidence in the record to support the Commissioner’s finding of a lack of moral integrity on the part of Mai.

Finally, while we conclude that the disqualification hearing was subject to the New Jersey Administrative Procedure Act and there was not, but should have been, a full compliance with its requirements, we are satisfied that Mai had notice, a specification of the charges, and an adequate opportunity to be heard, so that the essential requirements of the act and due process were met. Mai argues that it was denied the right of confrontation and cross-examination of Irving Kantor, the key witness at the Addonizio trial. However, as heretofore noted, Mal has admitted the essential truth of Kantor’s testimony. Its defense was the “incredible” explanation of its dealings with Kantor Supply.

In view of our holding that the disqualification was proper, it is unnecessary to consider the contention that the readvertisement for bids was illegal.

Affirmed.


author: Per Curiam.

text:
    PASSAIC VALLEY SEWERAGE COMMISSION, A PUBLIC CORPORATION, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. CITY OF PATERSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT AND CROSS-RESPONDENT, AND CITY OF NEWARK, INTERVENOR-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued December 21, 1970
    Decided January 21, 1971.

      Before Judges Cootobd, Kolovsky and Caeton.

      Mr. Joseph L. Conn, City Counsel, argued the cause for defendant-appellant and cross-respondent (Mr. William A. Feldman on the brief).

      Mr. James V. Segreto argued the cause for plaintiff-respondent and cross-appellant (Mr. Thomas E. Durkin, Jr., attorney).

      Mr. William H. Walls, Corporation Counsel and attorney for City of Newark, intervenor-respondent, filed a statement in lieu of brief (Mr. Roger A. Lowenstein, Assistant Corporation Counsel, of counsel).
   Per Curiam.

The main issue here is whether the Passaic Yalley Sewerage Commissioners have authority to assess their member municipalities for certain repairs and improvements to the disposal system.

Plaintiff Commissioners brought this action against a member municipality, the City of Paterson, for the latter’s unpaid balance of the Commissioners’ 1969 assessment representing the municipality’s share of the cost of developing, maintaining and operating the sewerage system. Paterson appeals from the judgment ordering such payment, without interest, and from the dismissal of its counterclaim seeking a declaration as to whether the city has the legal authority to issue bonds for the purpose of paying such assessment. The Commissioners cross-appeal from the denial of interest on the judgment.

We affirm the judgment in favor of the Commissioners and the provision denying interest thereon essentially for the reasons expressed by Judge Joelson in his reported opinion at 107 N. J. Super. 436 (Law Div. 1969). As to the denial of interest, see also Consolidated Police & Firemen’s Pension Fund, Commission v. Passaic, 23 N. J. 645, 654 (1957).

We conclude that under the circumstances which now exist the dismissal of the city’s counterclaim for a declaratory judgment as to whether it could issue bonds to finance the Commissioners’ 1969 assessment should also be affirmed. At the trial the Commissioners took the position that they had no interest in the manner in which Paterson raised the money to pay its assessment. Judge Joelson determined that there was no justiciable issue presented for resolution at that time because there was no adversary before the court. The Commissioners have not changed their position on appeal. However, we do not base our decision on this fact.

The Sewerage Commission established an escrow fund known as “Retainage for Repairs, Replacements and Improvements.” For several years prior to 1969 plaintiff assessed its members annually as to their proportional share of responsibility to that Fund. Paterson paid the retainage assessment for the years 1962 through 1968 but refused to do so for 1969. This refusal was prompted by the Commissioners’ requiring additional monies for modernization and repair of equipment. Paterson’s outstanding share was some $240,000, later adjusted to $217,476.18. The city had paid the remainder of the assessment. Furthermore, as we were informed at oral argument, the City has already paid its 1970 assessment without protest. Only the $217,476.18 portion of the 1969 assessment is outstanding.

The general rule is that it rests in the sound discretion of the court whether or not declaratory relief should be afforded under the Declaratory Judgment Act (N. J. S. A. 2A:16-51). Untermann v. Untermann, 19 N. J. 507, 515 (1955). There are some matters of such public interest and importance which require a decision on the merits that it is desirable to seek an adversary — if one can be found. See, for example, New Jersey Highway Authority v. Sills, 109 N. J. Super. 424 (Ch. Div. 1970); see also Whelan v. New Jersey Power & Light Co., 45 N. J. 237 (1965). The city suggests that such is the case here. Were we convinced of the public need to resolve this issue, an amicus curiae could be appointed as was done in Whelan so as to create an adversary proceeding. However, we are satisfied that no such emergent situation now exists.

We observe that after the filing of the opinion below the Legislature amended the original statute under which the Commissioners were limited to the issuance of bonds in an amount not exceeding ten million dollars for the purpose of raising funds to pay the cost of certain projects (N. J. S. A. 58:14-34.14). Under L. 1969, c. 235, the Commissioners are permitted to issue bonds in unlimited amounts to raise funds to pay for any projects “required by law.” Counsel for the plaintiff advised us on oral argument that the Commissioners intend to issue bonds in substantial amounts to finance future capital improvements. As a result of this intervening legislation, the legal issue for which the declaratory judgment is sought is likely to become academic except as to the year 1969.

Since the public need for resolution of the issue has for practical purposes become academic, we perceive no reason to grant relief under the Declaratory Judgment Act.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM B. EBRON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 12, 1971
    Decided January 21, 1971.

      Before Judges Kilkenny, Halpekn and Lane.

      Mr. George B. Sommer argued the cause for appellant.

      Mr. B. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent {Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. David 8. Baime, Assistant Prosecutor, of counsel; Mr. Anthony J. Fusco, Jr., Legal Assistant on the brief).
   Per Curiam.

Defendant appeals from a judgment of conviction of a four count indictment under N. J. S. A. 24:18-4. He was sentenced to the New Jersey Reformatory for Males and fined $100.

On January 4, 1968 officers from the Newark Narcotic Squad executed a search warrant at premises located at 86 West Kinney Street. In the basement apartment, in which the defendant was in bed, they found a quantity of heroin, cocaine, marijuana and methadone. They also found hypodermic needles with syringes and some Tuinal capsules.

Before the trial the defendant moved to suppress the evidence seized as a result of the execution of the search warrant, arguing, among other things, that probable cause had not been shown for the issuance of the search warrant. The motion was denied.

The affidavit upon which the search warrant was issued was made by Arthur Gockeler, a member of the Narcotic Squad. He stated:

I Arthur Gockeler, have just and reasonable cause to suspect and believe that the following goods, to wit, narcotic drugs, and paraphernalia used in connection with the sale or possession of narcotics are concealed in the premises known and designated as 86 W. Kinney St., whole house, City of Newark, and I have further just and reasonable cause to suspect and believe that the aforesaid premises is being used in connection with a violation of law commonly known and stated as the sale or possession of narcotics, contrary to the statute in such case made and provided.
And the deponent states that the statement above recited is based upon the following facts.
1. I have received information from reliable sources and also from an informer who has proved reliable in the past that William and Sandy Ebron are selling narcotics from their mother, Emma Dee Lynn’s house at 86 W. Kinney St. Mrs. Lynn is currently appealing a [sic] 8-10 year jail sentence for possession of narcotics.
2. The undersigned in company with Dets. Wainen, Jackson, Decker, Petrillo and Pariso, surveilled the premises at 86 W. Kinney St., on the following dates: Jan. 2, 1968 from 1:00 P.M. to 3 :30 P.M., Jan. 3, 1968 from 12:00 p.m. to 2:30 p.m:. and on Jan. 4, 1968 from 11:00 a.m. to 2:00 p.m:. During these times known narcotic offenders observed entering and leaving these premises were: Ruby Gunther, NR+fc 388, Yvonne Raddals, NR^£ 1690, Willa Mae Dungee, NR# 369, Ella Langry, NR^ 1368, Charles Dunn NR^jt 581, Martha Dennis, NR^t 1567, and William Levinson NR^t 50.

On the basis of the facts disclosed above deponent states that he has ample reason to believe that the premises known and designated as 86 AY. Kinney St., whole house, is being- used in violation of law commonly known and stated as the sale or possession of narcotic drugs, contrary to the statute in such case made and provided.

We realize that the County Court in considering the motion to suppress was required to pay substantial deference to the finding of probable causo made by the magistrate. State v. Kasabucki, 52 N. J. 110, 117 (3968). We approach the consideration of whether probable cause existed for the issuance of the search warrant with full deference to the philosophy expressed in State v. Davis, 50 N. J. 16 (1967), cert. den. 389 U. S. 1054, 88 S. Ct. 805, 19 L. Ed. 2d 852 (1968). Our scrutiny, however, must be directed to whether a proper showing of probable canse was made to the magistrate to justify the issuance of the search warrant under the Fourth Amendment of the United States Constitution. Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Robb v. Connolly, 111 U. S. 624, 637, 4 S. Ct. 544, 551, 28 L. Ed. 542 (1883). We cannot consider the result of the search; rather, our inquiry is limited only to the factors presented to the magistrate. Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).

The conclusion in the affidavit submitted to the magistrate was based upon but two points: (1) information received “from reliable sources and also from an informer who has proved reliable in the past,” and (2) limited surveillance of the premises during which times “known narcotic offenders [were] observed entering and leaving these premises.”

The affidavit upon which the search warrant was based was fatally deficient. The mere statement that information has been received from a reliable informant who has proved reliable in the past is insufficient. Even assuming corroboration of reliability, the affidavit must in addition show “a sufficient statement of the underlying circumstances from which the informer concluded” that narcotics were concealed on the premises. Spinelli v. United States, 393 U. S. 410, 416, 89 S. Ct. 584, 589, 21 L. Ed. 2d 637 (1969). Without such a statement the magistrate had no way of telling whether the information was not mere rumor.

In Spinelli the court stated:

We are not told bow the FBI’s source received Ms information— it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. Cf. Jaben v. United States, 381 U. S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345 (1965). In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation. [393 U. S. at 416, 89 S. Ct. at 589.]

Uor is the affiant’s statement that he had seen known narcotic offenders enter and leave the premises, consisting of three separate apartments, a sufficient showing of probable cause. The surveillance might be useful to bolster the reliability of the informer, but it cannot supply the omission of a showing of the underlying circumstances needed to support the tip. Spinelli, supra, at 417, Sibron v. New York, 392 U. S. 40, 62, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).

The affidavit in this case fails to meet the standards established by the United States Supreme Court in Spinelli.

The other points raised on appeal by defendant, that the search warrant was improperly executed and that the indictment should have been dismissed on the principles of double jeopardy, res judicata or collateral estoppel, are without merit. We need not consider whether the trial judge erred in denying the motion for a judgment of acquittal and the motion for a new trial.

The judgment of conviction and the order denying the motion to suppress are reversed, and the matter is remanded to the Essex County Court for appropriate disposition therein.