*1 217 rеcord, placed jeopardy were review of the defendants After court legal standards. proper under the conviction convictions, any support not evidence could existing found the whose a position were in the same as defendant defendants thus solely lack of appellate an “was reversed court conviction v. verdict.” Burks guilty] to sustain sufficient evidence [a 1, 2, 2141, 2143, 1 States, 98 S.Ct. United 437 U.S. of both (1978) jeopardy the double clauses Accordingly, legal retrial under prohibit constitutions and federal State v. Mas the “rule of Greene embodying reason.” See principles Burks, 19, 2151, (1978); 57 15 98 L.Ed.2d sey, 437 U.S. Maryland, 395 U.S. 89 S.Ct. supra; Benton v. v. 399 A.2d (1969); Lynch, 79 N.J.
L.Ed.2d
(1978);
N.J.
A.2d 355
;
Tropea,
(1979)
also State
see
den.,
Farmer,
(1966), cert.
For reversal —None. PLAINTIFF-APPELLANT, JERSEY, v. CARY STATE NEW OF WILLIAMS, DEFENDANT-RESPONDENT. 22, 1980 August 1980. Decided Argued April *3 Rosenbach, General, Deputy Attorney argued Louis Simon (John Degnan, Attorney General of New appellant cause for J.
Jersey, attorney). resрondent (Miles argued T. the cause
Salvatore Altano Feinstein, attorney). opinion was delivered
POLLOCK, J.
appeal
this
is whether a warrantless
primary
issue on
nonpublic
areas
search
local law enforcement officers of
of a tavern was
If the
authorized under N.J.S.A. 33:1-35.
unauthorized,
search was
then evidence obtained
the officers
may
suppressed.
suppress
be
The trial court denied a motion to
evidence
Division re-
during
Appellate
found
the search. The
Williams,
versed.
N.J.Super.
1979).
(App.
Div.
granted
petition
We
for certification.
Under facts of this we hold invalid the warrantless search of a tavern for evidence of a crime where required by the search was not authorized statute. I police department Two detectives of the Paterson entered a 22, 1976, January tavern in Paterson on at about 11:15 a. m. to search for a stolen citizens’ band radio. One detective had tip received a about the radio from an days informant two *4 earlier. Neither had a search warrant.
The identified themselves to the bartender and detectives proceeded premises. to search the entire One officer searched tavern, the the other went into the рublic area of the and trap basement a door behind the bar. While in the through basement, storage found three men in a small the second officer money paper slips, room at a table with stacks of and some lottery tally part- which sheets. He called his apparently were squad the vice for The ner and summoned assistance. officers citizens’ two revolvers and a stolen band radio. also found loaded basement, Williams, of the men in the acknowl- Defendant one guns. edged ownership of the the bar with his wife apartment
Williams in an above lived by corporа- in a building was owned and children. The tavern majori- and were which sister her husband tion of Williams’ paid exchange rent in for ty Williams reduced shareholders. building, including cleaning of entire maintenance and He had access to the and furnace in the basement basement. room, kept he tools. storage where possession were for
Williams and
others
indicted
2A:121-3(b); working
lottery,
N.J.
paraphernalia, N.J.S.A.
2A:139-1;
receiving
property,
stolen
N.J.S.A.
2A:121-3(a);
S.A.
2A:151-
permit,
without a
N.J.S.A.
possession
revolvers
hearing,
judge
the trial
denied defendant’s
41(a). After a
the tavern.
suppress
evidence found at
He found
motiоn to
33:1-35
that the
search was authorized
N.J.S.A.
warrantless
(ABC)
jury
laws. A
found
Alcoholic
Control
guilty
except receiving
property.
Williams
counts
stolen
on all
reversed, finding that
the officers
Appellate
Division
NJ.Super.
search. 168
conducting
regulatory
were not
an ABC
held that
33:1-35 authorizes
at 364-365. The court
N.J.S.A.
only
they
specifically
warrantless
if
relate
to enforce-
searches
at
Id.
366-367.
regulations.
ment of
laws
I-I
standing
has
is whether Williams
question
initial
seizure,
illegal search
an
argue that the
conducted an
The United
appeal.
issue first
on
States
raised
Illinois,
Rakas
Supreme Court held in
be
(1978),
standing
should
considered
399.
search and seizure
*5
person may
rights
not violate the Fourth Amendment
of a
Id. at
99 S.Ct. at
defendant.
58 L.Ed.2d 395.
However,
premises:
a defendant need not be the owner of the
legitimate expectation
the test is whether a defendant had a
of
privacy
Id. property
premises
in the
or
involved.
S.Ct. also
See
United States v.
We expectation find that Williams had of in The room was privacy storage storage room. used for the kept Although part premis and of the licensed locked. es, room, public kept it was not a area. Williams in the tools custodian, Consequently, and as a resident and had access to it. standing challenge we hold that Williams has the search and seizure under the Fourth Amendment.
Ill We next whether the search consider was authorized in law or relied, 33:1-35, N.J.S.A. fact. The statute on which the officers provides pertinent part: in The Director of the Division of Alcоholic Control and each other issuing investigations or cause to be make, made, such as he or it authority may shall deem in the administration of this and of and all other proper chapter any concerning now laws or which hereafter be in force and effect alcoholic may beverages, or the distribution or sale or the manufacture, thereof, collection of including taxes and search of thereon, for which the inspection sought building containing license is or has been issued, any same, buildings, licensed examination of the documents books, records, accounts, and of the licensees or on the licensed papers premises. for a and and license, licensee, Every applicant every director, officer, every agent and on exhibit to the director employee licensee, shall, demand, or every issuing other as the case or to his or its or be, authority, may deputies investigators, agents things or or all of matters and which the inspectors issuing director of the division or other as the case be, authority, may hereby investigate, authorized or or and to empowered examine, facilitate, inspect investigation, far as be in their so to in such do, examination or may power any shall not in hinder or or inspection, cause the hindrance they any way delay Investigations,
or manner whatsoever. same, delay any inspections searches of licensed be made without search warrant premises may investigators, issuing his or director, each other deputies, inspectors officer. by any *6 Division of provide ABC Regulations that a licensee shall permit gambling premises, not or a on the N.J.A.C. 13:2-23.7(a). receipt regulation prohibiting There is no the However, goods. general рrohibition against of stolen there is a 13:2-23.5(c). any illegal activity premises. on the N.J.A.C. argues State that the statute authorizes warrantless
searches in the enforcement of the alcoholic beverage control laws, and that enforcement includes the investigation of crimes express without authorization or local State ABC boards. begin
We analysis our of that position with recognition the that liquor “the industry is public affected with a interest” and “has been subject to intense regulation and control . . Heir v. Degnan, 109, (1980). 114 See also California v. LaRue, 109, 390, 409 93 S.Ct. 34 (1972). L.Ed.2d 342 In- deed, a may prohibit state liquor completely. sales Gilhaus Lerner, Co. v. (1979). N.J. Historically, the liquor industry has been viewed as a sensitive industry and has been strictly regulated. Id. at 508-509.
In
States,
Catering Corp.
Colonnade
v. United
397 U.S.
(1970),
S.Ct.
storеroom unaccompanied search was because the distinguished Colonnade the firearms indus recognizing that by unauthorized force. business, highly regulated try, like the is a sensitive without warrants to be industry, inspections the Court held reasonable official conduct. Id. at Paterson, Realty City L.Ed.2d at 92. also Dome Inc. v. See 212, 239-241 (1980). N.J. warrantless
Recognition
government may
authorize
inquiry.
end
searches of certain businesses does not
Colon-
nade and
established that certain businesses such as the
Biswell
subject
governmental
are
over-
liquor and firearms industries
*7
engaging in those businesses
sight
anyone
to such аn extent that
Nonetheless,
expectation
privacy.
of
would have a reduced
protec-
to
in those businesses remain entitled
persons engaged
involved
privacy.
tion of their
of
Both cases
expectation
limited
agents seeking evidence of substan-
inspections by government
regulatory statutes. Neither case
tive violations of relevant
whether,
from the relevant
authorization
considered
without
officer may
enforcement
search
regulatory agency, a local law
business for evidence of crimes.
regulated
of a
recently,
Mоre
the Court struck down a section of
(OSHA)
Health Act
that authorized
Occupational Safety and
premis
make
agents
federal
warrantless searches of business
Barlow’s, Inc.,
Marshall v.
es for violations of the Act.
U.S.
(1978). Marshall,
which
56 L.Ed.2d
S.Ct.
business,
installation
plumbing
involved an
and
electric
by government agents for
inspections
Court was concerned with
distinguished
be
specific regulations.
violations of
businesses,
liquor and fire
tween
such as the
closely regulated
industries,
requiring
ordinary businesses. While
arms
warrants,
war
approved
the Court
inspectors to obtain
OSHA
type
regulated industry of
“closely
rantlеss
searches
”
.
.
at
.
U.S.
involved in
and Biswell
Colonnade
Colonnade,
import
at
at 92. the state Consequently, Therefore, to determine the necessary it is not irrelevant. of their intent. or the relevance subjective of the officers intent *8 (1979). Cf. v. Ercolano, 38-40 Scott v. See State (1978) States, United if a search is applied to determine (objectivе test should be valid). upholding warrantless Division decisions Appellate
Two Zurawski, distinguishable. State searches of taverns are (1966), N.J. 160 b. 47 N.J.Super. 1965), aff’d o. Div. (App. entering by local detectives. On of a tavern involved search conducting a they were tavern, stated that the the officers dispute There was no board. on the local ABC search behalf of that the search was by present authorized In the board. case, the officers authorization. Ran- had no ABC State v. som, tip, 169 N.J.Super. 1979), acting on a (App. police, Div. Although went to a tavern in search of cocaine. the court thought 33:1-35, the search was authorized N.J.S.A. it ex- pressly held was reasonable in light exigent that the search circumstances, of time available to lack obtain a warrant. noted, 169 N.J.Super. previously police at 519. As in this days case had in which to obtain a warrant. two statutory there is no We conclude for a warrantless search of a tavern local law enforcement officers conducting investigation specific their own of a crime without Further, issuing authority authorization. we conclude that the case, Board, Beverage this the Paterson Alcoholic Control had not authorized the search and that the officers were not making investigation an enforcing while ABC laws.
IV Because we hold that the search was not statutorily authoriz- ed, we must given consider whether valid consent was for the questions First, search. Two presented. are whether the licen- Second, see consented to by applying all searches for a license. whether the to the search of premises bartender consented and, so, binding if whether the on Williams. consent application provides: in the license provision
The consent
building
the licensed
consents that
and all
applicant
premises
portions
containing
including
out-buildings, passageways,
all
same,
rooms, cellars,
closets,
vaults,
of the structure of which the licensed
attics,
yards,
every part
buildings
are a
all
used in connection therewith
which are in
part
his
or under his
be
and searched without
possession
control, may
inspected
warrant at all hours
the Director of the Division of Alcoholic
Division
Control,
Taxation,
Director of the
their
authorized
duly
inspec
investigators
agents and all other
tors,
officers.
statute,
Although
than
specific
more
the consent form is
coextensive
Nothing
33:1-35.
indicates that
N.J.S.A.
form was
to allow searches
those
intended
other than
authorized
By filing
application,
the statute.
an
the licensee consented
only to
that are authorized.
stated in
searches
As
*9
regulatory inspection system
Biswell: “In the context of a
time,
carefully
place,
business
that
limited in
scope,
depends
the legality of the search
not on consent but on
statute.”
authority of a valid
U.S. at
S.Ct. at
1596,
The remaining question is whether the bartender con There proof surrounding sented to the search. is no of facts allegedly given by consеnt only bartender. The relevant evidence is that one detective went behind the bar and into the Furthermore, through trap basement a door. there is no evi dence that knew he a right bartender had to refuse the Johnson, (1975). consent. We See State find that met the showing has not burden of bartender the search. Id. at knowingly consented to 353-354. Consequently, unnecessary it is to decide whether valid con binding sent on Williams. bartender would be See Matlock, United States v. (1974). conclude,
To the Fourth Amendment to United States prohibits generally Constitution a search undertaken without a exception permits valid warrant. An warrantless searches for business, peculiar offenses to- the when authorized statute. law N.J.S.A. 33:1-35 does not allow searches local conducting investigation enforcement officers a criminal with out specific authorization. Appellate judgment Division is affirmed.
SCHREIBER, J., dissenting. engaged holds that officers in the majority Law, law, including enforcement of the the Alcoholic may despite not search a tavern without a warrant the written Consequently, consent of the owner. two loaded revolvers as paraphernalia well which had been seized arе now gambling held to have been inadmissible in evidence at the trial of guilt possessing defendant who been had found revolvers working without a materials and permit, possessing *10 notwithstanding result is reached that This lottery. anomalous of unambiguous language was the search sanctioned regulations duly liquor industry and the regulating statute Alcoholic thereunder the Division of promulgated (ABC). Control following sup- motion to was adduced on the evidence 1976, m., 22,
press.
approximately
at
11:00 a.
two
January
On
Joyce’s
went
to
Bar in Paterson
Paterson
officers
in
they had
to
received that stolen CB radiоs
response
information
was
being
were
the bar and sold. The tavern
owned
brought to
consumption
Corporation
plenary
the J.K.J.
whose
retail
storage.
and the
for
A
covered
first floor
basement
license
liquor
a
basement where
was stored
search of
room in the
piles
desk,
money
of
on a
gambling paraphernalia
revealed
radio,
loaded .22 and .38 caliber revolvers. The
stolen CB
placed
present.
were
The three were
defendant and two others
of
possession
under arrest.
was convicted of
Williams
materials,
lottery,
possession
fоr a
of firearms
working
of
permit;
acquitted
receiving
property.
without a
he was
stolen
Supreme
acknowledged
has
that
The United
States
concerned,
industry
liquor
insofar as searches are
is sui
generis
requirement may
dispensed
and the warrant
be
States,
Catering Corp.
397
statute.
v. United
Colonnade
U.S.
72,
774,
(1970),
recognized
90 S.Ct.
Certain industries have such a history over the ble . . . could exist for a stock expectation proprietor privacy 1The invalidated because the relevant statute search that case was did not allow a warrant. for forcible entries without of such an . an such enterprise. embarks [W]hen entrepreneur upon subject business, he has chosen to himself to a full arsenal of voluntarily governmental regulation. S.Ct. at at [Id. 312; L.Ed.2d citations omitted] Biswell, United States (1972), analogous.
L.Ed.2d 87
That
regula-
case involved the
businesses,
tion of firearms dealers whose
like
those in the
industry,
“pervasively regulated”
were
in the interest
crime
prevention.
Id. at
conduct under Fourth . if is Here, Amendment. . to be inspection effective and serve as a credible even deterrent, unannounced, inspec- frequent, tions are essential. In this the of а context, warrant could prerequisite easily frustrate and if the as to and inspection; flexibility time, necessary scope, is to be the afforded warrant would be frequency preserved, protections negligible. at L.Ed.2d [Id. 92] Thus, if Legislature provided the has for warrantless searches taverns, subject such searches will not be to the clause warrant of the Fourth Amendment.
It is well settled that police power regulate the State’s intoxicating liquors field of is practically limitless. Fanwood Rocco, Borough (1960). 33 N.J. liquor The industry is peculiarly subject to strict governmental Discipli contrоl. In re Schmidt, nary Proceedings Against (1979); 79 N.J. 353-354 Sills, Grand (1964). Union Co. v. 403-404 exercise of authority, Legislature its enacted the Alcoholic Law, Beverage seq., compre et N.J.S.A. 33:1—1 which embodies hensive dispensers liquors. control over retail intoxicating of abuses inherent in liquor
This to be remedial law is “intended construed.” 33:1-73. liberally traffic and shall be N.J.S.A. and inspections for searches provides statute provides It that: in which is sold. 33:1-35. also N.J.S.A. Investigations, and be made searches of licensed premises may inspections investigators, his or director, inspectors without search warrant by deputies, officer, issuing аnd [Ib/d; added] each other any emphasis word to mean The act defines the “officer” or . of State any . . of the officer, department police, member Any police having to execute a warrant for or arrest, inspector other the power any person investigator Division Control. 33:1— or of Alcoholic [N.J.S.A. 1(P)1 involving the police Use of to search for violations municipal 33:1-71 beverage contemplated law also N.J.S.A. alcoholic which states: enforcing agencies To this the end that and other shall enforce and effective use all cоntrol, in the interest all officers shall
chapter economy diligence due detect violations of this and shall chapter apprehend offenders .... promulgate general Director to empowers law ABC proper rules control of the distribution regulations Bever- beverages of alcoholic and enforcement the Alcoholic age specifies also Law. 33:1-39. That section N.J.S.A. n subjects: racketeering; regulations following rules cover . . . may gambling, slot ma- . . . criminals; characters; prostitution; disreputable gambling storage; . such other devices; chines аnd . . . . *12 or fair, matters whatsoever as are become in the necessary impartial, may stringent and administration of this chapter. comprehensive [Ibid.] the authority promulgated with that Director accordance 13:2-23.5(c) pertinent part in that N.J.A.C. which states No or suffer the licensed to be . allow, licensee shall permit premises illegal used in furtherance or aid or accessible to or any activity enterprise. acknowledged license on an Lastly, applicant an application Director that prepared by form the building that the and all The licensеd the consents premises portions applicant including containing . . cellars . . . of the . and same, every part licensed . .
structure of which the are . be part may inspected and warrant hours of the Division of searched without at all Director Beverage investigators . Alcoholic Control authorized duly inspectors, officers, agents and and all other added] [emphasis statutory provisions regu- from these anything If is clear lations, investigators or of the Division of inspectors it is that right generally to search a Alcoholic Control have Basement, tavern, without a warrаnt to uncover including its provisions The illegal harboring goods. activities such as stolen same authori- regulations municipal police vest the with the consent). (which acknowledged by the licensee in its written ty police comports in the local Placing that to enforce state as well as local laws. See powers police McFeeley, (Sup.Ct.1947); 136 N.J.L. 107-108 State State v. Sheehan, (Sup.Ct.1936); v. 14 N.J.Misc. 466 40A:14-152. N.J.S.A. approved the previously propri considered and
This Court has
police
local
in
v.
ety
of a
of a tavern
warrantless search
Zurawski,
(1966), aff’g
N.J.Super.
o. b. 89
of alcoholic was authorized ing indicates that the search opinion provisions, regulations and the licen- statutory because see’s consent. not been authorized municipal police if had
Even warrant, a another premises to without statute search the to suppress regard the motion supports the denial of reason majority correctly working lottery. for a charge to the standing must have in order to Williams notes that defendant question merged is now standing challenge the search. This that de inquiry, Amendment so with the Fourth substantive “legitimate showing expectation a fendant has the burden Illinois, 128, place.” Rakas v. 439 U.S. privacy in the invaded (1978) (citations 421, 430, 58 L.Ed.2d 401 99 S.Ct. suppression showing made no such at the omitted).2 Defendant fact, any witnesses or evidence. produce not hearing. In he did motion, the court is limited to the considering suppression Gora, hearing. v. 148 suppression at the State evidence adduced N.J. 275 certif. den. 74 (App.Div.1977), 592 N.J.Super. Jordan, N.J.Super. (App.Div.1971), certif. (1977); v. State any (1971). As failed to show den. 59 N.J. defendant hearing, at the the motion was interest in the searched properly denied.3 two-day lapse claims that a between the
Finally,
majority
somehow necessi-
tip about
radios and the actual search
stolen
State, however,
by prepon-
to demonstrate
2The burden would be on
See,
g.,
exception
requirement.
e.
of the evidence an
to the warrant
derance
N.J.Super.
(App.Div.1976).
Whittington,
v.
51-52
majority
produced
3Many
upon
were not
on the
relied
“facts”
showing
example,
lived in
that the defendant
For
was no
motion.
building,
there
janitor,
kept
storage
in the
room.
was the
tools
apply
possession
materials and
to the
Different considerations
suppression hearing
charges.
time of the
The cases
unlicensed firearms
standing”
granted
challenge
apparently
the search
defendant “automatic
States,
offenses,
v.
362 U.S.
see Jones
United
those
(1960), although
longer
United
this
no
the law. See
States
L.Ed.2d
(1980).
Salvucci,-U.S.-,
The search in this case was made at a tavern police where the had reason to illegal operations believe in violation laws were occurring. expressly have been authorized by statute to conduct warrantless searches to seek out such violations. As law they enforcement officers right had a inspect the licensed to determine whether any such illegal activity Suppressing existed. probative relevant and evidence discovered in the serve, course of that duty only will contrary intent, to the legislative to weaken the Director’s control over highly regulated this industry.
I would reverse.
For WILENTZ, affirmance—Chief Justice and Justices SUL- LIVAN, PASHMAN, CLIFFORD, HANDLER and POLLOCK —6.
For reversal—Justice SCHREIBER—1.