[74 NJSuper Page 511] On June 23, 1961, at approximately 3:00 P.M., two police officers of the Newark Police assigned to the narcotics squad were riding in a police car on 16th Avenue in the vicinity of its intersection with Littleton Avenue in the city. As the officers' vehicle approached No. 71-16th Avenue, which is a three story, multiple-family tenement dwelling, they observed one Lawrence Rainey standing in the entrance way of No. 71. Rainey, whom the officers knew as Hoppergrass, was well known to them as a narcotics user. Upon observing Rainey the officers stopped their motor vehicle and went over to question him concerning his activities in the area. As they came up to Rainey who was still standing in the doorway of No. 71, the officers noticed two other individuals standing in the common hallway of the tenement house. One of the officers passed Rainey and entered into the common hallway; upon entry the officer immediately observed a packet resting on a table in the hallway, and the defendant Nash moving away from the table which contained the packet. The officer
recognized the packet on the table as the type usually employed for packaging narcotic drugs and, further, recognized defendant as a previous violator of the narcotics laws. Upon making these observations the officer seized the packet and directed defendant and his companion, later identified as James Holmes, to stand up against the wall. He thereupon summoned his companion into the hallway. Nash, Rainey and Holmes were arrested for possession of narcotic drugs. Following the arrest the officers conducted a cursory search of the immediate area of the hallway, during which another packet similar to the first seized was found. The second packet was discovered lodged under the table. Each packet upon examination was found to contain nine decks of heroin. Subsequently, the present indictment was returned by the Essex County grand jury charging defendant Nash with illegal possession of a narcotic drug, contrary to the provisions of R.S. 24:18-4.
Defendant Nash now moves to suppress the evidence consisting of the glassine envelopes containing heroin which were contained in the packets seized and found by the officers in the hallway, on the grounds that the search here involved was without a warrant, and that the officers did not have reasonable grounds to make the seizure and arrest defendant.
The principal argument advanced on behalf of defendant may be summarized in the following manner: Defendant claims to have been on the premises 71-16th Avenue as the invitee or guest of a young woman named Parker, who lived on the third floor of the tenement. He claims that on the day in question, at approximately 2:30 to 3:00 P.M., he went to No. 71 and ascended the stairs to the Parker apartment, only to find no one at home. He thereupon descended the stairs and as he reached the first floor landing the officers came into the building with "another fellow" and immediately told defendant to stand up against the wall. Defendant says he was searched by the officers and that nothing was found on him. He was told to leave and,
as he went out the front door, was called back and arrested, since one of the officers had found something in the hallway.
Under these facts defendant claims that he was properly in the building in question; that the entry of the officers into the hallway was illegal, and that, accordingly, all of the activities of the officers, including the subsequent discovery of the narcotics, constituted an illegal search and seizure contrary to the provisions of the Fourth Amendment of the Constitution of the United States. In support of this argument defendant relies on State v. Masi , 72 N.J. Super. 55 (Law Div. 1962); McDonald v. United States , 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948) and Jones v. United States , 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2 d 697 (1960). It is claimed that under these decisions the presence of the officers on the premises in question was illegal since the officers had no reasonable grounds for suspicion, supported by facts known to them, which would warrant a cautious man in believing that a crime was then being committed on the premises. It is further claimed that even assuming that the officers knew Rainey as a previous narcotics violator and also knew defendant in the same capacity, this knowledge in itself, under the circumstances here presented, did not give rise to an emergency situation under which the officers can be said to have been compelled to act as they did in entering the premises and conducting the search. Defendant concludes that the only purpose the officers could have had in entering the building was to conduct a search; everything, therefore, which occurred thereafter must necessarily be deemed illegal.
The decisions in Masi and McDonald, supra , may readily be distinguished from the matter presently before this court. In Masi the officers there involved broke into the premises occupied by defendant without a warrant and thereafter proceeded to search defendant and his home. The building involved in Masi was also an apartment house type dwelling. The front door or entrance to the common hallway of the
building was kept locked, and admission to the hallways of the building could be gained by outsiders only by key or through the voluntary act of one inside. In McDonald , the building there involved was also an apartment-type dwelling. Entry by the officers in the McDonald case was gained through the window of the landlady's apartment and thence to the common hallway of the building, and from there to the defendant's apartment. In both Masi and McDonald the subsequent search after entry was conducted in the living quarters of each of the defendants.
The building here involved, while an apartment-type dwelling, had an unlatched front door by which entry could be freely gained by anyone into the common hallways of the building. This door was used by the officers here to gain entry. In addition, the activities of the officers in making and effecting the seizure complained of, and in making the subsequent arrests, were confined to the common hallway; at no time did the officers enter the living quarters of any tenant of the building.
Defendant contends, however, that since he was an invitee in the building, he has a personal and constitutionally protected interest in the security and integrity of the building, and that as a guest he may expect protection from criminal intrusion therein. This argument is developed, of course, from Mr. Justice Jackson's concurring opinion in McDonald v. United States. It seems to me, however, that in resorting to this ...