Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Defendant Walter Evans was convicted July 14, 1960 of the possession of narcotic drugs, heroin and marijuana, in violation of R.S. 24:18-4. He was sentenced to State Prison for a term of five to seven years. On appeal to this court defendant invokes the doctrine of Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081, decided June 19, 1961 (overruling Wolf v. Colorado, infra), and argues that it is retrospective in its application and, accordingly, the court committed "plain error" when it admitted evidence which the State had seized as the result of an illegal search. The prosecution contends that the exclusionary rule now applicable to the states, as enunciated in Mapp , only functions prospectively. At the time of oral argument there was then pending before our State Supreme Court, not argued, the case of State v. Smith , in which similar legal issues were raised. Smith has now been decided, 37 N.J. 481 (1962). However, under the facts and circumstances of that case, the search and seizure there involved was deemed reasonable and the evidence questioned therein was held to have been properly admitted. The court determined that "an offense was committed in the 'presence' of the arresting officers."
In the case sub judice there are distinguishable, crucial facts. On July 27, 1959, at approximately 10 A.M., Detectives Carter Saunders and Robert Gingrich of the Newark Narcotic Squad, as a result of "information" received concerning the sale of narcotic drugs at premises 18 Rutgers Street, Newark, had said premises under surveillance. After the lapse of approximately an hour, during
which time "they observed nothing," Saunders telephoned the defendant at that address. He obtained the number from the Newark telephone directory, and asked the woman who answered the phone for "Walter." Saunders made arrangements with the man who came to the phone to meet him at the corner of West Market and Norfolk Streets, Newark. Twenty minutes later Walter Evans "came down the street and stood on the corner." Saunders approached defendant and engaged him in a conversation about a job on a truck and then left to join Gingrich, who was a short distance away. The detectives observed defendant as he proceeded toward Rutgers Street and, when he reversed his direction to cross the street, he was accosted by Gingrich, who testified:
"I grabbed both his hands and steered him into a hallway there. I told him we were Newark police and I accused him of being a dealer in narcotics and of living at 18 Rutgers Street. He denied both. He had in his hand a set of keys, which I had a struggle to take from his hand at that time. * * * I told him we were taking him back to 18 Rutgers Street. He said he didn't live there, he had never been there and he was going to his mother's house on New Street."
This episode of the "keys" was corroborated by Saunders, who said:
"We took him back to 18 Rutgers Street. When we got to the hallway he had a set of keys in his hand. My partner asked him for the keys. He didn't give them to him, so my partner took them and went to the rear and fitted the key into a door. * * * About the time we opened the door a girl came to the front door -- the door that we just opened -- partially clad, and wanted to know what this was all about. Walter Evans told her we were the police. We went into the inner apartment, to a bedroom."
The "girl" in the apartment at that time was Terry Greco, and she testified:
"* * * I heard someone calling me in the hall, 'Terry.' So I went to the door. Just as I was getting to the door I heard a
key in the door and the door was opened and I saw a white gentleman open the door, and he came in and he told me to remain where I was or to go in the bedroom. Then they presented themselves as police officers, and that is when they began to search."
Defendant, however, denied that he had any keys. His stated version, under direct examination, as to what ...