This matter came on for the taking of testimony pursuant to a remand by our Supreme Court to make a finding "as to the validity of any search and seizure which produced evidence upon which the defendant's conviction was predicated." State v. Scrotsky , 38 N.J. 14 (1962).
The evidence, taken at the trial and at the instant hearing, relevant to search and seizure is not in dispute.
The defendant on August 23, 1959 and at all other pertinent dates occupied a three room apartment on the second floor of No. 60 Oriental Street, Newark, New Jersey, having rented the same from Mrs. Seymour, the person robbed of personal property. It was a furnished apartment. The defendant claims he lived there with his wife, Mrs. Scrotsky (sometimes referred to as Wanda), that he had exclusive possession of the apartment with his wife, and that he never gave permission to anyone, including Mrs. Seymour, to enter his apartment. Although Mrs. Seymour had a key to the apartment, there seems to be no contention that she had the right to enter the apartment, especially for the purpose of searching the apartment and seizing any of her property. At any rate, there was no evidence, excepting the key to the apartment, of any right of entry on the part of Mrs. Seymour.
This court, therefore, finds that Mrs. Seymour, in renting the apartment, to the defendant, did not reserve any right of entry to the apartment during the term of said letting.
This court further finds that on August 23, 1959 the home of Mrs. Seymour was burglarized and robbed of one watch, kitchen utensils, sheets and a blanket, and that prior thereto, about 6 P.M. on August 23, 1959, while leaving her home, Mrs. Seymour saw the defendant at her home. Upon her return shortly afterwards she found her home had been broken into and called the police. Sergeant O'Connor responded, and while he was there she saw the defendant go over the fence of her yard, carrying a duffel bag. Both the sergeant and Mrs. Seymour gave chase but lost him. They returned to the building and were in the common hallway of the defendant's and the victim's apartment; the door of the defendant's apartment was open and the sergeant glanced toward the apartment but did not enter.
About 10 P.M. on the same day two police officers and the victim went to the defendant's apartment. He was not there, but Mrs. Scrotsky, who identified herself as the wife of the defendant, was there. They entered the apartment and saw but did not take any of the stolen property of Mrs. Seymour.
Again, on August 24, 1959, Mrs. Seymour and the same officers returned to the defendant's apartment about 7 P.M. and again saw but did not take any of the stolen property. That evening Mrs. Seymour put padlocks on the door of the apartment but did not enter.
On August 25, 1959 Detective Gellerman and Mrs. Seymour entered the defendant's apartment and, in the presence of said detective, Mrs. Seymour took her stolen property. Detective Gellerman made a list of the articles taken and asked her to bring the articles to police headquarters. Neither the defendant nor Mrs. Scrotsky was present at the time. None of the police officers took any of the stolen property, the items were taken by Mrs. Seymour with their knowledge.
There was no warrant for the arrest of the defendant or any search warrant issued and outstanding at any of the times of entry into the defendant's apartment or at the time of the retaking of the stolen property by Mrs. Seymour, although during said period the police were seeking the defendant for
the purpose of arresting him and did make an arrest of said ...