Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
Defendant Walter Evans appealed to this court from a conviction (July 14, 1960) of possession of narcotic drugs, i.e. , heroin and marijuana, in violation of R.S. 24:18-4. We heretofore determined that the verdict of defendant's guilt was not against the weight of the evidence and we resolved against him the issues on appeal respecting double jeopardy, the court's refusal to admit certain proffered evidence, and the allegations of reversible errors in the charge to the jury. See State v. Evans , 75 N.J. Super. 319 (App. Div. 1962).
Under the authority of Wolf v. Colorado , 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), and Eleuteri v. Richman , 26 N.J. 506 (1958), cert. denied 358 U.S. 843, 79 S. Ct. 52, 3 L. Ed. 2 d 77 (1958), the State's evidence at the time of trial was admissible.
On direct appeal, however, defendant invoked the doctrine of Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (decided June 19, 1961), claiming that the evidence relied upon by the prosecution was illegally seized and, therefore, its admission was "plain error" which warranted reversal of his conviction. Recognizing the pronouncement in State v. Smith , 37 N.J. 481 (1962), that the defense at a pre- Mapp trial should not on a direct appeal be charged with the failure to anticipate such a decision and its effect upon the admissibility of evidence, we held the defendant had timely raised a constitutional question and that his trial record should be reviewed in light of the aforesaid decision of the United States Supreme Court. We were unwilling, however, (1) to presume that the police officers acted without probable cause, illegally entered defendant's premises and consummated an unlawful search and seizure, or (2) to foreclose the State from an opportunity to establish the propriety of any such entrance, the necessitous circumstances if such were the case, and the reasonableness of the protested search and seizure.
Accordingly, the case was remanded to the trial court to permit the State and the defendant to enlarge the record with additional, relevant and clarifying evidence pertinent to those issues. In the interim, the appeal was retained by this court, under mandate that the entire record upon completion of the supplementary proceedings should be returned to us with the trial court's findings as to the validity of any search and seizure that produced evidence upon which defendant's conviction was predicated. State v. Evans, supra , 75 N.J. Super. , at p. 327.
The trial court, on October 8, 1962, received the further proofs of the defendant, and of officers Carter M. Saunders and Robert P. Gingrich on behalf of the prosecution. The original record and a transcript of the later hearing, including the trial judge's opinion and determination that "I find as a fact that there was no reasonable cause here for search and seizure," are now before us for review.
While there are some minor discrepancies in the testimony of the police officials as to the precise details which preceded the search of premises 18 Rutgers Street and the subsequent arrest of Evans, the significant facts are manifest. We briefly narrate the crucial events that transpired.
An anonymous telephone message or "tip" was received at the narcotics office, Newark Police Headquarters, about 10 A.M. on July 27, 1959. Saunders said that the call related to "drugs being dealt out of an address on Rutgers Street. * * * I believe it was 53 Rutgers Street," and that the unknown communicant stated "Walter Evans was a party who was doing this dealing." Evans was described "as being 5, 5-6, something like that; wearing glasses, with a certain look, a smooth look." On two prior occasions during the preceding week, other anonymous phone calls had been received concerning "narcotics being sold from Rutgers Street," but no names or specific addresses had been previously mentioned. Within five or ten minutes after reception of the call on July 27, Saunders and his "partner, Detective Gingrich," drove "in a cab" to Rutgers Street and West Market Street, and for approximately an hour kept the area under surveillance, during which time nothing suspicious or irregular occurred.
Saunders then proceeded to a public telephone booth at the corner, and there ascertained that "W. Evans" was listed in the directory under the address of 18 Rutgers Street. He telephoned the number for that listing and asked the woman who answered the phone for Walter. A male voice answered. Saunders told him that he "needed a fix" and the voice replied, "'Well, I will have to read you first,' or words to that effect. 'I will have to know who you are. So you meet me at West Market Street and Norfolk Street, and then I will see what I can do.'" Arrangements were made for a rendezvous "in about 20 minutes." Gingrich withdrew to a drugstore at the southwest corner of the suggested intersection, where he could observe activities through the store windows. Saunders
remained on the outside and at the appointed time perceived "Evans" walking toward him from the direction of Rutgers Street. He assumed the individual to be "Evans," stating under cross-examination:
"I didn't actually associate the identification from the description, but from the phone call and the time lapsing after the phone call and a person showing, a person showing up at the given corner, and that being the only person on the corner, that is why I came to the conclusion that this was the man."
The suspect passed Saunders, looked at him, turned away and continued walking. The officer then overtook him and asked "something about a job; if anybody wanted a job driving a truck," to which "Evans" replied, "no," and started to walk back towards Rutgers Street. Saunders, who had concluded that the defendant recognized him as an enforcement officer, reported the incident to Gingrich and they decided to pursue the accused who was then proceeding on West Market Street towards Rutgers Street. When "Evans" looked back and saw them following, he "crossed and walked in the opposite direction back down toward Norfolk Street." The officers "cut him off and asked him who he was. He identified himself." Thenceforth, according to the testimony of Saunders, Gingrich "saw a bunch of keys in his [Evans] hand, which he [Gingrich] took." Gingrich testified:
"* * * We caught him on the other side of the street and took him into a hallway. There we searched him. We told him why; that we believed that he was selling narcotics. We told him he is the one we were looking for, and we believed him to have narcotics at his home."
Parenthetically we here note the pertinent testimony of Gingrich at the main trial:
"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 ...