For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Francis, J.
[39 NJ Page 412] Defendant was convicted of unlawful entry and of larceny in violation of N.J.S. 2A:94-1 and 2A:119-2. Following sentence to State Prison, the Appellate Division affirmed his conviction and we granted certification. In this court the appeal was predicated in part upon the ground (not raised in the Appellate Division) that the evidence which resulted in the conviction was produced by unlawful search and seizure. The trial and conviction took place on December 3, 1959 and sentence was imposed on January 28, 1960. Defendant's brief in the Appellate Division was filed 19 days before Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961), was decided. After study of the record, we concluded in the light of Mapp that a remand to the trial court should be ordered to permit both defendant and the
State to introduce evidence bearing upon the legality of the search of Scrotsky's premises and seizure therein of the incriminating articles. Our opinion directed such course to be taken and the completed record, with the trial court's finding thereon, be returned to us. 38 N.J. 14 (1962). The testimony was taken, the search and seizure were adjudged lawful and the matter returned to us for review. 77 N.J. Super. 42 (Cty. Ct. 1962).
As indicated in the earlier opinion, there was a conflict in the testimony at the original trial as to defendant's guilt of the offenses charged. The proof was ample, however, to support the jury's verdict and affirmance of the conviction must follow unless the allegedly stolen articles taken from Scrotsky's apartment and put in evidence, were the product of an unconstitutional search. Determination of that question requires an examination of the circumstances under which the police entered the premises.
As our first opinion noted, the complaining witness, Lucille Seymore, owned an apartment building on Oriental Street, Newark, New Jersey. It had three entrances, each of which had a street number, 60, 62 and 66 Oriental Street. Mrs. Seymore occupied an apartment at 66 Oriental Street; Scrotsky and his wife rented an apartment from her on the second floor of 60 Oriental Street. The trial court found she did not reserve any right of entry as part of the letting. In the evening of August 23, 1959, on returning to her residence, Mrs. Seymore found that it had been broken into and some personal effects taken. Very shortly thereafter, she claimed she saw Scrotsky going over the back fence carrying a duffle bag. An unsuccessful hunt for the fugitive was made in the neighborhood, following which Mrs. Seymore and a police officer returned to the apartment building. No effort was made to enter Scrotsky's quarters.
Later in the same evening, Mrs. Seymore and two police officers came to defendant's apartment. He was not home but after identifying themselves, his wife allowed them to enter. While there, Mrs. Seymore pointed out certain articles which
she said were stolen from her. All three left taking none of the property with them.
The next day Mrs. Seymore and the same officers returned to Scrotsky's apartment. No one was at home but the door was unlocked and they went in. She identified her property for them and they told her a detective would be sent to bring the articles to headquarters. Again, they left without taking anything. At the direction of the police, however, she came back and put one or two padlocks on the door.
On August 25 Mrs. Seymore re-entered defendant's apartment. She was accompanied by a police detective, and in his presence reclaimed her allegedly stolen property. The detective told her to put it in a suitcase and bring it to headquarters. As she packed the suitcase he made a list of what she was taking. Thereafter, they went to police headquarters where, after the articles were photographed, she was allowed to take them home. They remained in her possession until the trial date. Scrotsky was arrested on the public street near the apartment building later in the same day. He was not at home during any of the described visits.
The State concedes the nonexistence of a search warrant. Moreover, no warrant for Scrotsky's apprehension was issued until August 27, two days after his arrest.
In Mapp v. Ohio, supra, the United States Supreme Court held that the federal rule which excludes in criminal trials evidence obtained by illegal search and seizure is applicable equally to the state courts. It was declared specifically that all evidence procured by searches and seizures in violation of the Fourth Amendment of the United States Constitution "is, by that same authority, inadmissible in a state court" (367 U.S., at p. 655, 81 S. Ct., at 1691). Proof of entry by police officers into a person's home without a proper search warrant, and the taking of articles to be used in support of a criminal charge against him, without more, makes out a prima facie case for suppression of the seized evidence.
The State contends that even though the officers had neither arrest warrant for Scrotsky nor warrant ...