Conford, Freund and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
Defendant appeals from a conviction of armed robbery. The basis of his appeal is that certain evidence used against him at trial, namely, a raincoat, cap and a gun found by the police in the apartment in which defendant was living, had been illegally obtained by reason of an unlawful search and seizure. Defendant, prior to trial, moved to suppress the evidence, but the trial court after a preliminary hearing ruled that defendant had consented to the search.
Defendant also contends that the trial court committed plain error in allowing Mrs. Ireland, the victim of the robbery, to testify at trial that within a week after the crime had been committed, she identified defendant in a police line-up, and that her identification was based in part on her recognizing the sound of defendant's voice after the police had him repeat in her presence the words spoken by the actual robber during the robbery.
Defendant King was suspected of having committed the robbery of Mrs. Ireland. Consequently on the day in question, at about one-thirty in the morning, a police officer and
a detective drove to the apartment building in which defendant was then living and parked their car in the rear of the premises. Defendant was occupying an apartment on the second floor of the building. The State's version of the search is as follows. The police officer rang the bell of defendant's apartment, and when defendant answered, he was told to get dressed that there were "a few questions that we would like to ask him down at City Hall." Defendant put some clothes on and went down to the police car and got in and was told by the detective that he was under arrest as a suspect in the robbery of Mrs. Ireland. Defendant denied that he had committed the robbery. The engine of the car was started, but before they drove off defendant was asked for permission to search the apartment and assented. The police officer testified that defendant said "all right," and thereafter did not object to the search. The detective testified that defendant said "yes" in answer to the inquiry. All three then got out of the car and went back to the apartment. Entry was had after defendant opened the door with his key. There was a Mrs. Ford also living in the apartment with defendant and she was also asked for permission to search which she gave.
The search of defendant's room disclosed the raincoat, cap, and gun later used at defendant's trial and identified by Mrs. Ireland as similar to these worn and used by the robber. Defendant and Mrs. Ford both testified that the police had simply told them that they were going to search the apartment and had not asked for or been given permission to search.
The general rule is that a proper search warrant is a prerequisite to a lawful search. Where the State seeks to justify a search without a warrant on the ground that the person involved consented to the search, it has the burden of proving that the consent was freely and intelligently given. Channel v. United States , 285 F.2d 217, 219 (9 Cir. 1960); cf. State v. Robinson , 74 N.J. Super. 305, 310 (Cty. Ct. 1962).
In Channel, supra , a narcotics suspect had been arrested by a narcotics officer and taken to bureau headquarters. While
there he allegedly consented to a search of his apartment. Two narcotics officers went to the apartment, searched it, and found incriminating evidence. The suspect remained in custody at bureau headquarters while the search was had. A motion to suppress the evidence seized in the apartment was denied on the ground that the suspect had consented to the search. On appeal, after the suspect's conviction, the Circuit Court of Appeals stated that the pertinent rule was as follows.
"A search and seizure may be made without a search warrant if the individual freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied. The Government has the burden of proving by clear and positive evidence that such consent was given. Judd v. United States, 89 U.S. App. D.C. 64, 190 F.2d 649, 650." (285 F.2d , at p. 219)
Applying the foregoing principle, the court reversed the conviction on the ground that the motion to suppress should have been granted. In so holding, the court stated that even though the trial court's finding that the suspect had assented to the search be accepted, the central issue was not credibility, but rather whether the evidence of consent, under the circumstances of his being under arrest in custody and during interrogation, warranted a finding that the consent had been freely and intelligently given. The court held that the ...