This is a motion by defendant Monroe Robinson to suppress certain evidence taken from a locker and an automobile.
The Essex County grand jury returned a three-count indictment charging defendant with larceny of silver of the value of $49,705.50 (first count), $2,348.70 (second count), and $1,997.93 (third count). The motion relates to evidence taken from a locker at the Engelhard Industries plant on New Jersey Railroad Avenue, Newark, New Jersey, and evidence taken from a 1963 Cadillac owned by defendant and parked in a public parking lot at a gas station. The evidence sought to be suppressed consists of pieces of silver, 8 in the locker at the plant and 11 in defendant's car. No search warrant had been issued or obtained.
From the testimony I find the essential facts to be as follows:
Defendant was for many years employed by American Platinum and Silver Division, a subsidiary of Engelhard Industries, in Newark, New Jersey. In November 1963 he was employed in the melting room.
There were three shifts operating in the melting room -- respectively starting at 6 A.M., 7 A.M., and 8 A.M. The one starting at 8 A.M. ended at 4:30 P.M. At the close of the working day there were pieces of scrap, and on top of these would be placed pieces of silver some 5 or 6 inches long, 3 1/2 inches wide, and about 1 1/2 inches thick. In addition to defendant there was a helper in the melting room with him.
On one occasion it came to the attention of one of the employees that some of these cast-off pieces were missing, and he reported this to his immediate superior, Mr. Nordstrom. After this an employee for three days (November 4, 5, and 6, 1963) placed pieces of silver on the top of the scrap. When he left at 4:30 P.M. on those days the pieces were there. On November 5 they were there at 6 A.M. but missing at 8 A.M.; on November 6 they were there at 6 A.M. but gone at 7 A.M. He reported this to Nordstrom. Nordstrom, in turn, told him to discuss this with Mr. Crego, the plant manager.
Crego had been plant superintendent for some ten years prior to the time in question. From his testimony it appears there were lockers at the plant assigned to the several employees. Their purpose was that employees could keep their working and street clothes there because all melters change their clothes. Each employee received a key, and the company kept a master key. While there was no written agreement with an employee when hired as to who was to have access to the locker, it was the superintendent's recollection that the man was told he would be given a locker and a key, however, he was not sure whether the employee was told that the company also had a key. He was firm in his statement that the union knew the company had a key to the lockers.
The plant superintendent related the information he had received from the other employees to Mr. Elmer Thomas, attorney for Engelhard Industries. Thomas authorized a Mr. James J. Cotter to make an investigation. Cotter is a licensed private detective who in November 1963 had been with the Engelhard Industries for some eight years. On November 6 Cotter went to the floor where the lockers were located and unlocked all of them except defendant's. He said he was looking for silver, as described to him, and saw none. He already knew that defendant was under suspicion, having been told so by Thomas.
On November 7, between 5 and 6 A.M., Cotter was on the roof adjoining the melting building with a pair of binoculars. It was raining hard, and he observed the melting room through the binoculars. There were windows, but his observations were not made through them. He had to make his observations through a vent slowly turning in the wind. He could see one man working. He didn't know his name at the time, but subsequently identified him as defendant. The distance from the roof to the building was some 40 feet. Through the binoculars he saw defendant light a big hose which he later found out started the furnaces. He then saw defendant go outside the furnace room door for a few minutes and come back. He had something shiny in his hand and put this object
in the top of his overalls. It was about five inches long, three or four inches wide; it looked like a piece of silver he had seen on other occasions. He knew that this was what he was looking for. Another man then came into the furnace room, and at that point Cotter left the roof and went to the plant.
Cotter then asked someone -- not defendant -- for a pass key to defendant's locker. In the company of Mr. Forsythe, a uniformed guard, he went to the locker floor. Defendant was not there at the time. Thereafter they observed defendant go to his own locker and open it. Defendant apparently noticed Cotter and Forsythe; he twice took his wallet out, locked his locker and left. Cotter did not observe anything in the locker at the time. He then opened the locker with the master key and found three pieces of silver, 5 inches long and 3 1/2 inches wide, in the pockets of the overalls. He saw five more pieces on the bottom of the locker. He then locked the locker, and he and Forsythe went to see Thomas. Cotter did not carry a gun during this interval.
Thomas learned from Cotter what had been found in the locker. He talked to defendant about it, with the result that defendant, Thomas and Crego went to the locker where Forsythe and Cotter were. When Cotter asked defendant to open the locker he said that he did not have a key and had not had one for some time -- that he opened it without a key. But when defendant tried to open it by pulling the door, it did not open; and Cotter asked him, "If I get you a key, will you open the locker?" Defendant said something to the effect that he would.
Cotter then sent Forsythe for the master key. When he came back, Cotter handed the key to defendant, who opened his locker. Cotter told defendant to take everything out of the locker and put it on the table nearby, which he did. When defendant found the pieces of silver, he looked astonished and said he couldn't understand who had put them in his locker.
Defendant claims that Forsythe was in uniform all the time; that Forsythe told him to unlock the locker; that he
told Forsythe he had no key and had lost it; that Forsythe went to get the extra key; that when the defendant wouldn't unlock it, Forsythe said to him, "If you don't unlock it, we will go to headquarters and they will make you unlock it." Forsythe then gave him the key and he unlocked the locker.
When Thomas had questioned defendant, he also spoke to him about his car. Defendant denied that there was any silver in the car but said, according to Thomas, "You look at it if you want to." Both Cotter and Thomas say that when they all got to the gas station where the car was parked, defendant got the keys from an attendant, moved the car from a post, unlocked it, and together with Cotter pulled the silver pieces out. In the back of the car there was also a weighing machine which defendant said he used to weigh the silver so that when he sold it to somebody he wouldn't be "gypped." There were 11 pieces of silver in the back of the car. While he was observing what was in the back of the car, Cotter saw a locked green box -- a tool box. Defendant took one of a bunch of keys and opened it up. In it was a brown paper bag containing some money. Defendant told Cotter that the money came from the silver he had sold. Cotter asked him if it was Engelhard's money, and defendant said yes. He heard the defendant say that the currency was from the sale of the stolen silver.
It was company attorney Thomas' opinion that everything defendant said and did was voluntary. He testified that defendant had said ...