Sullivan, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
After trial by jury in the Hudson County Court, defendant was convicted of unlawful possession of narcotics in violation of R.S. 24:18-4. The narcotic, heroin in a glassine package, was found in the lower left hand lining of a coat allegedly belonging to defendant when he was searched at the precinct police headquarters to which he was taken after being placed under arrest. Defendant denies that the coat was his, but the jury's finding to the contrary is fully supported by the evidence.
On this appeal defendant argues that the evidence used against him was obtained by the police as a result of an unlawful search and seizure and that Judge Rosen, who heard defendant's pretrial motion to suppress that evidence but did not preside at the trial, erred in denying the motion. Defendant unsuccessfully attempted to renew the motion at the trial. The trial judge ruled, and properly so, that Judge Rosen's denial of the pretrial motion became the law of the case. State v. Fioravanti, 78 N.J. Super. 253 (App. Div. 1963). The alleged error in denying the pretrial motion is available to defendant as a ground of appeal on the appeal from his conviction. Ibid., at p. 256.
The only evidence offered at the hearing on the pretrial motion was the testimony of three police officers; defendant did not testify.
In an oral opinion containing detailed findings of facts, Judge Rosen ruled that the search, although made without a search warrant, was lawful since it was incident to and followed a valid arrest, citing United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 683 (1950). His findings of facts could reasonably have been reached on sufficient credible evidence present in the record; we may not disturb them. State v. Johnson, 42 N.J. 146, 162 (1964).
The testimony disclosed that on September 14, 1963, at about 2:50 A.M., Patrolmen Baxter and McCarthy of the Jersey City Police Department were in a patrol car in the vicinity of 14th and Erie Streets in downtown Jersey City, when they observed a 1956 Chevrolet automobile traveling south on Erie Street, a one-way northbound street. The police gave chase, overtook the Chevrolet as it attempted to turn around at Erie and 13th Streets, and ordered the vehicle to the curb. Six men were in the Chevrolet. Patrolman Baxter testified:
"[I] proceeded to check the driver-license and registration. I ordered the driver out of the vehicle and there were five other occupants in the vehicle and they were moving around so for safety's sake, being there was just myself there at the present time -- my partner was at the radio car yet -- I ordered all the men out."
When asked on cross-examination his reasons for ordering the men out of the car, he replied,
"Safety factors, sir. I had six men stopped. I'm by myself. I have my partner in the rear of me. I can't observe six men when they're in a confined place, so for safety practices so I don't get my fool head blown off, when I stop a vehicle loaded with six men, I request everybody to get out of the car so that I can watch them."
Baxter further testified that when he stopped the vehicle, he placed the driver under arrest for the motor vehicle violation but did not then arrest any of the other men.
As the men left the auto, Baxter saw an eye dropper on the right side of the back seat. Five years' experience as a police officer had taught Officer Baxter that "usually [such] an eye dropper is part of the paraphernalia used in the taking of narcotic drugs, mainly heroin." He called for additional help. ...