For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
[47 NJ Page 274] Defendant was indicted by the Grand Jury of Essex County for the possession of heroin, N.J.S.A. 24:18-4. Prior to trial, he moved before the Essex County Court for the suppression of certain evidence relating to the indictment. After formal hearing, the court granted defendant's motion and the State sought and was granted leave to appeal by the Appellate Division, which at the same
time, remanded the cause for the purpose of taking further testimony. From an adverse ruling after this second hearing, the State again sought and again was granted leave to appeal and we certified the cause prior to hearing in the Appellate Division.
From the record of the two hearings and from the findings of fact and conclusions of law filed by the county court after each hearing, it appears the search and seizure occurred in the following manner. On October 15, 1964 one Ronald Miller, a brother and co-tenant with defendant at an apartment located at 112 Broad Street, Newark, called the Newark Police Headquarters and claimed he had information concerning the whereabouts of one David "Skip" Bynum who was being sought in connection with a Newark robbery homicide involving the use of a gun and for whom there was an outstanding arrest warrant. Police Headquarters dispatched Detectives Carr and Pepe to the corner of Third Avenue and Broad Street to meet with the informant, Ronald Miller.
Upon their arrival, Ronald Miller told the detectives that Bynum was with his brother, the defendant in this case, in the Miller brothers' apartment. Ronald stated that he had just been released from the penitentiary and that as he knew Bynum was a fugitive and had his "piece" (gun) with him, he wanted Bynum out of the apartment so that he (Ronald) would not get involved and be returned to jail. Although he had never been used as an informer before, Ronald Miller was known to Detective Carr who was aware of the fact that Ronald had recently been released. The detectives knew of the outstanding arrest warrant for Bynum.
They proceeded immediately to the Miller apartment which was located in the basement of the building. Entering the building by a door which led into a common hallway, the officers drew their guns and knocked at the Miller apartment door. Upon inquiry as to their identity, Detective Carr answered by use of a fictitious name. As the defendant opened the door, the officers, with drawn guns, rushed past into the
apartment, and saw Bynum sitting at a table with a deck of cards. The officers arrested him immediately and, after handcuffing him, searched his person, as well as the person of the defendant for Bynum's gun but it was not found. A search of the premises followed. As Bynum was being handcuffed and searched, the defendant, Miller, was told to sit down. When he became excited, the officers tied his hands with a rope.
Detective Carr described the apartment in his testimony as a small single room area with the various portions of kitchen, bedroom and living room established by the positioning of particular furniture used in each. The front door opened into the living room which in turn opened into the kitchen with the bedroom to the rear; the total depth of the apartment being approximately 30 feet. The living area was 12 to 15 feet narrowing at the kitchen to approximately 8 feet and widening again to 12 to 15 feet in the bedroom area. Adjoining the bedroom area was a small bath.
The defendant disputes this description in respect to whether the rooms are portioned by the positioning of furniture. He states that there are walls, ceiling to floor. Even assuming the defendant is correct that the three rooms are portioned by walls, ceiling to floor, the trial court found and defendant admits that the kitchen area is visible to one standing in the living room and the bedroom area is visible to one standing in the kitchen. Thus, as the officers entered through the living room door, Bynum was readily visible while seated at the kitchen table.
Bynum was without his shoes and shirt. The officers, not finding the gun on the person of either the defendant or Bynum, proceeded to search the premises. Due to the fact that Bynum was not fully dressed and also to the fact that the informer, Ronald Miller, had indicated that Bynum was wearing a jacket when he arrived at the Miller apartment, Detective Carr initiated his search with a closet in the bedroom area, some 8 to 10 feet to the left rear of the table at which Bynum was sitting.
In the closet, which had no door but which was covered by a curtain, Detective Carr found a brown paper bag on the floor containing a hypodermic needle and other paraphernalia which usually are used by a narcotics user. Attached to the bag by a rubber band were 15 small glassine packets of heroin. Detective Carr testified that this heroin and the other narcotic paraphernalia were discovered some 10 to 15 minutes after the officers entered defendant's apartment.
A bed, located some 6 feet behind the chair where Bynum was sitting, was next searched. The officers testified that it was disheveled and upon it were lying various articles of men's clothing. As Detective Carr pulled back the covers, six more glassine envelopes of heroin fell to the floor. Bynum's gun was never found, although the remaining portions of the premises were subjected to a 20-minute unavailing search. Bynum and defendant were taken ...