Conford, Foley and Leonard. The opinion of the court was delivered by Leonard, J.A.D.
The State by leave of court appeals from an order of the County Court ordering that a "Motion to Suppress Evidence be * * * granted." The evidence consisted of a quantity of heroin and associated narcotics paraphernalia intended to be used by the State in the trial of defendants upon a joint indictment for possession of a narcotic drug. R.S. 24:18-4.
At the hearing on defendants' motion, only two witnesses testified. They were Hugh F. McNulty, Jr. and David McCummings, both members of the Newark Police Department narcotic squad. Their testimony established the following facts.
On January 27, 1966, at 10 A.M., while these officers were investigating a possible narcotics violation in the building at 22-24 West Kenney Street, Newark, they saw defendant Charles Orr at the doorway of apartment D-9 located on the fourth floor of these premises. During the course of a conversation then had with McNulty, Orr stated that "he had been living in the apartment" and that "he was going down to change his address right then."
Thereupon the detectives returned to police headquarters and checked their narcotics files, from which they ascertained that Orr had not changed his address from his last-known residence, 581 Hunterdon Street, Newark. Knowing Orr to
have been involved with narcotics and to be a person required to register a change of address within 24 hours under N.J.S. 2A:169A-6, they returned to his apartment at or about 12:40 P.M., specifically "to affect the arrest of Orr for failure to change address" (sic). However, the officers did not secure an arrest warrant for Orr, even though their office was in the same building as the municipal court which was in session at the time. They had no warrant for the arrest of Williams, whose presence was unanticipated, nor did they have any search warrant for the apartment.
On this second visit McNulty proceeded to Orr's apartment and McCummings remained downstairs in the vicinity of an alley which was overlooked by the windows of that apartment. This was done as a part of a preconceived "plan" on the part of the officers so that McCummings could "ascertain if anything was thrown out of the window."
McNulty waited a couple of minutes and then knocked on the apartment door and announced "Its McNulty. Open the door." Orr knew who McNulty was. Thereupon, "[T]here was a lot of commotion and running around and then the door was opened."
Upon entering the apartment McNulty found only Orr and Williams therein and he "made" them sit upon a bed. In open view upon a table the officer saw an eye dropper and a bottle cap, and on the floor was a plastic bag containing two hypodermic needles and other paraphernalia. McNulty further observed that a window overlooking the alley was open. However, when he entered the apartment neither defendant was near this window and he did not see either of them throw anything out of it. At or about this time McCummings came into the apartment and related what he had observed (hereinafter discussed), left and returned in a few moments with a package.
McNulty had been in the building "a couple of minutes" when McCummings, who, as above noted, was stationed by the alley below, observed a white object "thrown" from the window of Orr's apartment and which landed in the alley. The
officer did not retrieve the package at that time because the entrance gate to the alley was locked, but he quickly went to Orr's apartment and informed McNulty of his observation. He then returned downstairs, entered the alley from the apartment building, and secured the "package," which was a white napkin containing glassine envelopes in which was contained the heroin herein involved. McCummings then returned to the ...