Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
[97 NJSuper Page 567] Upon leave granted, the State appeals from an order granting defendant's motion to suppress evidence
(lottery slips) found when defendant's person was searched without a warrant.
The arrest and the search incidental thereto were made by Lieutenant Dougherty and Investigator Roberts of the prosecutor's office in the public hallway of 291 Morris Avenue, Newark, shortly after 3 P.M. on December 3, 1965.
The only testimony heard and considered by the court before granting the motion was that of Dougherty and Roberts. Defendant offered no evidence. Instead, over the State's objection to the "bifurcation" of the motion to suppress, the court permitted defendant to move for a ruling in his favor after the State's witnesses had testified and to reserve the right to present evidence if the motion was denied.
The procedure adopted by the court was improper. It is not authorized by R.R. 3:2A-6, the rule governing motions to suppress evidence allegedly seized as the result of an unlawful search. The rule, which applies whether the search is with or without a warrant, provides in pertinent part that:
"A brief stating the facts and the arguments in support of the motion shall be submitted with the notice of motion. If material facts are disputed, testimony thereon shall be taken in open court. * * * The motion shall be determined before trial."
The taking of testimony on the motion is not a trial in the conventional sense so as to authorize interlocutory motions for dismissal or judgment. The rule contemplates that the motion to suppress be heard and decided by the court on the basis of everything each side has to offer, including testimony if material facts are disputed. This means not only the testimony for the State but also such evidence as defendant may wish to offer.
The procedure adopted by the trial court makes it impossible for us to finally resolve the motion to suppress even though we have concluded, for the reasons hereinafter set forth, that on the present record the motion should not have been granted. We are compelled to remand the matter to the trial court to enable defendant to offer evidence as to
such of the material facts as he may dispute. The trial court will then make new findings of fact and conclusions of law on the basis of all the evidence before it.
The present record reveals the following:
291 Morris Avenue and 292 Morris Avenue are multiple-family houses on opposite sides of the street adjacent to 14th Avenue. Roberts had conducted a surveillance of the area for two days following receipt of a "tip" that an apartment in 292 was being used as a lottery drop. The surveillance confirmed the accuracy of the "tip." It disclosed among other things, the presence in the immediate area of a known "lottery controller," a "lookout" at the corner who on occasion was handed a quantity of slips and papers, and a steady traffic into 292 between 2 P.M. and 4 P.M. of a number of men and women who left the building within but a few minutes after entering. To a lesser degree there was similar traffic into 291, with some of the suspected runners leaving 291 to enter 292 and others entering 291 after leaving 292. Dougherty had secreted ...