Conford, Collester and Labrecque. The opinion of the court was delivered by Collester, J.A.D.
Jose Cruz Reyes and Susan Di Costanzi were indicted for the crime of unlawful possession of narcotic drugs in violation of N.J.S.A. 24:18-4. A pretrial motion by defendant to suppress heroin seized by the police as evidence was denied. Thereafter following a trial by the court, sitting without a jury, Reyes was convicted and Susan Di Costanzi was acquitted.
Reyes appeals, alleging: (1) error in denial of the motion to suppress evidence; (2) error in denial of a motion for judgment of acquittal at the close of the case, and (3) the State failed to prove that defendant had possession of the narcotic drugs.
We deal first with the denial of defendant's motion to suppress evidence. The essential facts testified to by the State's witnesses at the hearing can be summarized as follows. Newark detectives, assigned to the Narcotics Squad, received information from a reliable informant that defendant was unlawfully selling narcotics from a first-floor apartment at 26 Garside Street, which defendant shared with Susan Di Costanzi, the mother of their illegitimate child. They knew that defendant was a narcotics user and had been previously convicted of unlawful possession of narcotics. Following receipt of the information the detectives conducted a surveillance of the apartment from the second-floor hallway of a building located across the street. On July 21 and 26, 1965 the detectives, using binoculars, observed known narcotic users walk up to the front window of the apartment, hand money to Reyes and receive in return a small package. One officer, Detective Gockeler, described the packages as
glassine envelopes (commonly used as containers of heroin in the illicit drug traffic).
Based on an affidavit setting forth the informant's information and the officers' observations, a search warrant was issued on July 27. On August 4, armed with the warrant, the detectives took up surveillance of the apartment from a nearby parking lot. The informer was sent to the apartment and returned to report that there was heroin on the premises. At about 1:55 P.M. defendant left the apartment. The detectives stopped him on the street and arrested him as a disorderly person on a charge that he had failed to notify the police chief within 24 hours of his change of address from that shown on his narcotics registration card. N.J.S. 2A:169A-6. They informed him they had a search warrant to search the apartment and exhibited a copy thereof. They took him to the apartment which defendant opened for them with his key. A search of the kitchen disclosed two packages containing 17 glassine envelopes of heroin. The officers then told defendant he was under arrest for unlawful possession of narcotics. Before leaving the apartment for police headquarters defendant was permitted to put on a clean shirt and underwear which he took from a dresser drawer.
Defendant denied selling narcotics as charged by the police. He said he lived with his sister at 213 Lake Street and only went to 26 Garside Street occasionally to visit his child. He testified that on the morning of August 4 Miss DiCostanzi had given him a key so that he could open the door for a plumber. He said that after leaving a barber shop, one block from the apartment, he was stopped by the police and forced to enter their automobile. He was not told that he was under arrest. He was compelled to empty his pockets and the detectives took a key chain containing four keys, one of which was the key to the DiCostanzi apartment. He said he was driven to the apartment where Detective Gockeler opened the door with the key, and he was then taken inside handcuffed and was beaten by the police. He denied that he changed any clothing in the apartment as testified to by the
detectives. His sister, Hilda De Lima, testified that defendant lived with her, but admitted that she had been in Puerto Rico for three weeks when she learned that defendant had been arrested.
The court denied the motion to suppress, holding: (1) the arrest of defendant as a disorderly person for violation of N.J.S. 2A:169A-6 was a valid arrest; (2) the search warrant was properly issued, having been based on probable cause to believe a criminal offense had been committed, and (3) the officers had probable cause to arrest defendant for the crime of unlawful possession of narcotics.
Defendant first contends that his arrest on the street without a warrant for violation of N.J.S. 2A:169A-6 (failure of a convicted narcotics offender to notify the chief of police within 24 hours following a change of address) was invalid, citing State v. Orr, 93 N.J. Super. 140 (App. Div. 1966), and since the arrest was illegal, the police had no right to take the apartment key from his possession or to compel him to go with them to the apartment. He further contends that the search of the apartment which resulted in the discovery of the heroin was invalid and the heroin should have been suppressed as evidence because his arrest for possession of narcotics was not made until after the heroin was found -- that a search undertaken to uncover evidence in order to arrest is not made lawful because the desired evidence is found. State v. Doyle, 42 N.J. 334, 342 (1964).
In State v. Orr, supra, this court affirmed an order suppressing evidence secured as the result of a search and seizure made incidental to an arrest because the arrest for violation of N.J.S. 2A:169A-6 was invalid, having been made without a warrant. However, in that case the sole reason ...