On motion to suppress evidence.
This is a timely motion to suppress evidence, pursuant to R.R. 3:2 A -6. The facts as elicited in testimony are as follows:
On March 14, 1967 two detectives of the Orange Police Department were informed by telephone by a sergeant that a Mr. Williams had phoned and reported that a man had offered to sell him a "hot" Royal electric typewriter. Williams gave the license number of a car involved, and the detectives
were told by the sergeant that the license number was in the name of Wayne Lenhart of Orange. The detectives went to Lenhart's address and were told by Lenhart that a Thomas Hand -- whom they knew to be a registered narcotic addict -- had the typewriter. Lenhart went with the detectives to show them where Hand lived. Detective Paglucci testified that he did not apply for a search warrant because he feared Mrs. Lenhart would have phoned Hand and the typewriter would have been removed.
Detective Paglucci testified that he, his partner Detective Butler and Lenhart arrived at 310 Lincoln Avenue, Orange, at about noon. They rang the downstairs bell and were admitted by the caretaker, who took them to Hand's apartment on the third floor. Detective Paglucci said he knocked on the door and a male voice asked, "Who's there?" A man opened the door about three-fourths of the way or about two feet. "Police," Paglucci said he answered. He testified that he had his foot nearly in the doorway as he showed the man -- whom he knew to be Thomas Hand -- his badge. At this point, while still in the hallway, Detective Paglucci said he saw a typewriter on the floor in a closet in the apartment. The closet was about six feet away from him and had no doors. "I walked in," Detective Paglucci said, and asked Hand where he got the typewriter.*fn1 Thomas Hand was arrested and charged with receiving stolen property. He and the typewriter were taken to Orange Police Headquarters, where identification of the typewriter as stolen was completed with the aid of a representative of the manufacturer.
Also in Thomas Hand's apartment, when the detectives entered, was defendant Joyce Hand, his wife, whom the police also knew was a narcotics addict. Mrs. Hand was told by the
detectives that she would have to come with them, that she would be a material witness. However, about 25 minutes after getting to the station house, she was examined by a doctor. Detective Paglucci said he had radioed ahead and asked that doctor be summoned. The doctor told her she did not have to consent to the examination. Even though she said she would rather have her own doctor examine her (she thought she was pregnant), the police doctor proceeded anyway. As a result of his findings Joyce Hand was charged that day with being under the influence of narcotics, in violation of N.J.S. 2 A:170-8. She was taken before a magistrate the next day.
Defendant Joyce Hand brings this motion to suppress evidence, contending that the examination by the doctor was a search, her arrest as a material witness was invalid and improper, and the search was invalid since it followed an illegal arrest.
Under the circumstances, it is conceivable that defendant might be a material witness within the ambit of N.J.S. 2 A:162-2. Thomas Hand was arrested for a "crime punishable by death or imprisonment in the state prison" and Joyce Hand was a "person who can give testimony against any person so accused of any such crime."
The statute places with a judge or magistrate the decision as to whether the testimony a witness may give is sufficiently material to warrant binding the witness "by recognizance with sufficient surety." The fact that Mrs. Hand was not taken before the nearest available magistrate until some 26 hours after her arrest, contrary to the direction of R.R. 3:2-3(a), does not necessarily make the arrest illegal or evidence obtained after the arrest inadmissible. State v. Hodgson, 44 N.J. 151, 157 (1965); State v. Jackson, 43 N.J. 148, 167-168 (1964); State v. LaPierre, 39 N.J. 156, 171 (1963).
Defendant in her brief points to the second paragraph of N.J.S. 2 A:162-3, which deals with the detention of witnesses. It provides in part:
"Any person committed or detained as a witness shall not be kept in the same apartment with or be provided with the same fare as persons charged with or convicted of crime * * *"
Without doubt, defendant was detained in the same facilities employed for persons accused of crimes. However, 25 minutes after she arrived at the Orange police station -- or shortly thereafter when the doctor reported his findings -- defendant was a person accused of a crime.
Defendant also points to N.J.S. 2 A:84A-17(2) (Rule 23 of New Jersey Rules of Evidence): "The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse and the accused shall both consent, * * *."
Neither at the time Joyce Hand was taken into custody nor at any time thereafter did Mr. or Mrs. Hand consent to Joyce testifying against Mr. Hand. It should be noted that the consent of both is required before the spouse of the accused can testify. Defendant notes that N.J.S. 2 A:162-2 only provides for the detention of a "person who can give testimony."
However, Rule 23 appears to deal with the admissibility of testimony at trial rather than the capacity of the spouse to testify. Mrs. Hand could testify against her husband if both she and her husband consented. Unlikely as it may be that both would consent to waive the Rule 23 privilege, it does not appear to be the arresting officer's duty to attempt to obtain such waivers. Thus the failure of the arresting officer to determine whether Mrs. Hand would or could be a witness does not in itself invalidate her arrest as a material witness.
Defendant suggests that although the arresting officer told Mrs. Hand that she was to be a material witness, the officer never really intended to arrest her for that purpose, but instead perpetrated a ruse to enable a doctor to examine Mrs. Hand. This brings us to the area that greatly concerned this court. Extensive research has revealed no case
law on the authority of a police officer to arrest a suspected material ...