Motion to dismiss indictment.
This is a pretrial motion by defendant Kenneth D. Rountree to dismiss an indictment charging him with having committed five violations of the law pertaining to the possession and sale of narcotics (N.J.S.A. 24:18-4 and N.J.S.A. 24:18-47). More specifically, he is accused of unlawful possession and sale of heroin on June 25, 1968, aiding and abetting one William Towns in making a sale of heroin on August 13, 1968, and unlawful possession and sale of heroin on August 28, 1968. However, his arrest did not take place until October 31, 1968, some four months after the first alleged occurrence and approximately two months after the last.
Defendant contends that he was denied due process of law under the Fourteenth Amendment to the Constitution of the United States because the time lapse between the dates of the alleged offenses and his subsequent arrest constituted delay infringing upon his ability to defend himself. It is further urged that the delay in swearing out a complaint against him denied to him the effective assistance of counsel under the Sixth Amendment to the Federal Constitution.
Defendant presents himself as one who is almost completely frustrated in the preparation of a defense to the charges by reason of his utter inability to recall the events of any of the days in question. According to his direct testimony as I understand it, defendant is unable to recall whether he possessed heroin on June 25, 1968 or August 28, 1968, whether he sold heroin on either or both of these dates, or whether he aided or abetted William Towns in making a sale of heroin on August 13, 1968. He is likewise unable to recall whether on the days in question he was present at the several locations where the offenses are said to have occurred. The direct and
efficient cause of this failure of recollection is said to be the time lag between the dates of the offenses and the date on which the charges were filed, a period during which defendant had no knowledge or even an intimation that he was going to be accused.
Defendant is 21 years old. He was born and raised in New Brunswick. He completed the ninth grade in school, dropping out upon reaching his 16th birthday. His one steady job was with the Ford Motor Company from December 1966 through November 1967. Since then his employment has been sporadic, somewhat menial in nature and, in terms of total time, amounts to but a couple of months. He married on July 7, 1967.
While defendant displayed some reluctance to admit addiction, he stated that he was a heroin user before and during June and August of 1968. He said that he was "shooting up" from five to seven times each week. He conceded the possibility of his being in all but one of the locations at or near which the offenses are said to have occurred, either because of their proximity to the home of his parents whom he customarily visited on the average of twice each week or because some of the places were at or near bars or pool halls where he frequently socialized.
Defendant described his efforts to reconstruct his activities following his October 31 arrest. He said that a canvass of his wife, his parents, his friends, his co-defendants, and some 20 to 30 other people has proved unavailing. The universal problem seems to be that too much time had elapsed for anyone to remember any particulars relating to the events of the days in question.
Cross-examination, although extensive, did little to refresh defendant's recollection. Neither can it fairly be said that it demonstrated that defendant's failure of recollection is feigned. It did, however, tend to illustrate in greater detail the unstructured nature of defendant's existence. For some time he has been more or less aimlessly drifting along through life without discernable purpose or goal. Although styling
himself as a devoted husband and homebody as well as a dutiful son, it is apparent that his frequent habit has been to spend considerable time in the downtown area of New Brunswick visiting various bars and pool halls at or near which some of the offenses charged are said to have occurred. He conceded that on various dates he may have seen or been in contact with certain other alleged narcotics offenders in such places as Louie's Bar, the Marine Bar, the Golden Nugget and the New Brunswick Recreation.
Defendant's ability to recall many other past events was amply demonstrated. However, these were the sort of things a person would ordinarily be likely to remember without difficulty. For example, his recollections of family birthdays, holidays, and the like were clear. He also remembered well the occasion of a prior arrest which occurred on his wife's birthday From this, however, it does not follow that he would necessarily be able to recall the events of June 25, August 13 and August 28, when he was arrested on October 31.
It is my conclusion, based upon what defendant had to say, how he said it and his demeanor generally, that he does not, in fact, presently recall the events of the days in question. Plainly, he does not deny that at various times during the general period he actually possessed heroin, for he admits being an almost daily user. Neither does he actually deny that he ever sold heroin or that he may have aided or abetted Towns in a sale. His problem is that absent recollection he cannot be certain of his guilt or innocence of the specific acts charged. Absent recollection he does not know whether he may have an alibi or other defense as to these particular charges. Absent recollection he cannot properly assist his attorney in the effective preparation of his case. All of this is alleged to be the product of what is claimed to be the unwarranted delay on the part of the police in swearing out the complaints against him.
The charges against this defendant stem from an undercover investigation conducted in the New Brunswick area by the New Jersey State Police which ran from May or June
1968, through October 31, 1968. It appears that Investigator Victor Irizarry, operating under the supervision of Detective Frank La Citra, undertook to infiltrate the world of narcotics users and sellers by "making the scene" on a daily basis with persons suspected of being involved in this type of activity. His technique was to pose as a "junkie" himself, gain the confidence of other "junkies," find out who was supplying narcotics locally, make "buys" from the sellers or "pushers," and to assemble as much evidence as possible against as many offenders as possible to the end that a telling blow might be delivered to the whole local narcotics set-up in one fell swoop. The fell swoop in the case eventuated during the early morning hours of October 31 when approximately 50 suspects were rounded up by state, county and local police acting in concert.
A tabulation of the subsequent indictments reveals that 174 charges were made against 47 individuals. The pattern of the undercover agent's activity is reflected somewhat by an analysis of the dates of the alleged offenses. It appears that 10 are said to have occurred in June, 32 in July, 54 in August, 47 in September, and 31 in October. Further insight is obtained by examining the pattern of repetitive counts. Analysis reveals none in June, 12 in July, 23 in August, 29 in September, and 23 in October.
Detective La Citra testified for the State. He has been a member of the State Police for 17 years. He has specialized in narcotics investigations since 1961, originally as an undercover agent. He has been associated with literally thousands of investigations. During 1968 he was involved in over 800 narcotics matters. He explained that the nature of the traffic in narcotics is such that the method employed in this investigation is necessary to the effective detection and prosecution of such offenses. The delay in signing complaints and making arrests is not the result of any desire on the part of the police to violate any defendant's constitutional rights. The reason is that once a complaint is signed the agent's cover is "blown," that is, his identity becomes known
to other users and sellers, thereby terminating his effectiveness and thus bringing a particular investigation to an abrupt conclusion. Unless disclosure is withheld until the pattern and scope of the narcotics activity in a given area is fully probed, that investigation comes to an untimely close. Moreover, in a practical sense, there is a substantial waste because of the time and effort necessarily expended by an agent in achieving acceptance by traffickers in narcotics.
According to Detective La Citra the length of a given undercover narcotics investigation depends upon a number of circumstances, but in his experience investigations usually last from four months to about one year. Among the factors to be considered in deciding when to terminate he cited the evaluation of how things were going in the field, the volume of the flow of narcotics, the number of people active in the illegal activity in the given area, whether new contracts were being made, whether it appeared that prospects were good for reaching sources of supply, whether the flow of information was good and, in short, on the basis of the total picture as it appeared to exist to the officer in charge. He conceded the difficulty in determining empirically when the end had been reached, but acknowledged that a particular investigation reached its peak when the "buys" became more and more repetitive from the same individuals and the number of new offenders being contacted dropped off. He expressed the view, however, that some repeat buys from the same individual were desirable in that this demonstrated that a given defendant was a "pusher." Needless to say, the investigation is aimed more at the "pushers" than the addicts. He expressed his opinion that the appropriate termination point was reached for this investigation in October.
It appears that our own appellate courts have not had occasion to deal with this precise problem. However, in Washington, D.C., a series of reported cases have emerged as a result of undercover police activity in the sphere of narcotics detection. It is upon the basis of these ...