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State v. Clemente

Decided: December 31, 1969.

THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
PAUL CLEMENTE, DEFENDANT-RESPONDENT



Goldmann, Lewis and Matthews. The opinion of the court was delivered by Matthews, J.A.D. Goldmann, P.J.A.D. (concurring).

Matthews

This is an appeal, pursuant to leave granted, from an order of the Hudson County Court suppressing certain evidence (91 decks of heroin) seized, pursuant to a search warrant, from the automobile and home of the defendant.

The search was made under a warrant issued by a judge of the Jersey City Municipal Court upon the affidavit*fn1 of detective

Potter of the Jersey City Police Department. The affidavit set forth detailed observations that were made by Potter, and other members of the Jersey City Police Narcotics Squad, during a ten-day surveillance, as well as information that had been received from a "reliable source." The affidavit contained no dates as to when the surveillance had been conducted, nor did it contain the date when the information from the supposedly reliable source had been received by the police. The affidavit did aver, in its opening paragraph, that narcotics are being stored in both the premises and the motor vehicle described particularly therein.

At the hearing on the motion to suppress, the State produced detective Potter, who had procured the warrant, and who proceeded to testify as to the circumstances surrounding

his application for it. The pertinent testimony was as follows:

Q. On that day when you made that application and submitted that affidavit, was there anything else submitted to the magistrate?

A. Just the usual, he asked how long the surveillance had been on.

Q. Did you give him any testimony under oath?

A. Yes, sir.

Q. Were you sworn in?

A. Yes.

Q. By whom were you sworn in?

A. Judge Lemken.

Q. Did he ask you questions?

A. Yes.

Q. And did you give the answers?

A. Yes.

Q. What specifically did he ask you about the ...


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