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State v. Allen

Decided: December 7, 1970.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL JOSEPH ALLEN, DEFENDANT-APPELLANT



Goldmann, Leonard and Mountain. The opinion of the court was delivered by Goldmann, P.J.A.D.

Goldmann

[113 NJSuper Page 246] Defendant appeals, pursuant to leave granted, from an order denying his motion, made before

trial, to suppress certain evidence seized in a warrantless search.

On June 7, 1968 police entered a dwelling house in New Brunswick and arrested five men who were present for violations of the narcotics laws. On learning that defendant was the lessee of the premises, the police arrested him on the following Monday, June 10, and charged him with violating N.J.S.A. 24:18-4, possession of narcotic drugs (marijuana and hashish), as well as a local ordinance, not involved in this case, prohibiting the use of a house by disorderly persons for the illegal use of drugs. The statutory violation resulted in an indictment; the ordinance violation is pending disposition of that indictment.

Defendant pleaded not guilty to the indictment and moved to suppress the evidence seized by the police. The denial of that motion brought about this appeal.

At the hearing on the motion New Brunswick Detective-Sergeant James, an officer especially assigned to narcotics investigation, testified that he was called back to duty by police headquarters at about 10 P.M. on June 7, 1968 to investigate "activity" at 1 Neilson Street, New Brunswick. He was advised that there was what appeared to be a party in process at that place. After asking for the assistance of another officer, he and Officer Thomas went to the area to "surveille" the house. He said he heard music coming from the house when he was a block away. He and Thomas "set up" some 15' from the building and observed several people arrive, stay a short while, and then leave. He recognized one person whom he had once arrested in a narcotics raid. Deciding to enter, James knocked on the front door several times, "hit the door a little harder and it opened" -- the door was ajar, he said. He called, "Is anybody here," two or three times and, receiving no answer, he and Thomas entered.

James testified that they walked into the living room and, finding no one there, went into another room where they saw a piece of aluminum foil containing a brown cake-like substance which looked like hashish. The officers continued to

look around the first floor, but found no one. Since the music was coming from the second floor, they called upstairs and, receiving no answer, decided to check. There they found five men (defendant was not present) lying on the floor under the influence of drugs. The officers observed marijuana cigarette butts ("roaches") in the ashtrays and a greenish vegetable matter in a jar on the floor, which later was found to be marijuana. The arrests followed. On learning that defendant was the one to whom the apartment had been rented, they filed a complaint against him and arrested him three days later.

On cross-examination James said that the complaint he received on the night in question was "information that there was possibly a pot party going on" at 1 Neilson Street. Asked if this could be characterized as a noise complaint, as he had testified on direct examination, his answer was, "Well, the complaint was noise also but the other information that I received is the reason that they called me." He admitted that he made no attempt to obtain a search warrant. Asked if he had probable cause to believe that there might be narcotics in the house which would entitle him to obtain a search warrant, his nonresponsive answer was that they had had the premises under surveillance some five or six months previously. James conceded that ordinarily, on a noise complaint, the normal police procedure was to send a radio car to the address and advise the persons to tone the noise down. In this instance, however, James and Thomas had the house under surveillance for 20 to 30 minutes. None of the several persons who left the place was arrested. Although it was decided to radio for help, he did not ask the officers to obtain a search warrant.

In his letter opinion the motion judge dismissed defendant's argument that there were both grounds and time to obtain a search warrant, stating: "It is quite apparent that the police had nothing to go on excepting mere suspicion. Therefore, whether they had enough time is of no consequence." The question, he said, was whether the police were

justified in entering under the circumstances. He noted that their primary mission was to abate the noise problem, notwithstanding their suspicion as to narcotics and the presence of Detective-Sergeant James. Thus, he found that since the officers had been unable to get a response to their knocking and the door was ajar, they had a right to enter. Further, since the hashish was in plain view as they went into the second room of the first floor, the officers then had a right to go ...


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