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State v. Dennis

Decided: February 3, 1971.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WARREN E. DENNIS, DEFENDANT-APPELLANT



Conford, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.

Carton

[113 NJSuper Page 293] Defendant appeals from a conviction for possession of heroin. The principal ground he urges

for reversal is that the 22 glassine envelopes of heroin seized from his person should have been suppressed as the product of an illegal search.

Officer Daniano testified on the motion to suppress that he and Officer Fitzsimmons went to the Tichenor Street area of Newark on July 12, 1969 to locate one Arlene Cruz, sought as a material witness in connection with a homicide. (At the trial Officer Fitzsimmons added that she had also been identified as a suspect in that killing). The officers took Miss Cruz to headquarters between 9:00 and 9:30 that evening. An hour later they returned to the same area on the lookout for another suspect in the same killing. Fitzsimmons testified at the trial that he guided the patrol car slowly along the street as Daniano made a visual search for the murder suspect. As the car came near to defendant, Dennis walked toward it, saying in a tone described by Daniano as "boisterous": "What did you do with my girlfriend?" The officers knew defendant to be Miss Cruz's boyfriend.

Daniano described what transpired as Dennis approached the car:

He put his hand in his pocket, and I had jumped out of the car and took his hand out of his pocket. Fearing that he might have a weapon, I took his hand out and searched him and I got the 22 decks of heroin.

The search referred to in the testimony was an examination of the pocket into which defendant had thrust his hand.

On cross-examination Daniano averred that defendant's hand was in his right pocket. When he pulled Dennis' hand out of the pocket, it "came out empty." The heroin was found when Daniano put his hand in that same pocket Daniano testified further:

Q * * * I asked you if you patted him down.

A Yes, yes.

Q Now, Officer, in your search, you were searching for a weapon, correct?

A That's correct, yes.

Q You thought he had a gun, is that correct?

A Yes.

Q Did you put your hand in that ...


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