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State In re A.C. v. A.C.

Decided: June 3, 1971.


Lewis, Matthews and Mintz. The opinion of the court was delivered by Lewis, P.J.A.D.


[115 NJSuper Page 79] A.C., a juvenile, appeals from an adjudication of delinquency in the Union County Juvenile and Domestic Relations Court, whereby he was committed to the "New Jersey Reformatory for Males"; the sentence was suspended and the youth was placed on probation. He now seeks a reversal of that adjudication on the grounds that (1) the automobile search, the seizure of the alleged marijuana and his arrest were unlawful; (2) the State failed to produce at the trial the best evidence, i.e. , the marijuana itself, and (3) it was not proven that he was in the car for

an unlawful purpose so as to justify prosecution under the "Good Account" or Juvenile Delinquency Statutes.

The record reveals that on July 30, 1968, at about 3:07 A.M., Officers Pinho and Mulhearn of the Elizabeth Police Department were conducting a routine patrol in the vicinity of an area which Pinho described as a "very high crime area and * * * a very large narcotic area."

Pinho testified that as his patrol car was proceeding in a southerly direction on Fifth Street he noticed a car parked on Magnolia Avenue in which "one or two heads appeared to duck down as [they] rode past." The suspicion of the officers was aroused and they stopped to investigate the parked car, which was occupied by defendant A.C., his brother S.C., H.G. and Elwood Thomas. Except for the latter, all of the others were under 18 years of age. Defendant was at that time 16 years old. The doors of the parked vehicle were locked and the windows shut save for a partially opened right rear window. The car was owned by defendant's uncle.

When Officer Pinho approached the automobile he asked Thomas what they were doing there and he is said to have replied that they were just sitting in the car. According to defendant, all of the occupants replied, "We wasn't doin' nothin' but listen to the radio." Officer Pinho noticed that there was smoke in the car and that two of the occupants, one of whom he recalled was Thomas, were smoking cigarettes. When he focused his flashlight in the rear of the automobile he observed a homemade cigarette, which he believed to be a marijuana reefer, on the rear seat between H.G. and Thomas. He also observed two manila envelopes -- "the type of which marihuana is carried in" -- on the rear floor. After the contents of the manila envelopes were examined, Pinho concluded that marijuana had been found. The occupants of the car were then placed under arrest for possession of that drug. At this juncture we note Pinho's testimony that he had received training in a police academy with respect to narcotics and marijuana and

that within the last two years he had made 40 to 50 arrests involving marijuana.

It is plain from the evidence that the items seized were properly transmitted by the officer to the chemist employed by the New Jersey State Police and that the samples analyzed were, in fact, marijuana. There is no substance to the argument that the chain of possession from the time Pinho seized the alleged marijuana to the date of trial was not adequately established. The proofs plainly reveal a proper chain of possession.

It has long been settled that objects in the plain view of a law enforcement officer, who has a right to be in the position to have that view, are subject to seizure and may be introduced into evidence. Harris v. United States , 390 U.S. 234, 236, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); State v. Bell , 55 N.J. 239, 248 (1970); State v. Hock , 54 N.J. 526, 533-535 (1969), cert. den. 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); State v. DiRienzo , 53 N.J. 360, 385 (1969). The police actions in the instant circumstances did not constitute a search of the vehicle, but assuming that they did, the standard of the validity of such actions would be reasonableness and not certitude. See State v. Gosser , 50 N.J. 438, 447 (1967), cert. den. 390 U.S. 1035, 88 S. Ct. 1434, 20 L. Ed. 2d 295 (1968); State v. Miller , 47 N.J. 273, 278 (1966). We find no demonstration of unreasonableness.

The argument that the "best evidence" -- the marijuana itself -- was not introduced is devoid of merit. The best evidence rule pertains to the proof of writings. 4 Wigmore, Evidence (3d ed. 1940), §§ 1173-1175 at 301-304; McCormick, Evidence § 195, at 408-409 (1954). Moreover, even if the seized marijuana, the real evidence, were the best evidence of marijuana possession, its destruction, in the instant circumstances, would not necessarily preclude the introduction of other "secondary" evidence. See In re Rasnick , 77 N.J. Super. 380, 387 (Cty. Ct. 1962). Defendant's contention ignores Pinho's personal observations, the findings

of the State's chemist, and the testimony of witnesses who ...

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