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State v. Perry

Decided: November 8, 1971.


For suspension for six months -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Mountain. Opposed -- None. The opinion of the Court was delivered by Proctor, J.


The primary issue in this case has to do with the legal sufficiency of an affidavit for a search warrant.

The defendant Perry and one Watkins were found guilty by a jury in the Essex County Court of armed robbery of a bus driver in the City of Orange on the night of March 19, 1968. Only Perry appealed. The Appellate Division in an unreported opinion held that there was evidence from which the jury could find beyond a reasonable doubt that Perry was one of the two culprits. However, it reversed the conviction on the ground that the revolver used in the holdup, the money changer and coin bag taken from the driver which were found in Perry's apartment were improperly admitted in evidence. It held these items were obtained in execution of a search warrant based upon a legally insufficient affidavit. We granted the State's petition for certification. 57 N.J. 598 (1971).

Perry and Watkins did not move to suppress the seized items before the trial. Rather, their motions were made [59 NJ Page 386] during the course of the trial when the State offered the revolver in evidence. The trial judge entertained the motions to suppress over the State's objection that they were not timely made under R.R. 3:2A-6*fn1 because Perry had pleaded on June 3, 1968, to an indictment charging the same offense. He failed to make a motion to suppress during the period between his initial plea and the trial which commenced on October 8, 1968. The trial judge held that the matter then before him was being tried pursuant to a joint indictment to which Perry and Watkins pleaded on the day before the trial*fn2 and, therefore, the motions were timely made. He further said that since it was conceded that Watkins' motion to suppress the items seized was made within 30 days after his initial plea to the joint indictment and must be heard, it would be discriminatory to hear one defendant's motion without the other. Without passing on this ruling as to the timeliness of Perry's motion, we are of the opinion that both Watkins' and Perry's motions should not have been entertained during the course of the trial. Rather, the defendants should have moved to postpone the trial until the motions were disposed of. R.R. 3:2A-6 expressly provides that a motion to suppress must be determined before trial unless the court finds that a defendant could not reasonably have done so. The trial

court made no such finding and the defendants gave no satisfactory reason for their failure to move to suppress prior to trial. The rule is reasonable and must be met if there is to be order in the judicial process. State v. Broxton, 49 N.J. 373, 388 (1967).

While this case could be disposed of for the above reason, we prefer to base our holding on the ground that the affidavit was constitutionally sufficient.

At the suppression hearing Perry did not attack the sufficiency of the affidavit upon which the search warrant was issued, but merely challenged its accuracy contending that the apartment belonged solely to Watkins. The trial judge found that there was substantial evidence that Perry was in control of the apartment. We agree with this finding and no point of that is made on this appeal. In denying the motion the trial judge also passed on the sufficiency of the affidavit and held that it was "ample" to justify the issuance of the search warrant.

It was established at the trial that on March 20, 1968, the day after the holdup, Detective Wioland of the Newark Police Department applied to a magistrate of that city for a search warrant for Perry's third floor apartment in a three family house at 872 Hunterdon Street, Newark. At the time of this application, the detective did not know of the robbery of the bus driver the night before in Orange. His application, with his supporting affidavit, was based on the belief that Perry was the possessor of property taken in robberies and larcenies unconnected with the holdup. His affidavit sets forth in pertinent part:

I have just and reasonable cause to believe that the above mentioned items are concealed in the apartment of Norman Perry, located 872 Hunterdon St., City of Newark, N.J. County of Essex, State of New Jersey, and I have just cause to suspect that the occupant of the apartment, Norman Perry are violating the law commonly known as Possession of Stolen Property, 2A:139-1, Possession of Narcotics (Legend Drugs) 2A:170-77.8, contrary to the statue [sic] in such case made and provided.

The warrant was issued and the search was made that same day. During the search the revolver used in the holdup, the change carrier and coin bag taken from the bus driver, among other items, were found by the police.

On Perry's appeal to the Appellate Division, he raised for the first time, without objection by the State, his contention that the affidavit was insufficient. Cf. State v. Wright, 113 N.J. Super. 79, 81 (App. Div. 1971). The Appellate Division upheld this contention finding the affidavit did not show that the informant was credible and did not sufficiently state the underlying circumstances from which the informant concluded that the defendant possessed contraband. It found that there was nothing more in the affidavit than the recitals in State v. Burrachio, 39 N.J. 272 (1963); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2 d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2 d 637 (1969). The Appellate Division concluded that it was compelled by those decisions to hold that the affidavit in the present case was similarly insufficient. We disagree.

In our case of Burrachio, the application for a warrant was based solely on information given to the affiant "to the effect that bookmaking and lottery are being conducted" in the described premises. ...

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