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State v. McNair

Decided: January 17, 1972.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
HENRY MCNAIR, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Jacobs, J.

Jacobs

[60 NJ Page 9] The defendant was convicted in 1970 on evidence that he illegally possessed a total of 1010 glassine envelopes and capsules containing heroin at the store premises located at 98 South Orange Avenue, Newark. He did not move for a new trial and is barred under R. 2:10-1 from questioning the weight of the evidence; however, we have reviewed the transcript of the trial and find that the

State's evidence was compelling and established the defendant's guilt beyond reasonable doubt. He was sentenced as a second offender to State Prison for not less than 15 nor more than 20 years plus a fine of $2,000. His earlier narcotics conviction was in 1958 and was grounded on evidence that he possessed 51 decks of heroin and was undoubtedly "a distributor" of the drug. See State v. McNair, 59 N.J. Super. 453, 457 (App. Div. 1960), cert. denied, 365 U.S. 829, 81 S. Ct. 715, 5 L. Ed. 2 d 706 (1961). At that time, and in the light of his earlier criminal record (59 N.J. Super. at 457), he was sentenced to State Prison for 10 to 12 years plus a fine of $1,000. 59 N.J. Super. at 455.

The defendant appealed his 1970 conviction to the Appellate Division which, in an unreported per curiam, properly rejected his attack on the weight of the evidence and expressed the view, with which we agree, that if the conviction is valid the sentence should not be disturbed. However, it accepted the defendant's attack on the validity of the search which resulted in the seizure of the heroin. It held that a motion by the defendant to suppress the evidence had been improperly denied by the trial court and it accordingly reversed the defendant's conviction. We granted certification on the State's application. 58 N.J. 329 (1971).

The store at 98 South Orange Avenue was described as a confectionery and shoeshine parlor. However, it had no exterior signs or names and its confectionery and shoeshine operations were evidently not substantial. Its nominal owner was a young niece of the defendant, but at the time of the search and seizure she had another job and had little or nothing to do with the conduct of the store. Detectives Gockeler and Jackson of the Newark narcotics squad had the store under surveillance because of the defendant's connection with it. Gockeler stated that he saw the defendant (generally called "Pops" (see 59 N.J. Super. at 457)) on various occasions behind the counter in the store, that he saw him on one occasion ringing the cash register, and that the store is known as Pops'.

During the surveillance the detectives had received information that the defendant "was selling dope but not from the store." However, on June 5, 1969, Gockeler and Jackson were riding in their unmarked police car when they met one of their paid informers who told them that Pops was selling narcotics from the store. They headed towards it, parking nearby. Shortly thereafter they saw Pops leaning over and talking to someone in a car parked in front of the store. Gockeler recognized the person Pops was talking to as a registered narcotics addict. At that point the detectives started driving towards the store.

According to Gockeler's testimony, which was fully credited by the trial court, Pops knew that Gockeler and Jackson were police officers and as soon as he saw their car coming towards him he went "hurriedly" into the store, apparently almost in a run. The detectives left their car and went after Pops as fast as they could. As they entered the store they saw Pops and no one else inside. As Gockeler described it, "the store has three rooms" and the defendant "was in the second room coming out of what looked like a doorway on the left." While Gockeler was entering the second room he noted an open brown bag on the floor. He picked it up and found that it contained 26 "glassine envelopes with a white powder." From his training and experience he concluded that the white powder was heroin and this was later confirmed by chemical analysis. At that juncture Gockeler formally told the defendant that he was under arrest and that the store was going to be searched.

While Jackson took the defendant into custody, Gockeler searched the middle room and found some "empty glassine envelopes and a .32 caliber colt automatic and holster" on a shelf under a counter top. He then went to the rear and searched what he guessed was "the stockroom" which contained little other than "a locked closet." He located the key and opened the closet finding "a large plastic bowl which contained thirty-one stacks of glassine envelopes." He testified that there were "fifteen envelopes in each stack for a

total of four hundred sixty-five envelopes." He also found a brown bag containing 335 loose glassine envelopes and a green box which was lettered "gelatin capsules." There were 184 capsules in the box and they, along with the glassine envelopes, contained a white powder later identified as heroin.

The fourth amendment does not prohibit all searches but only those that are unreasonable. See State v. Boykins, 50 N.J. 73, 78 (1967); State v. Mark, 46 N.J. 262, 275 (1966). Whether a search is reasonable will turn on the particular facts presented and whether information given to the police justifies a particular search may, as here, turn on suspicious and furtive conduct which serves to corroborate the information. See United States v. Rubio, 404 F.2d 678, 681 (7 Cir. 1968), cert. denied, 394 U.S. 993, 89 S. Ct. 1482, 22 L. Ed. 2 d 770 (1969); United States v. Soyka, 394 F.2d 443, 453-454 (2 Cir. 1968), cert. denied, 393 U.S. 1095, 89 S. Ct. 883, 21 L. Ed. 2 d 785 (1969); People v. Satterfield, 252 Cal. App. 2 d 270, 60 Cal. Rptr. 733 (1967); People v. Landry, 230 Cal. App. 2 d 775, 41 Cal. Rptr. 202 (1964); People v. Vegazo, 191 Cal. App. 2 d 666, 13 Cal. Rptr. 22, 24-26 (1961); State v. Boswell, 115 N.J. Super. 253 (App. Div. 1971); State v. Royal, 115 N.J. Super. 439 (App. Div. 1971).

In Vegazo it was noted that when a person approached by an officer "engages in furtive conduct" the officer may well be justified in making a search and arrest "in view of the officer's prior information and his knowledge of the person's background." 13 Cal. Rptr. at 25; People v. McMurray, 171 Cal. App. 2 d 178, 340 P. 2 d 335, 339-340 (1959). See State v. Boykins, supra, 50 N.J. at 80; State v. Boswell, supra, 115 N.J. Super. at 257; State v. Royal, supra, 115 N.J. Super. at 441-442. In Satterfield officers who had been informed that the defendant was selling heroin went to his home ...


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