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 Mountain, J.
[61 NJ Page 210] Defendant was tried and convicted upon a four-count indictment, of possessing heroin, cocaine, methadone and marijuana in violation of N.J.S.A. 24:18-4.*fn1 On appeal the Appellate Division concluded that defendant's pretrial motion to suppress should have been granted, basing its decision upon what that court felt to be the inadequacy of the affidavit upon which a search warrant
had issued. Accordingly it reversed the conviction and remanded the case for appropriate disposition by the trial court. At the same time it ruled against the defendant upon the issues of double jeopardy and collateral estoppel which he had unsuccessfully raised before the trial court. 113 N.J. Super. 152 (1971). Both sides sought certification and both petitions were granted. 58 N.J. 333 (1971).
The facts are set forth in the opinion of the Appellate Division but for convenience will be briefly restated. On January 4, 1968, officers from the Newark Narcotics Squad executed a search warrant at 86 West Kinney Street. In a basement apartment they found defendant in bed; further search revealed the various drugs mentioned above. They also found a hypodermic needle, a syringe and some Tuinal capsules. In addition to the crimes set forth in the indictment, defendant was also charged, in complaints filed in the Municipal Court of the City of Newark, with the disorderly persons offenses of unlawfully possessing a hypodermic needle, N.J.S.A. 2A:170-77.5, and legend drugs (Tuinal capsules), N.J.S.A. 2A:170-77.8. The trial of these complaints in the Municipal Court resulted in acquittals. It is upon these judgments of acquittal that defendant bases his defenses of double jeopardy and collateral estoppel.
The detective's affidavit upon which the search warrant issued is set forth verbatim in the opinion below, 113 N.J. Super. at 154-155. It states that the affiant has good cause to believe that narcotic drugs and paraphernalia used in connection with their sale or possession are concealed upon the above mentioned premises and are there being sold. This belief rests upon information said to have been received from reliable sources and from an informer who had proven reliable in the past. The affidavit further states that the affiant, together with five other detectives, placed the premises under surveillance upon three successive days for designated periods of time, and that seven named persons, each known to be a drug addict, were seen to pay brief visits during these intervals of observation. The affidavit also points out that 86
West Kinney Street was owned by defendant's mother who, at the time, was appealing a jail sentence for the possession of narcotics.
We consider first the adequacy of the affidavit. The Fourth Amendment to the Federal Constitution and Article I, paragraph 7 of the Constitution of this State, in almost identical language, forbid unreasonable searches and seizures and direct that no search warrant shall issue except upon probable cause. Probable cause has proven to be an elusive concept. It is something more than unsupported suspicion but may be less than proof needed to convict. State v. Davis, 50 N.J. 16, 23 (1967). It may rest upon evidence not competent at a trial, as for instance upon credible hearsay. State v. Kasabucki, 52 N.J. 110, 116-117 (1968). Where the allegations contained in the affidavit are solely the report of an unidentified informant there must be, in the totality of proofs submitted to the issuing magistrate, something from which he can reasonably conclude that the informer is trustworthy and something further in the way of "underlying circumstances" sufficient to support an independent judgment on his part as to the validity of the facts set forth. State v. Perry, 59 N.J. 383, 389 (1971); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). When the informant's statement fails to meet this "two-pronged test," the affidavit may nevertheless be sufficient if elsewhere in the application there is enough to "permit the suspicions engendered by the informant's report to ripen into a judgment that a crime was probably being committed." Spinelli v. United States, 393 U.S. 410, 418, 89 S. Ct. 584, 590, 21 L. Ed. 2d 637, 645 (1949). See also, Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971). We think the affidavit before us meets this test.
The reliability of the informant is adequately vouched for by the statement that he "has proved reliable in the past." Satisfactory earlier experience is sufficient to
meet this requirement. State v. Perry, 59 N.J. 383 at 390. The observations made during the periods of surveillance, precisely identifying seven known drug addicts as visitors to the premises, give strong support to the informer's tip. Further support is provided by the allegation that the house on West Kinney Street belongs to defendant's mother, who is currently appealing a sentence for possession of narcotics. While his mother's dereliction cannot condemn this defendant, and presumably would be inadmissible at his trial as evidence of guilt, nevertheless the likelihood of his association with drugs and drug addicts that may fairly be inferred from this statement may properly be given some weight on the issue of probable cause. It is clear that were defendant a known user of drugs, that fact might be so considered. Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697, 708 (1960). Although entitled to less weight, association of the kind suggested may likewise be a legitimate consideration. Furthermore, the implication of the premises themselves with this illegal activity -- a fair inference from the fact of the mother's ownership coupled with her conviction -- gives some additional support to the likelihood that a crime is being committed. As Chief Justice Burger recently said in United States v. Harris, 403 U.S. 573, 584, 91 S. Ct. 2075, 2082, 29 L. Ed. 2d 723, 734 (1971),
These latter factors, resting as they do upon inference are certainly not strong evidence of crime. In recognizing them at all we mean only to say that they may be considered -- along with all other relevant facts and circumstances -- as entitled to some weight on the probable cause issue. See also State v. Mercurio, 57 N.J. 367 (1971), ...