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State v. Schelle

Decided: February 26, 1974.

THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JUDITH SCHELLE, DEFENDANT-RESPONDENT



Kolovsky, Fritz and Crane.

Per Curiam

The State appeals, upon leave granted, from orders suppressing evidence found on May 8 and May 24, 1973, when, under authority of search warrants issued on those respective dates, police searched defendant's apartment and found narcotics and narcotic paraphernalia therein.

The incidents here involved began with a report received by police of an armed robbery which had taken place on May 6, 1973 at the premises of Tak Merchandise Company on Route 46 in South Hackensack. The police concluded from the investigation made by them and from a photographic identification made by the victim of the robbery that one of the two culprits, the one who had pointed a gun at the victim, was Paul J. Cosgrove. Upon the filing of a complaint, a warrant issued for Cosgrove's arrest.

An investigation to ascertain Cosgrove's whereabouts was undertaken. On May 7, 1973 the local police learned from the State Police that a surveillance they had conducted of the residence of Judith Schelle at 292C Grove Street, Lodi, disclosed that Cosgrove had "frequented this place of residence."

In addition, the police received information from a confidential informant that Cosgrove could probably be found at that address and that he was armed.

On May 8 a lieutenant of the South Hackensack Police Department, accompanied by two State Police detectives and Lodi police officers, proceeded to the Schelle residence. A knock on the door brought no response, but the lieutenant, looking through the glass windows in the front door, saw the shadows of two persons inside at the top of the stairs. Continued knocking finally brought Mrs. Schelle to the door.

The South Hackensack police lieutenant told her that he was a police officer, that he had a warrant for the arrest of Cosgrove and asked to be admitted. Whether defendant Schelle permitted the officers to enter or whether the police entered without more is disputed in the proofs.

As the police entered the living room of the apartment they heard noises emanating from a closet and found Cosgrove hiding therein. Cosgrove was arrested. A search of the immediate area failed to disclose the weapon which Cosgrove reputedly was carrying.

After Mrs. Schelle was arrested for harboring a fugitive, one of the Lodi detectives was directed to, and did, apply for a search warrant authorizing a search of the Schelle apartment for the revolver which was believed to be there. The warrant was issued by the judge of the Lodi Municipal Court on the basis of an affidavit by the detective detailing the events which had occurred earlier that day.

No revolver was found when the entire apartment was searched pursuant to the search warrant. However, narcotics were found and Mrs. Schelle was arrested for possession thereof.

The trial judge's determination that the narcotics evidence so seized should be suppressed was bottomed on his apparent conclusion that, absent a search warrant, the police had no right to enter the Schelle apartment ...


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