McGlynn, J.d.c., Temporarily Assigned.
[135 NJSuper Page 594] Defendants move to suppress a sizeable quantity of marijuana and numerous other items of contraband seized from an apartment at 265 Grove Street, Elizabeth by members of the Union County Prosecutor's Office and Elizabeth narcotics squad. The seizure was authorized by Superior Court Judge Harold A. Ackerman following a telephone conversation he had with Lt. Richard Mason of the Union County Prosecutor's Office and Assistant Prosecutor John H. Stamler of
that office. The question presented, a novel one in New Jersey, is whether a search warrant may be applied for and issued telephonically. I am of the view that such a warrant is valid and the seizure resulting from its issuance will be sustained.
Judge Ackerman was called at his home by Assistant Prosecutor Stamler shortly before 1 a.m. on March 18, 1974. Stamler and Mason both spoke with the judge simultaneously and presented information which had been received by Mason at 12:35 a.m. at his home. The conversation relating to the information and the warrant was recorded by Stamler and a transcript of the conversation from the preserved recording was prepared and later certified by Judge Ackerman. It reveals that the judge was called for the express purpose of hearing an emergent application for a search warrant.
Following the administering of an oath to Lt. Mason over the telephone by Judge Ackerman, Stamler asked the judge to accept Lt. Mason's qualifications as an expert in the field of drug abuse. Judge Ackerman did so based upon his prior knowledge of Mason's qualifications. Mason then told Judge Ackerman that some 20 minutes earlier he had received a phone call from Detective Pariso of the Essex County Strike Force, in which Pariso told him that at midnight a subject had been arrested in the South Mountain Reservation in Essex County following the sale of 40 pounds of marijuana to an undercover agent. The subject had told the Essex authorities that the 40 pounds was part of a large shipment of 300 pounds which had been brought into New Jersey by him and the defendant David Cymerman and that the remaining marijuana was in Cymerman's apartment at 265 Grove Street in Elizabeth. Pariso also told Mason that when they were effectuating the arrest in Essex County another person involved with defendants had escaped apprehension on foot and was at that time being sought by the authorities. Mason advised that the Essex County authorities
were concerned that if the person who escaped got to a telephone, he would call Cymerman and that therefore the balance of the marijuana would be lost from detection and seizure. Finally, Mason told Judge Ackerman that he had received reliable information from Pariso and other law enforcement authorities in Pariso's office on approximately 50 prior occasions, and that many substantial drug seizures had been made as a result of the prior information.
Stamler then advised the judge that he sought a search warrant limited solely to the apartment Mason described at 265 Grove Street, Elizabeth. Finding that probable cause existed for a search of the premises based on the information given to him in the call, Judge Ackerman authorized the search of the premises at 1:06 a.m. and further authorized Stamler to advise any persons at the apartment that the officers were acting pursuant to Judge Ackerman's authorization. A return on the warrant was prepared on March 20 and indicates that Stamler, Mason and five other officers executed Judge Ackerman's warrant at 1:19 a.m. on the apartment in question. The return and inventory of items seized were served on defendants David and Heidi Cymerman, the occupants of the apartment in question.
The evidence seized was made the basis of a conspiracy charge against those two defendants, Solomon Cymerman, John Garner and Lisa Brick. The overt acts include an allegation that on March 17, 1974 Garner, Brick and Solomon Cymerman possessed marijuana and Garner and Brick possessed LSD in Livingston, and that David and Heidi possessed marijuana in Elizabeth. A separate indictment charges Garner and Brick with possession and possession with intent to distribute LSD on March 17, 1974 in Livingston, and Garner, Brick and Solomon Cymerman with possession and possession with intent to distribute marijuana on the same date in Livingston. All of the charges against Garner and Brick have been disposed of and all of the remaining charges against David, Heidi and Solomon consolidated for
the purpose of trial. The Cymermans bring this motion to suppress.
At the very outset they contend that the evidence seized in Elizabeth pursuant to Judge Ackerman's authorization must be suppressed since the State absolutely failed to comply with the requirements of R. 3:5-3. That rule requires that the applicant for the warrant personally appear before the issuing magistrate. It contemplates that a written warrant be dated and issued, specifying the place to be searched, the property seized and the permissible hours of execution. Since Mason did not personally appear before Judge Ackerman, and since no written warrant was issued, defendants contend that the seizure was invalid.
This argument is without merit. It ignores the existence of R. 1:1-2, which permits the relaxation of any rule (with exceptions not applicable here) if adherence to the rule would result in an injustice. In State v. Fariello, 133 N.J. Super. 114 (App. Div. 1975), for example, the failure of the issuing judge to comply with the requirements of R. 3:5-6 regarding the filing of a summary of oral testimony was held not to invalidate an otherwise proper search. See State v. Clemente, 108 N.J. Super. 189 (App. Div. 1969), certif. den. 55 N.J. 450 (1970); In re Search of C Co. Premises, 115 N.J. Super. 262 (App. Div. 1971). In State v. Parsons, 83 N.J. Super. 430 (App. Div. 1964), the failure of searching officers to execute a proper return as required by present R. 3:5-5 was held not to vitiate an otherwise proper search. The court stated that the return of a search warrant is a ministerial act and that a deficiency or failure in the return does not avoid the warrant or search thereunder, "even if no return is made at all." 83 N.J. ...