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State v. Gaines

Decided: July 8, 1975.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERBERT GAINES, JR., DEFENDANT-APPELLANT



Michels, Morgan and Milmed. The opinion of the court was delivered by Michels, P.J.A.D. Morgan, J.A.D. (dissenting).

Michels

Defendant and six others were charged with possession of a controlled dangerous substance, to wit, heroin, in violation of N.J.S.A. 24:21-20. Defendant's motion to suppress evidence uncovered as a result of a warranted search was denied. Defendant and one other (codefendant Oreanne Williams) were found guilty by a jury. Defendant was sentenced to the Youth Correctional Institution Complex to be transported to the Youth Reception and Correction Center at Yardville for an indeterminate term.*fn1 Defendant appeals.

The State's proofs established that on January 27, 1973 Sergeant DiBiano and six other uniformed officers of the Asbury Park Police Department went to an apartment located at 1217 Springwood Avenue in Asbury Park for the purpose

of executing a search warrant. The apartment was leased by Katherine Ellis. As they approached the apartment Artee Roberta Watkins pulled the door shut. When Ms. Watkins refused to open the door Sergeant DiBiano was forced to break the glass window and open the door in order to gain entry to the apartment. Upon entering DiBiano observed defendant run into the bathroom and close the door. DiBiano followed defendant into the bathroom and found him lying fully clothed and face down in the bathtub. When defendant stood up DiBiano observed two glassine envelopes containing a white powdery substance in the bathtub. Subsequent analysis of the envelopes established that the substance contained therein was starch, not heroin.

Meanwhile, Officer Elliott, who had entered the apartment with Sergeant DiBiano, went to the kitchen area where he observed Oreanne Williams, who was with Ms. Ellis, throw a purse out the window. The purse was retrieved and found to contain narcotic paraphernalia. Detective Wheary observed Eugene Jennings near the area of the kitchen, Sylvester Ellis sitting on a bed and Daniel Johnson standing near him.

An immediate search of the 1 1/2-room apartment by the police officers disclosed 16 glassine envelopes near a window located in the living room, 21 glassine envelopes in the waste basket in the living room, and a plastic bag containing syringes, needles and bottle caps on top of the refrigerator in the kitchen area. Analysis of 5 of the 16 envelopes and 10 of the 21 envelopes established that the substance contained therein was heroin. Upon analysis, the syringes, needles and bottle caps also revealed traces of heroin.

On his motion to suppress the evidence seized pursuant to the aforementioned search warrant, defendant challenged the affidavit which was submitted in support of the application for the warrant. The affidavit averred that Sergeant DiBiano and Detective Wheary received information from an informant who had "provided reliable information in the past" that two females known as Katherine Ellis and Marie Ellis and a male known as "Kenny" were selling heroin

from apartment "N" at 1217 Springwood Avenue in Asbury Park, New Jersey. The affidavit further disclosed that DiBiano was subsequently informed by an investigator in the Monmouth County Prosecutor's Office that a male known as "Kenny" was selling heroin from this apartment, and that a check of the records of the Asbury Park Police Department revealed that Marie Ellis had previously been arrested for the possession and sale of heroin. The affidavit also indicated that DiBiano and Wheary made a surveillance of the described premises for about an hour and a half, during which time four persons, all of whom had arrest records for either the possession or sale of narcotic drugs, were observed entering the apartment.

Defendant contends that the trial judge erred in denying his motion to suppress the evidence seized pursuant to the search warrant, arguing that the supporting affidavit provided an insufficient basis for its issuance. We disagree.

The reliability of the informant is adequately vouched for by the statement that he had "provided reliable information in the past." State v. Ebron, 61 N.J. 207, 212 (1972). Reliable past performance on the part of an informant is an index to present reliability. State v. Perry, 59 N.J. 383, 390 (1971). Moreover, the accumulation of information from an investigator in the Monmouth County Prosecutor's Office, the records of the Asbury Park Police Department and the surveillance conducted by the applying police officers assures that none of the information contained in the affidavit stemmed from irresponsible rumor or conjecture.

It is well settled that police officers' statements made in affidavit form to support the issuance of a search warrant should be tested and interpreted by the court "in a common sense way without a grudging or negative attitude." State v. Kasabucki, 52 N.J. 110, 117 (1968); State v. Kurland, 130 N.J. Super. 110, 113 (1974). Once the judge has made a finding of probable cause on ...


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