Michels, Morgan and Milmed. The opinion of the court was delivered by Morgan, J.A.D.
[135 NJSuper Page 474] The essential issue to be determined on this appeal is whether the fruits of a search conducted pursuant to an alleged "oral search warrant" must be suppressed. Subsumed thereunder are the further issues of whether the warrant in the present case was an oral one and, if so, whether in contemplation of state and federal constitutional and procedural law, an "oral search warrant" is the legal equivalent of a written one.
The facts which generate these questions are simple and free from dispute. On March 30, 1973 Detectives Robert Fuller and Joseph Kownacki of the Trenton Police Department applied to a judge of the Superior Court of New Jersey for issuance of a search warrant. The need for the warrant had become apparent within a brief period of time before their appearance, and they lacked the usual prepared affidavits setting forth the facts supporting their application. Instead, they gave sworn oral testimony in the presence of the judge, which was stenographically recorded, later transcribed, and is part of the record on this appeal. R. 3:5-3; R. 3:5-6.
That testimony disclosed that Fuller and Kownacki had just arrested defendant and one Herman Lester for possession of narcotics. At the time of the arrest, defendant was found in possession of a large amount of money in addition to the narcotics found on his person, and a key to Room 1223 of a particular Holiday Inn. The officers retained the narcotics, but perceiving the key to be of no particular significance at the time, permitted defendant to return it to his pocket with his other belongings.
Contemporaneously with the arrest of defendant and Lester, one Jerome "Eyes" Smith was arrested. Smith offered to aid the officers if he would be given a "break." He then informed the officers that defendant had "dope" in one of the hotels, but refused to elaborate further. On a "strip search" of defendant at police headquarters following his arrest Fuller observed that the key he had previously seen was missing. On inquiry as to its whereabouts defendant denied ownership of the key, but told the officer that it was in the police van which had transported defendant to police headquarters. The key was discovered in a well in the rear of the truck where the prisoners had been sitting.
The detectives testified that they then contacted a Robert Bradley, manager of the Holiday Inn, who informed them that Room 1223 was registered to one Troy Pointer, although under an assumed name. Pictures of defendant were taken to Bradley, who then identified defendant as the person to whom
the room was registered. Bradley was told to double lock the door to that room and have a public officer posted in front of it. There was no noise from inside the room.
It was on the basis of this sworn testimony that the judge authorized a search of Room 1223 in this Holiday Inn, together with anyone found therein, advising the detectives that a written warrant reflecting his oral authority would be issued within a few days. In fact, the warrant was issued approximately five days after the search, dated March 30, 1973, nunc pro tunc. The same judge who provided the oral authorization for the search sat on defendant's motion to suppress the evidence uncovered in the search, over defendant's objections, and denied the motion. Defendant was later tried and convicted of possession of heroin (count 1) and possession of heroin with intent to distribute (count 3). Count 2 had been dismissed. Defendant was sentenced to the New Jersey State Prison for a term of not less than 6 nor more than 12 years on count 3, and not less than 3 years or more than 5 years on count 1. Both sentences were to be served concurrently.
Preliminarily, we conclude that the testimony given by the officers in support of their application for issuance of a search warrant sufficiently established probable cause for its issuance. Smith's tip, that defendant possessed heroin in an unidentified motel room, standing alone would not have justified issuance of the warrant, although the circumstances in which it was given could have been found by the issuing judge to be suggestive of some reliability. Smith was not an unknown informer. His identity was known and he was giving the tip as a quid pro quo for a desired "break" from law enforcement officials. Had the tip proven valueless, Smith's attempt at lenient treatment would have failed. This factor was an important consideration in the evaluation of Smith's credibility and the reliability of the information, however sketchy, that he imparted. Beyond this, however, the evidence received as a whole provided a "substantial basis" for the court's finding of probable cause. United States
v. Harris, 403 U.S. 573, 579-581, 91 S. Ct. 2075, 2079-2081, 29 L. Ed. 2d 723, 731-733 (1971). In addition to Smith's information, the judge was informed that defendant had just been arrested with narcotics in his possession; he was also found with a large amount of cash and a motel room key; he first disclaimed ownership of the key, a fact shown to be false by later investigation of the testifying officers, and attempted to hastily rid himself of it by discarding it in the police van; the motel room identified by the key was in fact rented by him, although under a false name, a fact which corroborated, in part, the "tip" given by Smith. Based upon all of this information, the judge correctly found that probable cause for searching the motel room existed. State v. Perry, 59 N.J. 383, 388 (1971); State v. Mercurio, 113 N.J. Super. 113 (App. Div. 1970), aff'd o.b. 57 N.J. 367 (1971).
Defendant next contends that the failure of the judge to issue the customary form of warrant prior to the search impaired his Fourth Amendment right to protection against unreasonable searches and seizures. He takes the position that the search was conducted pursuant to oral authority of a judge, was therefore ...