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State v. Harris

Decided: July 7, 1976.

STATE OF NEW JERSEY, PLAINTIFF,
v.
LANDY DONNELL HARRIS, DEFENDANT



Coleman, J.c.c., Temporarily Assigned.

Coleman

The matter comes before the court on a motion for the suppression of evidence pursuant to R. 3:5-7. The facts which are undisputed are as follows:

On March 21, 1975 a breaking and entry occurred at the home of Edward Ennis. A careful investigation showed that entry was gained through a window. On March 22, 1975 defendant's fingerprints were found on the window and at several locations inside the home. A television and a silver English coin were taken from the home. After an application was made for a search warrant it was issued on March 24, 1975 authorizing a search of defendant's apartment and his automobile, the seizure of the television and the old English coin.

On March 24, 1975 the search warrant was executed on the apartment of defendant. Entry into the apartment was accomplished with the aid of a visiting female. The entire apartment was searched, but the television and the silver English coin were not located. However, while searching for the television and the English coin, the police saw many other items which they seized. Those items are: four electric radios of various models; three televisions, one located behind the sofa and one in a closet, each having the wires wrapped around them and not plugged into electrical outlets; one changer, three speakers, one stereo, two turntables,

one stereo recorder and seven unopened boxes of Oneida silverware in a kitchen closet. Some of stereo equipment was stacked behind the refrigerator with the cords wrapped around them and not plugged into any electrical outlet. On a bar in the living room the policemen found two speakers which contained initials other than those of defendant. A United States Savings Bond in the name of Devona Watkins was found in the bedroom. One of the officers conducting the search believed that one of the clocks found in the apartment, the Panasonic turntable, the Panasonic AM/FM eight-track stereo recorder and two brown wooden speakers looked like articles wanted in connection with other burglaries.

All of the seized articles were taken by the police to police headquarters to ascertain if they had been reported as stolen in previous thefts. After the look-up all articles not recorded as such were returned to defendant, but further investigation by the police revealed that the suspension air speaker, the eight-track AM/FM stereo and the turntable belonged to a Harry Conover -- and this which formed the basis of Indictment No. 853, J.S. 1975. A continuing investigation further disclosed that the Sears AM/FM clock radio, the RCA portable television found on the floor of the bedroom, the Panasonic turntable, the Panasonic AM/FM eight-track stereo recorder and the two brown wooden speakers that were found hooked up on the bar belonged to Roy Southerland -- and this formed the basis of Indictment No. 852, J.S. 1975. Indictment No. 881, J.S. 1975 charges breaking and entering with intent to steal and larceny of the television and English coin from Edward Ennis which were never located by the police.

I

The defense challenges the constitutional sufficiency of the affidavit that ultimately led to the issuance of the search warrant. The court finds this contention to be without

merit. The facts, as set forth in the affidavit, make it very clear that a crime had been committed, namely, a breaking and entry with intent to steal and larceny at the home of Edward Ennis. Defendant's fingerprints were found on the window where entry was gained, as well as inside of the apartment. Fingerprints are inherently reliable as identifying evidence. Davis v. Mississippi , 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969). Under these circumstances, the inference is sufficiently probative to establish that defendant, being a suspect in a crime of this sort, would probably secrete the purloined articles in his apartment or his automobile. United States v. Bell , 126 F. Supp. 612 (D.C. Dist. 1955); United States v. Lucarz , 430 F.2d 1051 (10 Cir. 1970); State v. Kline , 42 N.J. 135 (1964); State v. Seefeldt , 51 N.J. 472 (1968). In view of the rule which mandates that this court pay substantial diferrence to the determination made by the issuing judge that probable cause existed for the issuance of the warrant, State v. Kasabucki , 52 N.J. 110 (1968), this court finds that defendant has failed to overcome the presumptive validity of the warrant. See State v. Mark , 46 N.J. 262 (1966).

II

As mentioned previously, the search of the premises was conducted pursuant to a search warrant, but the items seized were not those enumerated in the search warrant. Thus, it is defendant's contention that since the items seized were not enumerated in the search warrant, the seizure of the items was tantamount to a warrantless seizure. This is a correct postulation by the defense. Thus, the State has the burden of establishing by preponderance of the evidence, State v. Whittington , 142 N.J. Super. 45, 359 A.2d, 881 (App. Div. 1976); United States v. ...


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