Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.
Pursuant to leave granted by us, the State appeals from an order suppressing evidence obtained in a search authorized by a warrant. The issue for determination is whether a search warrant is valid when issued on an affidavit which alleges that the contraband is en route from a foreign country through the mail and has not as yet reached the addressee in New Jersey. Is an anticipatory warrant valid under such circumstances when issued prior to receipt at the destination to be searched?
A subsidiary issue is whether, under the facts presented, the actions of federal authorities and of local police are so unfair as a matter of public policy that the seizure should be declared invalid.
The affidavit underlying the issuance of the warrant made by Detective Zampino of the Passaic Police Department on December 11, 1975 recited in essence the following facts. Information was received by the Passaic police from a named federal narcotics agent that Natalio Mier (defendant), residing at 88 Third Street, Passaic, had a small package addressed to him mailed from Bolivia, South America, containing coca leaves and that the package was at that time in the possession of Postal Inspector Dowling.
Dowling advised Police Officer Snyder that he, Dowling, had received the package on December 10, 1975 by registered mail from a customs officer who had examined it in the normal course of his business at the Port of New York. The contents of the package, consisting of approximately 15 grams of coca leaves, were field-tested and found to have a positive reaction for cocaine.
On the same date Detective Zampino communicated with Public Service Gas & Electric Co. and ascertained that Natalio Mier was listed as the occupant of Apt. #1 at
88 Third Street, Passaic, and paid the bills addressed to him there. The affidavit continued to state that as of that time the suspected contraband was in the possession of Inspector Dowling and awaiting an opportune time for delivery to Mier when the police would confiscate it pursuant to the search warrant.
The warrant was issued by a municipal court judge on December 10, 1975 and executed the very next day by Detective Zampino, who seized the coca leaves which had been delivered five minutes before to defendant by Inspector Dowling posing as a mailman. The contraband seized by the police pursuant to the search warrant consisted of a plastic bag containing the original coca leaves shipped to defendant, in addition to other plastic bags of suspected coca leaves found in various locations in the apartment.
The trial judge suppressed the evidence on the ground that the warrant was invalid because law enforcement authorities, not the defendant, were in possession of the contraband at the time it was issued, and therefore there was no probable cause to justify its issuance. The judge also characterized the entire procedure as "patently unfair."
The question of the validity of an anticipatory warrant is one of first impression in the State of New Jersey,*fn1 although such a warrant has been sustained in other jurisdictions.
There is no particular constitutional infirmity in the mere fact that a warrant is sought to search for contraband which has not as yet reached the destination described therein. The test of constitutional validity is simply whether the search is reasonable under such ...