Lynch, Bischoff and Kole.
This interlocutory appeal involves a procedural issue incident to a motion to suppress evidence obtained as a result of a warrantless search. R. 3:5-7(b).
On May 11, 1977 at about 10:15 P.M. Officer Gabriel Calabrese of the Jersey City Police Department and his partner were on routine patrol when they observed defendant Joan Torres seated on the ground in front of a garage. They peered through a hole in the overhead door and observed a flourescent light and dense smoke. The officers then pushed in a loose panel, unlocked and opened the overhead door. As the smoke cleared, three men were observed dismantling an undamaged 1975 car. Joan Torres admitted being the wife
of one of the three men working on the car. Her hands and clothes were greasy. The men claimed that the car was being dismantled for the owner as part of an insurance fraud. The next day the car was reported stolen and the men were ultimately charged with violations of N.J.S.A. 2A:170-1; N.J.S.A. 2A:170-30.1; N.J.S.A. 2A:170-38 and N.J.S.A. 2A:170-71.
On May 31, 1977 defendants filed a motion to suppress evidence obtained as a result of the warrantless entry into the garage. The hearing on the motion was adjourned several times and reached on July 15, 1977. By that date the State had filed its brief and affidavit in support of the search. Defendants simply filed a statement alleging there had been no fire and no emergency.
The State argued at the motion that since defendant had not filed any counter-affidavits, there could be no basis for a hearing pursuant to R. 3:5-7(b) and sought a denial of defendants' motion to suppress.
The judge ruled that R. 3:5-7(b) required only that defendants submit a statement of facts in order to demonstrate the existence of a factual dispute and that it was not necessary for defendants to file counter-affidavits in order to obtain a hearing pursuant to R. 3:5-7(c). The motion was set down for hearing and this interlocutory appeal, taken by the State pursuant to leave granted, is from that ruling.
If the search was made with a warrant, a brief stating the facts and arguments in support of the motion shall be submitted with the notice of motion. The State shall, within ten days thereafter, submit a brief stating the facts and arguments in support of the search to which movant may reply by brief submitted no later than three days before the hearing. If the search was made without a warrant, the State shall, within 15 days of the filing of the motion, file a brief, including a statement of the facts as it alleges them to be, and the movant shall file a brief and counter statement of facts no later than three days before the hearing.
If material facts are disputed, testimony thereon shall be ...