Lynch, Bischoff and Kole.
Leave having been granted, the State appeals from an order suppressing evidence which had been seized in defendant's apartment on January 23, 1976. As a result of the substantial amounts of controlled dangerous substances which were seized defendant was indicted for possession with intent to distribute, in violation of N.J.S.A. 24:21-19a(1), and possession, in violation of N.J.S.A. 24:21-20a(1).
The facts which follow have been derived from three sources: (1) a statement of facts made by defense counsel at the suppression hearing: (2) an affidavit prepared in support of an application for a search warrant, and (3) reports prepared by the arresting officers. Although the last two sources were not part of the evidence submitted at the hearing, the transcript reveals that the judge and the parties had the affidavit and reports before them. In any event, no testimony or other evidence was introduced at the hearing. See R. 3:5-7(c).
On January 23, 1976 members of the Bergen County Narcotics Task Force arrested one Dominick Mancini for distribution of a controlled dangerous substance to a juvenile. Mancini wished to cooperate with the Task Force and stated that one month earlier he had purchased 15,000 T.H.C. (tetrahydrocannabinal) pills from Nicholas Fenin, 226 Lincoln Place, Garfield. He described Fenin's residence as the second-floor apartment of a two-story dwelling with aluminum siding and partial brick facing. He added that he had been in Fenin's apartment several times and had observed drugs and marijuana there. A police check of motor vehicle and telephone records revealed that a Nicholas Fenin did reside at that address. Also, Investigator Settembrino of the Task Force confirmed Mancini's description of Fenin's premises.
Mancini agreed to make a telephone call to Fenin and to have the call monitored by Task Force members. The interception was approved by the First Assistant Prosecutor of Bergen County Roger Breslin, acting for Prosecutor Woodcock in accordance with N.J.S.A. 2A:156A-4(c). At about 5:30 P.M. Mancini called Fenin and asked to purchase 5,000 T.H.C. tablets. Fenin replied that he did not have that quantity on hand but would "make some phone calls." He also reminded Mancini that he owed $1,800 on prior purchases.
After the call was completed the detective in charge of the investigation applied for a search warrant covering Fenin's apartment and sent a team of Task Force investigators to maintain a surveillance of the apartment. The surveillance team was instructed to arrest Fenin for conspiracy to distribute a controlled dangerous substance if he attempted to leave his apartment before the other investigators arrived with the search warrant.
At about 6:50 P.M. that evening Fenin left his residence and entered his car. Investigator Settembrino then approached and arrested Fenin, advising him of his Miranda rights. "At this time [the surveillance team] went into
Fenin's apartment to be sure no one was there and to secure the premises." After a "quick look around," the officers sat down with Fenin at his dining room table and awaited the warrant. The warrant had been signed by a judge at about 7 P.M. and the other Task Force members arrived with it at 7:20 P.M. After receiving the warrant the police conducted a search of the apartment, and several proscribed narcotics and drug paraphernalia were seized. It was this evidence that defendant successfully sought to suppress.
At the argument of defendant's motion to suppress, no testimony was offered. Rather, the parties presented legal argument on the validity of the wiretap, arrest and initial entry into the apartment. The State attempted to justify the entry by claiming that it was undertaken pursuant to a valid arrest and was warranted by exigent circumstances. After a brief hearing on February 14, 1977 the judge ordered a further hearing on February 24, 1977, in order to allow the State to show that it complied with N.J.S.A. 2A:156A-4(c) in setting up the wiretap.
On February 24, 1977, after compliance with the Wiretapping and Electronic Surveillance Control Act was demonstrated, the judge requested arguments on the issue of probable cause to arrest. The State indicated that probable cause was established by the prior telephone call. Further, the State urged that the initial entry was incident to a valid arrest although it also claimed -- rather briefly -- that exigent circumstances existed as well.
In an oral opinion the judge suppressed the evidence. He found that Investigator Settembrino had no probable cause to arrest Fenin at the time because the "uncorroborated testimony" of Mancini did not display any "aura of trustworthiness" or reliability. Additionally, the judge found that the entry was not justified by ...