Brody, J.c.c. (temporarily assigned).
Police received an anonymous telephone tip that defendant was then engaged in an illicit sale of controlled dangerous substances at his apartment. The informant added that defendant signaled his readiness to deal by placing a marijuana plant among the other plants in his second-story window.
Officers were dispatched to the scene. From the walkway to the apartment building they observed a marijuana plant
in the window as described by the informant. Believing a sale to be in progress, they next located the door to defendant's apartment and knocked. Receiving no response, they forced open the door and entered the living room. No one was there.
After noting the plant in the living room window, the officers fanned out to the other rooms, anxious lest miscreants be hiding somewhere in the apartment. Finding no one, they nevertheless continued their search inside boxes and bureau drawers, and behind bookcases. In the process they uncovered and seized over two pounds of unbagged marijuana, seven one-ounce bags of marijuana, three glassine bags of a lesser quantity of marijuana, a large weighing scale, a small weighing scale, marijuana smoking paraphernalia, and six tablets and two pills of controlled dangerous substances classified in Schedules II, III, and IV of N.J.S.A. 24:21-3 et seq. Defendant was thereafter indicted for possession of controlled dangerous substances, N.J.S.A. 24:21-20(a)(1) and (4), and for possession with intent to distribute. N.J.S.A. 24:21-19(a).
Although the police were acting in the good faith belief that they were free to extend their warrantless search on the basis of probable cause, I granted defendant's motion in part and suppressed all evidence uncovered after the search had exceeded the bounds of a limited search permissible to assure the safety of the officers. State v. Smith , 140 N.J. Super. 368 (App. Div. 1976). I denied the motion only as to the marijuana plant because its apparent use as a signal of an ongoing sale created a legitimate exigency justifying the police presence in the living room when it was seized. Cf. State v. O'Herron , 153 N.J. Super. 570 (App. Div. 1977); State v. Lane, Mont. , 573 P. 2d 198 (Sup. Ct. 1977).
Following disposition of the motion, negotiations between the parties resulted in defendant's guilty plea to possession of less than 25 grams of marijuana (a disorderly persons offense, N.J.S.A. 24:21-20(a)(4)) and
his present motion for suspension of further proceedings. N.J.S.A. 24:21-27 (hereinafter § 27). In return, the State agreed to move to dismiss the indictment, R. 3:25-1; to take no position with respect to defendant's motion, and to recommend a noncustodial sentence should his motion be denied. I have carefully reviewed defendant's presentence report. He is 29 years of age, has no record of prior arrests or convictions, is not drug dependent, and has long been steadily employed. Considering all the circumstances, I can follow the State's recommendation for a noncustodial sentence.
What remains is whether it is appropriate and constitutionally permissible to consider the suppressed evidence in deciding the § 27 motion and, if necessary, in fixing sentence.
The statutory setting and judicial interpretation of § 27 are found in State v. Alston , 71 N.J. 1 (1976) and State v. Sayko , 71 N.J. 8 (1976). Briefly, § 27 was intended to spare a first offender, controlled dangerous substance user or possessor who poses no danger to others, from suffering a judgment of conviction if he successfully completes a course of "supervisory treatment" deemed appropriate by a court. In order for a court to suspend further proceedings, a defendant must demonstrate eligibility according to the objective standards of subsection (a).*fn1 He must then qualify through judicial ...