On appeal from Superior Court, Law Division, Essex County.
Allcorn, Horn and Furman.
Tried to a jury on a five-count indictment charging defendant Edward J. Miller with the murder (first count) of Joseph Hill, contrary to N.J.S.A. 2A:113-1 and 2, and robbery (second count) of said Hill, contrary to N.J.S.A. 2A:141-1, while armed (third count), contrary to N.J.S.A. 2A:151-5, and also the robbery (fourth count) of Jeffrey B. Dunstan, contrary to N.J.S.A. 2A:141-1, while armed (fifth count), contrary to N.J.S.A. 2A:151-5, Miller was found guilty of all said crimes. Following the imposition of sentence, he appealed on three grounds.
The criminal actions of defendant allegedly took place in a photography studio of said Hill at about 5:30 P.M. on January 17, 1975 during which Hill was robbed and murdered, and Dunstan, his assistant, was robbed. Other facts pertinent to the issues raised by defendant will be related in connection therewith.
Defendant's first ground of appeal is that his motion to suppress a warrantless search was improperly denied by the judge. During a search of a rooming house in Plainfield, in Room 24, Police Officer Gallagher found a .38-caliber revolver under a rollaway-type bed, and Police Officer Davis found .38-caliber shells in a drawer. In Room 14 Gallagher found a sawed-off shotgun under a mattress. Later the shotgun was identified as having been used in the murder and
the robberies, and it was established that a revolver was also used by the two men who perpetrated the crimes.
The police officers had been admitted into the two rooms by Kay Ritchie, who identified herself as the cousin of defendant and the girlfriend of his alleged accomplice, Lloyd Jackson. According to the policemen's testimony, Ritchie also told them that she, defendant and Jackson resided together in both rooms. She accompanied the policemen to the rooming house from the hospital, where she had met them.*fn1 She unlocked the doors of each of the rooms in admitting them. The State contends that Ritchie gave a valid consent to the search or, alternatively, it was justified by exigent circumstances. Defendant contends that Ritchie could not give consent and there were no exigent circumstances.
The Fourth Amendment proscription of unreasonable searches and seizures prohibits warrantless searches, but is subject to exception when, among other times, a search is conducted pursuant to valid consent, or when there are so-called exigent circumstances. State v. Allen , 113 N.J. Super. 245, 251 (App. Div. 1970). The State bears the burden of proving that circumstances existed justifying a warrantless search. State v. Brown , 132 N.J. Super. 180, 185 (App. Div. 1975).
According to Officer Katcher, Ritchie responded to Detective Davis' request to search by saying, "Yes, you can search it. You know, it is my apartment. I live in both apartments. I have stuff and I have a key to the apartment." She then proceeded to unlock Apartment 24, which was searched and a pistol found. As soon as she went into that apartment she went to the kitchen and took some food from the refrigerator. They then went downstairs to Apartment 14, which she also unlocked. There the shotgun was found.
Defendant contends that the State failed to meet its burden of proof because it never produced Ritchie to testify and never sought defendant's consent ...