[161 NJSuper Page 527] Defendants move to suppress evidence of narcotics and bookmaking seized in their second-floor
apartment at 602 Paterson Plank Road, Union City, New Jersey on February 2, 1977. A search warrant for the first -floor apartment of the same premises was issued by Municipal Judge Joseph Farrell on the basis of an affidavit submitted by Detective Charles Kohrherr of the narcotics squad. He was the only witness produced at the hearing.
The affidavit for the warrant recited that Kohrherr received certain information from a Detective Roth of the Jersey City Police Department which information Roth had received from a reliable informant. The informant had observed David Galvin [Sr.] selling percodan pills and liquid demerol (both controlled dangerous substances), at the premises described in the warrant. The informant told the officer that Galvin lived in the first-floor apartment and that narcotics were located in the front bedroom closet of those quarters inside a suitcase.
Kohrherr in his affidavit further stated that an investigation conducted by members of his department confirmed the fact that Galvin did live at the address given by the informant. Kohrherr knew Galvin from prior criminal involvement.
The affiant personally visited Galvin's suspected address and found located there a tavern on the ground floor, an apartment above the tavern ostensibly occupied by one named "Rocchetti" and another apartment on the top floor. The name "Rocchetti" had surfaced in previous narcotic investigations.
The witness testified that he and other officers in the early evening hours went to the apartment above the tavern to execute the warrant. They knocked on the door and were met by a Joseph Rocchetti. The officers identified themselves, informed Rocchetti of the warrant, and he permitted the officers to enter.
Rocchetti then advised the officers that Galvin frequently visited his apartment but that he actually lived with Rocchetti's sister, Doris in the top-floor apartment. Upon learning that the suspect lived upstairs the officers hastily
searched Rocchetti's apartment and then proceeded to the next floor. Two officers remained in Rocchetti's apartment. As the officers moved upstairs they passed a person later identified as David Galvin, Jr., also a defendant, who was on his way down the stairs. Kohrherr testified that he feared the possibility of a "tip-off" to the upstairs occupants so all officers moved with dispatch to secure the top-floor apartment. It was their intention, he stated, to enter without searching the apartment until a search warrant for that apartment could be obtained.
The officers' knock on the second-floor apartment door was answered by a woman whom Kohrherr knew from previous narcotics arrests. He asked the woman if Doris Rocchetti or David Galvin were there and received the response indicating that they lived there but were not then at home. When Kohrherr informed her that he fully intended to obtain a warrant to search the apartment, the girl backed away from the door and the officers entered. Several persons sitting in the kitchen were instructed by the officers to stay where they were.
The officers remained in the same room and did not search the apartment except for one detective, who, in order to insure their safety, peered into the other rooms. Kohrherr recalled seeing a bottle of pills in plain view in the kitchen.
Very shortly after entering the apartment the telephone rang. Kohrherr answered it. He testified he did so to prevent anyone in the room from informing the defendant Galvin, Sr. or anyone else of the officers' presence. Upon answering the phone a male voice on the other end asked if this was "Bobby." Detective Kohrherr replied "Yeah," and the caller then stated he would be sending a "guy and a girl over to pick up the suitcase."
Kohrherr attempted to telephone Judge Farrell at his home to obtain oral authorization to search, but received no answer. He immediately dispatched an officer to the judge's home. In the meanwhile the phone rang again. The same voice, identifying himself as "Red," said the girl had told him
there were a bunch of "cops" around. Kohrherr responded that the "cops" were involved downstairs and that everything upstairs was all right.
Two additional telephone calls were received at the apartment by Kohrherr, with the sequence of the calls not completely clear. The detective's recollection was that the third telephone call was from Judge Farrell. However, his sequence was probably in error since the judge's affidavit cites three phone conversations Kohrherr had with the unknown caller. In any event, Kohrherr received a third call from "Red" inquiring if the girl had arrived. When told "No" the caller stated he would come himself. Defendant Galvin, Jr. arrived in the apartment while the officers were awaiting authorization to search.
Judge Farrell, on the basis of the information contained in the original warrant, the detective's conversation with Rocchetti in the first-floor apartment and the telephone calls to the upstairs apartment, orally issued a warrant to search the apartment.*fn1 In the front bedroom closet a suitcase was found containing narcotics. Following the search David Galvin, Sr. appeared at the apartment. He admitted that the bedroom in which the suitcase was found was occupied by him.
The State argues that the search was valid based upon the information contained in the affidavit, that received in the execution of the initial search warrant, and on the right of the police to go to the second-floor apartment to secure it while awaiting approval of the telephone warrant. Based on exigent circumstances, they contend their actions were reasonable in order to prevent the potential destruction of vital but disposable evidence of criminality.
Defendants raise several objections, seriatim , to the police conduct. They contend, first, that the initial warrant for
the first-floor apartment was invalid because of insufficiencies in Detective Kohrherr's affidavit. They argue that there was no corroboration of the informant's tip in that Kohrherr, when he personally checked the premises at 602 Paterson Plank Road, found no apartment listed for Galvin but only to a Rocchetti to whom the informant had made no reference. In addition, defendants argue that the affidavit contained no valid statement as to the reliability of the informant. Any reference to reliability, defendants contend, was improperly considered by the issuing judge because it was based on the hearsay statement of a police officer different from the affiant. Defendants' position apparently is that Kohrherr, having no personal knowledge of the informant's reliability, could not swear to it in the affidavit. From this they urge that the entire police conduct was tainted by the illegal initial entry into the first-floor apartment on an invalid search warrant.
Secondly, defendants assert that even assuming the initial warrant lawful and proper, that warrant did not authorize entry into the second-floor apartment. Such argument is based on the ground that the error in the warrant was not merely technical in nature, but was based on incorrect information provided by the informant. Thirdly, defendants argue that the conversation with Rocchetti in the first-floor apartment did not independently give rise to a finding of probable cause for the officers to go upstairs to the top-floor apartment. Their contention is that probable cause to believe the second-floor apartment might contain evidence of crime did not exist until after Kohrherr overheard the telephone calls in that apartment. He, they state, had no valid initial right to enter the apartment in order to receive those calls. Lastly, defendants argue that there were no exigent circumstances justifying the warrantless entry into the second-floor apartment. The legality of the telephonic authorization by Judge Farrell is not questioned. State v. Cymerman , 135 N.J. Super. 591 (Law Div. 1975).
The court will address defendants contentions in the order presented. With respect to the ...