John P. Walsh, Jr., J.s.c.
[166 NJSuper Page 211] This is an amplification of an oral opinion delivered by the court at the hearing held
on defendant's motion to suppress evidence seized by the State in a warrantless search pursuant to R. 3:5-7. Prior to the hearing the court reviewed the State's brief, including a statement of facts. Defendant's answering brief contained a counter-statement of facts consisting solely of the assertion that the warrantless search was illegal. After defendant refused to expand his counter-statement of facts, the court ruled that no testimony should be taken, and decided the motion on the briefs supplemented by oral argument. The novel issue raised herein is whether defendant's allegation that the search was illegal is sufficient to give rise to a material factual dispute requiring the court to take oral testimony under R. 3:5-7(c).
Briefly, after reviewing the State's statement of facts, the court found that on May 15, 1978, at about 11 P.M., two black males held up the Quick-Mart Service Station on Route 22 in Scotch Plains, New Jersey. At that time Detective Sicola of the Scotch Plains Police Department happened upon the hold-up and thereafter pursued the suspects at speeds in excess of 60 m.p.h., until the hold-up men lost control of their automobile and fled on foot, at which time defendant was apprehended.
During his subsequent investigation Detective Sicola returned to the service station office and seized two packs of cigarettes, which had been left on the counter by the suspects. On May 16, 1978, at 5 A.M., Detective Sicola, accompanied by Detective Milton, returned to the area where defendant had been apprehended and recovered in the shrubbery $114 in cash and a black pistol with white handle. Since the cigarettes, money and gun had obviously been discarded, no Fourth Amendment right was involved. See State v. Brown , 132 N.J. Super. 180 (App. Div. 1975).
At Scotch Plains police headquarters defendant Hewins' clothing was seized as evidence because it corresponded to the description of the gunman's clothing given by the victims and Detective Sicola. After ruling that there was probable cause to arrest the defendant, this court concluded that
the seizure of defendant's clothing was permissible under U.S. v. Edwards , 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974), and rejected defendant's motion to suppress.
The necessity for this opinion arose because of defendant's refusal to expand his counterstatement of facts, and his insistence that the State produce witnesses to prove the validity of the search and seizure. It is clear that under the rules and case law, if there is a dispute of material fact, the law requires the trial court to take testimony to resolve the dispute and decide the motion.*fn1
R. 3:5-7(b) in pertinent part provides:
(b) Briefs * * * 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 counterstatement of facts no later than 3 days before the hearing.
Once the briefs, including the necessary statements of facts, are filed, ...