On appeal from Superior Court, Law Division, Union County.
Fritz, Kole and Lane. The opinion of the court was delivered by Kole, J.A.D.
Initially charged with murder while armed and possession of a controlled dangerous substance, in accordance with a plea agreement defendant pleaded guilty to manslaughter of Raoul Coleman and possession of over 25 grams of marijuana. That agreement contemplated that defendant would be sentenced to a term not exceeding 10 years for manslaughter, that the sentence for the marijuana offense would be concurrent with that for manslaughter and that it be recommended that the sentences be served at the Youth Correctional Institution Complex. The trial judge imposed concurrent terms in State Prison of 5 to 10 years for manslaughter and 2 to 4 years for possession of marijuana, with a recommendation that the terms be served at the Youth Complex. Defendant's motion for reconsideration of the sentences was denied. Prior to entry of his pleas, defendant's motion to suppress evidence had been denied. Defendant appeals.
The following contentions are raised on this appeal. (1) The court erred in denying defendant's motion to suppress evidence: (a) the warrantless search of defendant's wife, Dorothy Meighan, was unconstitutional and (b) by failing to investigate the circumstances relating to the issuance of the search warrant for defendant's home, the court improperly upheld the search pursuant
to the warrant. (2) The court erred in sentencing defendant and in refusing to modify the sentence imposed.
From the plea proceedings the facts that follow support the manslaughter charge: On July 29, 1977 defendant's brother Bert came home in a battered condition. He told defendant that he had been beaten by Raoul Coleman (Raoul) and Mark Robinson (Mark). Apparently a breaking and entering had taken place and Bert was blamed for selling some of the stolen goods. Defendant then spoke with the larceny victim, Carter, who stated that he only wanted his property back but that Mark and Raoul had blamed Bert for the theft. On July 30, 1977 defendant spoke with Raoul, who mentioned that a fight with Bert had taken place. Raoul denied stealing anything. Defendant again met Raoul and Mark and asked them if they had spoken with Bert to settle the dispute amicably. Raoul answered in the negative and indicated that if there were any more trouble, he would get a gun. Defendant decided to "exercise due caution in circumspection of the matter." On Sunday, July 31, 1977, defendant was with Bert but armed himself with a revolver as a precaution. On their way home from shooting billiards defendant suggested that they stop to see Raoul and settle the matter peacefully. They drove to Raoul's neighborhood and met Raoul's cousin Tillman. Tillman informed them that Raoul was around the corner. Defendant went with Tillman around the corner, but as Tillman suddenly dropped back, defendant saw several silhouettes appearing to be those of Raoul and Mark. Upon observing gun flashes coming from the silhouettes, defendant retreated to the car, opened the door, retrieved his revolver and fired two shots at the ground. The shots were only intended as a warning to let everybody know that he was armed and to enable defendant to get out of the area safely. However, Raoul Coleman died as a result. Defendant then entered the car and Bert drove home. Two bullets were removed from decedent's body, one of them fired from a .38-calibre Rome revolver, the same type obviously possessed by defendant at the time of his arrest.
It is clear that the judge's determination on the motion to suppress was predicated on the evidence that follows, which he deemed credible. The evidence was adduced at the hearing on the motion to suppress. We likewise consider such proofs to be credible and are satisfied that they are sufficient to support that determination.
Armed with a warrant for defendant's arrest, at about 4:30 a.m. on August 1, 1977 police officers Mattis, Laukitis, Pogue and Curry and Union County Prosecutor's Investigator McCormack went to 31 Johnson Avenue, Cranford, defendant's residence. They did not expect to find defendant at home. Rather, they assumed that he would be hiding from Raoul's family. The visit to the house was a routine exercise to make certain that defendant was not at home. Defendant was the only suspect with a known address.
The officers knocked on the door and defendant's wife Dorothy answered. In response to the officers' questions, she told them that defendant was in the bathroom. The police ordered defendant from the bathroom. He complied and was placed under arrest, handcuffed and advised of his "rights." The officers asked Dorothy whether they could search the house but she and defendant refused to allow a search. Defendant demanded to be escorted from the house. Dorothy grew belligerent and joined her husband's demand that the police leave the house immediately. She also indicated to at least one officer that were they to remain in the house, she wanted to leave with her children.
Investigator McCormack, realizing that the police did not have a search warrant, requested that defendant and Dorothy remain in the house until he attempted to speak by radio to an assistant prosecutor to obtain a verbal search warrant. Laukitis and Pogue were ordered not to allow anyone to leave pending the endeavor to obtain the warrant. The police wanted to maintain the status quo until obtaining legal advice on their right to remain and search the house, and the proper procedures to be followed in this respect. McCormack, Curry and Mattis left the
house and went to the car to obtain a verbal search warrant. At that time Dorothy was not believed by the police to be under arrest since she was not a suspect in the shooting. She was not permitted, however, to leave her house unless subjecting herself to a search. The police did not want her removing anything from the house until a warrant had been obtained. They reasonably suspected that the gun involved in the killing might be in the house and that she might try to conceal and remove it if permitted to leave. Dorothy was not searched initially because she was dressed in a nightgown under which nothing could have been hidden.
While McCormack, Curry and Mattis were near the patrol car trying to obtain a search warrant, they observed Dorothy leaving the house with a large bundle wrapped in a white bedspread. She was apparently agitated, shouting that she was going to remove her child from the house and that she did not want the child coming into contact with the police. Curry and Mattis came to the conclusion that she was concealing evidence in the bundle, notwithstanding the fact that she carried it as if it contained a child. Mattis asked Pogue, who was inside the house, if the bundle had been searched. He replied in the negative. Mattis believed that the bundle might contain a gun since it was unlikely that someone would take an infant from the home and bring it to another house at that time of the morning. Mattis shouted for Dorothy to stop but she began to run.
McCormack then followed Dorothy in a patrol car, intending to convince her to return to the house voluntarily. The officers did not object to Dorothy leaving her house. They only wanted to keep any packages or bundles from leaving with her.
When McCormack caught up with Dorothy, she was on the porch of a neighbor's property, 51 Johnson Avenue. McCormack left the car and told Dorothy that he would like to talk to her. She then began to cry hysterically. She said that she did not want to talk to the police and demanded that they leave her alone. She told McCormack that they were on someone's property,
and he could not touch her. When she began ringing the door bell, McCormack put his hand on her elbow, saying that he just wanted to talk to her and that she should not get excited. McCormack wanted to stop her from ringing the door bell, banging on the door and shouting, since it was very early in the morning, and he did not want her rousing the neighborhood.
After McCormack touched her Dorothy fell to her knees, although holding onto her bundle, and screamed at the top of her lungs. The door opened, revealing two men in the doorway. In their presence Dorothy shouted to McCormack demanding that he unhand her. She bit McCormack on the left wrist. After McCormack placed her under arrest she tried to push her bundle towards the door. Mattis, who had just arrived, observed that the bundle contained an infant about two years old, who was picked up by one of the occupants of 51 Johnson Avenue and brought into the house as McCormack escorted Dorothy down the steps to the patrol car. The bundle remained in the doorway until one of the occupants of the house who was standing there picked it up. After Mattis explained the situation to that person, the latter handed over the bundle. A search of the bundle revealed a .38-calibre Rome revolver, ammunition, a gun-cleaning kit and a holster. Mattis then reported to McCormack, announcing, "we got everything."
A search warrant for the defendant's home and car was eventually obtained from a magistrate upon the affidavit of Mattis and executed on the same day as Dorothy's warrantless search. Among other things, the marijuana was found during the warrant search.
Over the State's objection the trial judge decided that as a matter of substantial justice and fair play defendant had standing to move for suppression of evidence found on his wife. He also held that the warrantless search of defendant's wife Dorothy was not unreasonable and constituted a common sense approach to the matter by the police in the ...