[183 NJSuper Page 124] R.B.C., a juvenile defendant, was charged under Docket J-1828-80 with two counts of illegal possession of a controlled dangerous substance (to wit, hashish and marijuana, respectively), in violation of N.J.S.A. 24:21-20(a)(4); one count of possession of marijuana with intent to distribute, in violation of N.J.S.A. 24:21-19, and one count of growing marijuana, in violation of N.J.S.A. 2A:170-25.1. The juvenile defendant now moves to suppress evidence, consisting of marijuana, hashish and drug paraphernalia seized pursuant to a search warrant issued on April 29, 1981.
The record reveals that on April 29, 1981 Officer Robert Hulitt of the Police Bureau of Millville, New Jersey, applied for a warrant to search the house in which the juvenile resides with his mother and father, his sister and his sister's boyfriend. The application was supported by Officer Hulitt's affidavit, also dated April 29, 1981. Officer Hulitt's affidavit recited the following facts as grounds to establish probable cause to search:
An investigation into the activities of [R.B.C.] by this investigator. The officer was given information in reference to subject dealing marijuana at the senior high school and the millville [ sic ] public library. Subject is a junior at Memorial Senior High School and is approx. 17 yrs. of age white male brn.hair.
The investigator started to periodic [ sic ] surveillance on his home located at [address deleted]. Subject has a lot of vehicle stop and either blow the horn or run in the upstairs of the home for short periods of time at various hours of the evening and night. The investigator re-interviewed the informant as to his knowledge and how he had obtained the same information. The informant has proven reliable in previous investigations such as Rocky Biggs inv., Battilini inv. Vineland, Garrett inv. etc.. The informant said that he had been in school with the subject. The informant then said that he had purchased marijuana from the subject through another juvenile now attending school. He said that the subject works part time at the library and with the building trade while at school. The informant said that he had purchased marijuana on two different times from [R.B.C.]. He said that along with the other subject they drove to the front of the home and blew the horn. [R.B.C.] came from a side door from upstairs and to them at the vehicle. He then would remove a leather pouch from under his shirt which contained various ounzes [ sic ]. On one of the sales the subject observed at least 20 different ounzes of marijuana. The informant said that [R.B.C.] talked freely and showed the subjects a quantity of monies of [ sic ] both occasions.
The investigator checked with another informant who said that subject had been expelled for leaving school grounds at this time. They also said that he and other subject had been found in a wooded area by instructor during building trades time. The investigator feel [ sic ] that a search warrant is evident to continue the investigation into the activity of [R.B.C.].
The investigator has several years of experience into narcotic drug investigations and training for such investigations.
The investigator noted the only means of transportation subject uses if [ sic ] a creme ford [ sic ] N.J.Reg. 560MRd registered Penny Finch Hamilton Ave. Millville, N.J.
Based on Officer Hulitt's application and affidavit, the municipal judge of Millville issued a search warrant on April 29, 1981. It was executed the following day, and an inventory of the items seized is contained in the Appendix.
After it was executed, the judge filed the warrant, inventory and all other papers connected therewith with the county clerk. R. 3:5-6. The clerk's search warrant file regarding this matter contains the application for the search warrant, consisting of Officer Hulitt's affidavit, the search warrant, the return and the complaint of juvenile delinquency. It is clear that in issuing the warrant of April 29, 1981 the judge relied on the April 29, 1981 affidavit of Officer Hulitt.
The juvenile defendant argues that the April 29 affidavit in support of the search warrant was fatally defective in that it contained neither the dates nor times when any allegedly unlawful acts were observed at the juvenile defendant's home by informants or the police, nor the dates of any surveillance to corroborate same. The argument posits that the affidavit in question does not indicate when any of the alleged drug deals took place, or when any persons were seen going to the juvenile defendant's home or even who was seen inside the home. Special emphasis is placed upon the fact that four other persons were residing in the home, in addition to the juvenile defendant.
In order to determine if probable cause to believe the law is being violated exists at the time the search warrant is issued, Sgro v. United States , 287 U.S. 206, 53 S. Ct. 138, 77 L. Ed. 260, (1932), defendant cites State v. Blaurock , 143 N.J. Super. 476, 479 (App.Div.1976), for the proposition that one of the elements the court must consider is the lapse of time between the occurrence of the facts relied upon in the affidavit and the date the search warrant is issued. The juvenile defendant establishes that the Blaurock court held that 18 days between the issuance of a search warrant and the last reported surveillance of the defendant's apartment was not too remote in time to negate the conclusion that there was marijuana in the defendant's apartment at the time the warrant was issued. However, defendant herein cites State v. Sager , 169 N.J. Super. 38, 45 (Law Div.1979), to indicate that a lapse of 65 days between the affidavit and the issuance of the warrant was found to be too remote and would not justify the issuance of a search warrant. The affidavits in
Blaurock and Sager contained dates and time of surveillance of the premises to be searched which would have led the issuing judge to conclude reasonably that illegal drugs were present on those respective premises on the dates that the search warrants were issued. The juvenile defendant herein argues that the issuing municipal judge had no facts before him which would have indicated that the allegedly illegal activity at the juvenile defendant's home was still ongoing at the time the search warrant was issued. The juvenile defendant proposes that the absence of dates in the affidavit in the case at bar supports the probability that the alleged illegal activity could have occurred months or even years before the warrant was issued from the information that appears in the affidavit.
The State argues in opposition that, even if the information relied on to issue the warrant was more remote than it should be, that flaw must be counterbalanced by a consideration of the continuing nature of the illegal activity. The State demonstrates that the Blaurock court cited with approval United States v. Johnson , 461 F.2d 285 (10 Cir. 1972), which noted that counting the number of days between the occurrence of the facts relied upon and the issuance of the warrant cannot alone determine the vitality of the probable cause and the validity of the warrant. Concurrent with the time element, the nature of the unlawful activity must be taken into consideration. Secondly, the State argues that as the United States Supreme Court in Michigan v. Defillippo , 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979), believed that an exclusionary rule which suppressed evidence seized pursuant to an invalid ordinance was too broad, the same result should be reached when the validity of a warrant is being challenged.
U.S.Const. , Amend. IV, and N.J.Const. (1947), Art. I, par. 7, provide that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing ...