On appeal from Superior Court of New Jersey, Law Division, Union County.
J. H. Coleman and Bachman, J.s.c., t/a. The opinion of the court was delivered by J. H. Coleman, J.A.D.
[195 NJSuper Page 51] The crucial question raised by this appeal is whether the failure of the police to obtain an anticipatory warrant to search an automobile occupied by defendants constitutes an unreasonable search and seizure. Several items containing heroin and marijuana were seized from the automobile. Both defendants
were indicted for possession of heroin contrary to N.J.S.A. 24:21-20a.(1). The trial judge granted defendant's motion to suppress the evidence seized from the interior of the automobile. We granted the State leave to appeal. We now reverse.
The facts pertinent to our decision are not in serious dispute. During the beginning of November, 1981, the Elizabeth Police Department conducted a drug investigation known as Operation Optometrist. The investigation focused on an area generally described as First and Marshall Streets. Reliable informants advised the police that narcotics dealers would drive to New York a couple of times a day to purchase heroin. The informants indicated that a variety of automobiles and drivers were used to go to New York to pick up the heroin; the female in the car would hold the drugs. On November 4, 1981, the police surveillance revealed that two men and a woman left the First and Marshall Street area by car. The informant advised that when they returned they illegally possessed drugs purchased in New York.
On November 5, 1981, the police observed a suspicious Pontiac in the targeted area. The suspicion was aroused by the prior day's activities. They followed that automobile into New York City and observed it park at Amsterdam Avenue and 121st Street. When that automobile reentered Elizabeth, it was stopped and found to contain illegal drugs.
On November 7, 1981, the police conducted a surveillance of the same area. They observed a blue Le Baron containing a male and female leave the area. At approximately 10:30 a.m., Sgt. Kelly and Sgt. Benovitch followed that automobile from First and Marshall Streets onto Routes 1 and 9 north to the city line. The Le Baron proceeded north on Routes 1 and 9 as if it headed for New York City. Sgt. Kelly then returned to Police Headquarters to prepare a team of officers to arrest and search the suspects upon their return to the First and Marshall Street area. Upon Sgt. Kelly's return to Police Headquarters at about 10:45 a.m., he made numerous phone calls. Sgt. Benovitch also
went to headquarters, but shortly thereafter he returned to the targeted area to continue working with his informants. As a result of Sgt. Kelly's phone calls, Det. Aspra and Det. Brojanowski responded to Police Headquarters at approximately 11:15-11:30 a.m. They were sent to the Holiday Inn on Route 1 south to conduct a surveillance for the blue Le Baron on its return from New York City. Sgt. Kelly was not able to contact Ptl. Wood and Ptl. McGuire until about 11:30 a.m. Ptl. Wood had to locate a babysitter before he could respond to headquarters. He and Ptl. McGuire reported to headquarters at approximately 12:30 p.m.
Shortly after Patrolmen Wood and McGuire arrived at headquarters, Sgt. Kelly received a radio dispatch that the blue Le Baron occupied by defendants had passed the Holiday Inn checkpoint. Sgt. Kelly then entered a marked patrol car with Patrolmen Wood and McGuire. They proceeded to Fairmont and Jackson Avenues where defendants were stopped at approximately 1:00 p.m. with the assistance of Detectives Aspra and Brojanowski. The Le Baron was therefore away from the City of Elizabeth approximately two to two and one-half hours.
Defendants were ordered to exit from the vehicle. They were placed alongside the passenger side of the vehicle. Patrolmen Wood and McGuire conducted a search of the vehicle. As soon as Ptl. McGuire seized three nickel bags of marijuana from the interior of the vehicle defendants were placed under arrest. Three bags of suspected heroin were also seized from the purse of defendant Bell. Her purse was found either on or under the front seat. A manila envelope suspected of containing a controlled dangerous substance was seized from the glove box. Defendant Bell testified that when she was stopped an officer pointed a gun at her and said "don't move."
The trial judge suppressed the evidence finding that the period of one and one-half to one and three-quarter hours was adequate time for the officers to obtain a search warrant. She placed ...