On appeal from the Superior Court, Law Division, Ocean County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Matthews, P.J.A.D.
Defendant and a codefendant were charged in an Ocean County indictment with unlawful possession of methamphetamine and phenyl-2-propanone, contrary to N.J.S.A. 24:21-20a(1) (Count One); the unlawful manufacture of methamphetamine, contrary to N.J.S.A. 24:21-19a(1) (Count Two), and unlawful possession of methamphetamine and phenyl-2-propanone with intent to distribute, contrary to N.J.S.A. 24:21-19a(1) (Count Three).
Defendant moved to suppress certain evidence and that motion was denied. Thereafter, defendant entered a guilty plea to Count Two of the indictment under a plea arrangement in which the State agreed to dismiss Counts One and Three. Defendant reserved his right to appeal under R. 3:5-7(d). He was sentenced to a five year term of imprisonment, a $5,000 fine, and assessed a penalty of $25 payable to the Violent Crime Compensation Board.
At approximately 1:20 a.m. on September 13, 1981, Detective Sergeant Haines and Lieutenant Lennon of the Little Egg Harbor Township Police Department responded to a report of a burglary and theft in progress at 321 Mathis Drive in Little Egg Harbor. Upon arriving at the scene, a neighbor informed Detective Haines that he had observed two people leave the back door of the house and run into the woods. Detective Haines inspected the premises by flashlight and observed that the glass in the kitchen door was broken. He also observed what appeared to him to be a chemical laboratory. Although he did not have any first-hand experience in the seizure of "speed labs," he indicated that the facilities in defendant's kitchen resembled photographs of such labs used in his drug enforcement training.
Both officers observed a container of acid, vials, plastic and rubber tubing and an unidentifiable odor in the kitchen. Although the house appeared to be unoccupied, the lights were on, as was a radio.
The municipal court judge was provided with the foregoing information by telephone at 1:50 a.m. that same night. He then issued a telephone warrant after ascertaining that the applicant's conclusions were based on his experience which included his observations and training.
The information upon which the municipal court judge relied was presented at the suppression hearing in the form of a transcript of the telephone conversation between Officer Haines and the municipal court judge. Although Officer Haines refers to himself as "the affiant," there is no indication in the verbatim transcript that he was ever sworn. The State conceded that fact at oral argument.
Pursuant to the search warrant, police entered 321 Mathis Drive shortly after 2 a.m. While there, they confiscated various pieces of laboratory equipment and chemicals. It was also ascertained that the premises were owned by defendant and another individual. In furtherance of the investigation, and based upon the evidence seized in the house, additional warrants were obtained on the same evening for defendant's place of business, his automobile and bank accounts on subsequent days.
Later that same morning defendant was arrested as he entered Great Bay Pharmacy in Little Egg Harbor Township. Defendant is a registered pharmacist.
At the conclusion of the suppression hearing, the Law Division judge found adequate probable cause for the issuance of the warrant. He reserved decision as to the significance of the late filing of the inventory and warrant with the county clerk.
Thereafter, the judge issued a letter opinion finding probable cause for issuance of the warrant based on the telephone request, finding defendants incurred no prejudice by the late filing of the warrant, affidavit, and inventory, and denying defendants' motion to suppress the evidence. That opinion was supplemented by another letter opinion in which the judge found that the apparent forced entry of an unoccupied house
coupled with the lateness of the hour and the attendant discovery of the chemical laboratory constituted exigent circumstances to justify the issuance of the telephone warrant.
Defendant contends that the facts set forth before the municipal court judge, as recorded verbatim, fail to demonstrate probable cause to enter his premises, search and seize a chemical laboratory ...