On appeal from the Superior Court of New Jersey, Law Division, Salem County.
King, Deighan and Bilder. The opinion of the court was delivered by King, P.J.A.D.
[201 NJSuper Page 411] In this case we granted leave to appeal, R. 2:2-4, from the order of the Law Division granting defendant's motion to suppress as evidence one-half pound of cocaine seized from defendant during a warrantless search allegedly in violation of
his State and federal constitutional rights. We disagree with the decision of the judge and conclude that in the circumstance his ruling was a mistaken exercise of discretion. We reverse and order that the motion to suppress pursuant to R. 3:5-7 be heard on the merits.
Defendant was stopped and his vehicle searched on March 23, 1984 on Route 40 in Carney's Point, Salem County. During the warrantless search slightly more than one-half pound of cocaine was seized from him. He apparently was en route from Florida to some unspecified location in New Jersey. He was charged with and indicted for possession of cocaine with intent to distribute in violation of N.J.S.A. 24:21-19(a)(1). The motion to suppress first was scheduled for October 9. The judge overscheduled his list for that day, the matter was not reached, and the motion then was rescheduled for November 9. Under our practice, defendant was entitled to an evidentiary hearing on the return day of the motion if material facts were disputed. R. 3:5-7(c).
The State's key witness was the arresting trooper. His testimony was required to sustain the State's burden of proof that the warrantless search was reasonable. State v. Valencia, 93 N.J. 126, 133 (1983). The State failed to notify him in time concerning the adjourned date of November 9 and he went on a scheduled vacation to a remote area in Maine where he could not be reached by telephone and told to return for the hearing. There is no doubt the State erred in not giving timely notice and a subpoena to the Trooper or in not arranging another date when he could be available to testify.
Defendant pressed for the suppression motion to proceed on November 9, claiming that he had been greatly inconvenienced because he had to come from Florida for that hearing. Apparently the Trooper's unavailability was not made known to defendant's lawyer in time to avoid defendant's trip from Florida by way of Boston where he went first to visit his
parents and then borrowed their car to drive to Salem for the November 9 hearing.
At that hearing, the State moved for a postponement, its first such application.*fn1 Defense counsel offered to let defendant
testify as to his version of the search and seizure if the court desired. The judge refused to hear defendant's version without first hearing the State's version. The judge said "I can either at this juncture grant your motion to suppress the evidence because the State failed to establish their burden of proof simply because there was no witness here or I can continue the matter on terms and order them to pay your client his expenses." The judge then undertook "to weigh the equities on both sides." He concluded that "the equities weighed more in favor of the defendant than . . . in favor of the State" and granted the motion to suppress in default of any available proofs from the State.
We conclude that the better course would have been to grant the State's motion for postponement, its first motion in that regard. The judge could have sanctioned the State for the demonstrable expenses defendant bore to attend the aborted hearing of November 9. See R. 1:2-4(a) (payment of costs to adverse party as a condition of adjournment); Kohns Bakery, Inc. v. Terraciano, 147 N.J. Super. 582, 584-585 (App.Div.1977). Such a sanction of out-of-pocket costs and expenses, if imposed by the judge, would have been sufficient in the circumstance. This was the State's first dereliction in the proceeding and there is no doubt the defendant's inconvenience was caused by mere ...