On appeal from Superior Court, Law Division, Union County.
Pressler, Gaulkin and Baime. The opinion of the court was delivered by Baime, J.A.D.
Following the denial of his motion to suppress evidence, defendant entered a retraxit plea of guilty to possession of cocaine (N.J.S.A. 24:21-20a(1)). The trial judge imposed a probationary term of two years and fined defendant $250. In addition, defendant was assessed a penalty of $25 payable to the Violent Crimes Compensation Board. The sole argument advanced on appeal is that a warrant authorizing the search of the entire house in which defendant resided was unconstitutionally broad. We disagree and affirm.
The affidavit upon which the search warrant was issued was prepared by Detective George L. Arroyo, a highly experienced member of the narcotics bureau of the New Jersey State Police. The affidavit recited the following facts. Detective Arroyo received information from a confidential informant, who had proved reliable in the past, that drugs were being distributed from a house located at 674 Hamilton Street in the City of Rahway. Based upon the receipt of this information, the police established a surveillance of the premises during which they observed the informant conduct a drug transaction with an individual identified as Jeffrey Till. According to Detective Arroyo, the informant entered the house and emerged shortly thereafter with approximately one gram of cocaine. Ten days later, the detective, while acting undercover, entered the premises and purchased additional drugs from Till. Further investigation revealed that the house was owned by Florence M. Sheehan. Although the affidavit is devoid of any statement disclosing whether the premises constituted a single or multi-family
dwelling, a fair reading of the detailed description contained therein supports the thesis that the house was a single-family residence. In any event, based upon his experience Detective Arroyo concluded that controlled dangerous substances and various types of drug paraphernalia could be found in the house.
Predicated upon these facts, a Superior Court judge issued a warrant authorizing the search of the entire premises. During the ensuing search, the police confiscated cocaine and other drugs from Till's bedroom, a bedroom occupied by defendant and the kitchen.
Following his indictment, defendant filed a motion to suppress evidence pursuant to R. 3:5-7. The trial judge granted defendant's request for an evidentiary hearing to present facts which were allegedly omitted from the affidavit. At the hearing, Detective Arroyo amplified the affidavit by testifying that the house in which the drug purchases took place was a single-family, two-story residence with entranceways in the front and back. The second floor consisted of three bedrooms and a bathroom separated by a narrow hallway. According to the detective, both drug transactions had occurred in a bedroom occupied by Till. Detective Arroyo testified that Till kept the illicit drugs in a nightstand immediately adjacent to his bed. The doors to the other two bedrooms were open both when the detective purchased the cocaine and when he entered the premises to execute the search warrant. According to Detective Arroyo, he did not know that the other two bedrooms were occupied until the day of the search. At that time, the detective first became aware of the fact that defendant and his sister resided in the house along with Till and that each had a separate bedroom.
In denying defendant's motion to suppress, the trial judge determined that the facts recited in the affidavit were sufficient to establish probable cause to search the entire house. The judge rejected the argument that the warrant was overly broad
and that the search should have been confined to Till's bedroom. The fact that the drug purchases had occurred in the bedroom occupied by Till was found to be immaterial. The judge concluded that it was not incumbent upon Detective Arroyo to set forth these facts in his affidavit.
Before turning our attention to the merits of the arguments advanced, we are constrained to note certain procedural problems which, although not raised directly by the parties, cause us considerable concern. Specifically, we question whether defendant should have been permitted to challenge the legal efficacy of the search warrant based upon information known to the ...