On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Michels, Gaynor and Arnold M. Stein. The opinion of the court was delivered by Arnold M. Stein, J.s.c. (temporarily assigned).
[222 NJSuper Page 31] Pursuant to a plea bargain, defendant entered a plea of guilty to possession of marijuana with intent to distribute, in violation of N.J.S.A. 24:21-19(a)(1). He appeals from the trial judge's denial of his motion to suppress certain evidence seized by the police during his arrest at his apartment. R. 3:5-7(d). Defendant was sentenced to a two-year probation term, to run concurrently with the probation term that he was already serving for an unrelated offense. As a condition of probation, defendant was sentenced to a 364-day county jail term, three months of which were to be served without parole eligibility.
Defendant contends that evidence seized from his apartment during the execution of an improperly issued search warrant, violated his constitutional right to be free from unreasonable searches and seizures. U.S. Const., Amend. IV; N.J. Const. (1947), Art. I, § 7. We agree and reverse, but for different reasons than those raised by defendant on this appeal.
We accept the findings of fact and conclusions of the trial judge because they are supported by credible evidence present in the record. State v. Johnson, 42 N.J. 146, 162 (1964).
On June 9, 1985, at approximately 8:30 p.m., Anthony Gonzalez appeared at the Gloucester City police department, and told Hutchinson, a patrolman, that defendant had struck him during a fight and that he wanted to sign a complaint against defendant. Hutchinson typed out a complaint-with-warrant form, charging defendant with simple assault, a violation of N.J.S.A. 2C:12-1(a)(1). Gonzalez signed the complaint and Hutchinson then brought the documents to the home of the deputy court clerk who signed the warrant between 9:00 and 9:30 p.m. Because Hutchinson was busy with other police matters during his shift, he did not execute the warrant for several hours.
At approximately 12:25 a.m., Hutchinson and Reinhart, another police officer, arrived at defendant's apartment. They knocked on the door, made the announcement, "police," and then stood to the side waiting for the door to open. Hack, a friend of defendant, opened the door. According to Hutchinson, he was able to see defendant through the open door, seated on a couch in the living room. The officers entered the apartment and Hutchinson informed defendant that he had a warrant for his arrest on the complaint charging him with assault upon Gonzalez.
When Hutchinson entered the apartment, he observed several plastic bags on the coffee table in front of defendant, containing what he identified as marijuana, methamphetamines and hashish. As he and Reinhart were handcuffing defendant, Hutchinson saw a large plastic bag at defendant's feet, containing
nine small bags, each filled with what Hutchinson recognized as marijuana.
At the hearing on the motion to suppress, defense counsel agreed that the arrest warrant was valid. On appeal, defendant now challenges its validity. He states that the arrest warrant is invalid because under R. 3:3-1, a summons rather than an arrest warrant should have issued. The improper issuance of this warrant and the seizure of evidence during its execution are the grounds for defendant's claim that his constitutional rights were violated.
Defendant's brief does not mention that this point was not raised below. R. 2:6-2(a)(1). We again restate the well-established principle that questions not raised below will ordinarily not be considered on appeal. State v. Lakomy, 126 N.J. Super. 430, 437 (App.Div.1974). Nevertheless, we consider certain questions presented by this appeal of sufficient importance to merit appellate review. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234-235 (1973). Specifically, we determine, for reasons not raised on appeal by this defendant, that this arrest warrant was issued in violation of defendant's constitutional rights. The seized evidence must be suppressed and his conviction ...