On appeal from the Superior Court of New Jersey Law Division, Morris County.
O'Brien, Havey and Conley. The opinion of the court was delivered by O'Brien, J.A.D.
Since the issue in both of these cases is the same, they are consolidated for the purpose of this opinion. In each case the State appeals from the dismissal of an indictment charging defendants with possession of a controlled dangerous substance (CDS).*fn1 We reverse.
In each case the police officers obtained a search warrant based in part upon the fruits of a search and seizure of defendants' garbage or trash bags placed outside their homes for collection.
In the Skidmore case, during the week of December 3, 1989, a citizen advised a prosecutor's office investigator of his suspicion that Dan Skidmore was distributing drugs from his residence in Dover. The suspicions were based on personal observations, i.e., the citizen observed frequent traffic to the home during the period from the summer of 1989 through December 1989. Cars would pull up in front of the home, blow their
horns, Dan Skidmore would run out, make an exchange with the occupants and then return to his home. On one occasion the citizen observed Skidmore holding a large amount of cash, although at the time the citizen believed Dan Skidmore was unemployed.
Based on this information, the investigator conducted "trash pulls" at Skidmore's residence on three occasions, December 6, December 20, and December 27, 1989. On each day the trash had been placed at curbside for pickup. Each of the three trash pulls produced evidence of drugs such as rolling papers, two marijuana seeds, a one-inch marijuana stalk, four marijuana cigarette roaches, and various other possible drug paraphernalia.
On January 3, 1990, a warrant was issued to search the residence. The Judge found that the citizen's tip together with the results of the trash pulls provided probable cause to believe that drugs and/or related items were to be found inside the residence. Upon execution of the search warrant, the CDS sought to be suppressed was seized. Dan Skidmore and William Skidmore, who also lived at that address, were indicted for possession of a small amount of cocaine.
In the Poff case, on October 4, 1989, the county prosecutor's office received information from neighbors of Poff's residence in Dover that heavy traffic had been seen going in and out at all hours of the day and night. The neighbors believed this traffic resulted from marijuana sales at that address. On October 13, 1989, information was obtained from an unknown person, who claimed to have firsthand knowledge, that the residents of the first-floor apartment at the residence were generally in possession of large amounts of marijuana and were resupplied every few days. Investigation revealed that utilities for the first-floor apartment were billed to defendant Poff.
On November 15, 18 and 29, 1989, trash pulls were conducted on the regular trash pickup day. Each trash pull produced evidence of CDS such as a zip-lock baggy containing two
partially burnt marijuana cigarettes, seeds and marijuana stems, two empty packages of E-Z Wider rolling papers, and two marijuana cigarette clips. Surveillance on November 16 and November 22, 1989, appeared to support and be consistent with a Conclusion that CDS was being distributed at the address. Based upon the initial information received, the results of the trash pulls, and the results of the surveillance, a search warrant based on probable cause was issued. The warrant was executed on December 1, 1989. Defendant was indicted for possession of more than fifty grams of marijuana and possession of more than one ounce of marijuana with intent to distribute, which had been seized when the warrant was executed.
Defendant Skidmore moved on November 19 and defendant Poff on December 24, 1990, to dismiss their indictments relying upon the decision of the New Jersey Supreme Court in State v. Hempele, 120 N.J. 182, 576 A.2d 793 (1990). After a hearing on January 25, 1991, the trial Judge granted the motions to dismiss, concluding that the decision in Hempele should be applied retroactively to all cases awaiting trial.*fn2
The Supreme Court concluded in State v. Hempele and State v. Pasanen, 120 N.J. 164, 576 A.2d 784 (1990), that the garbage or trash searches in both cases were valid under the Fourth Amendment to the United States Constitution based upon California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988). However, essentially embracing the reasoning of the Dissenting opinion in Greenwood and in disagreement with the reasoning of the ...