On appeal from Superior Court, Law Division, Essex County.
Pressler, Muir, Jr. and Kestin. The opinion of the court was delivered by Pressler, P.J.A.D.
[265 NJSuper Page 570] Following the denial of his motion to suppress, defendant Richard Ulrich was tried and found guilty by a jury of a charge of second-degree possession of over five pounds of marijuana with intent to distribute, N.J.S.A. 2C:35-5b(10), and of a related fourth-degree charge of possession of over fifty grams of marijuana, N.J.S.A. 2C:35-10a(3). He was sentenced to a seven-year term of imprisonment on the second-degree conviction, with which the fourth-degree conviction was merged.
In challenging the judgment of conviction, defendant first contends that the trial Judge erred in denying his suppression motion. Our review of the record satisfies us that the forced entry into his home and the ensuing warrantless arrest and search violated defendant's Fourth Amendment rights.
The relevant facts developed at the suppression hearing are not in substantial dispute. In August 1988, Detective Rinaldi of the Narcotics Bureau of the Essex County Sheriff's Office was advised by a federal postal inspector in Newark that the postal authorities had custody of an express mail package suspected of containing contraband addressed to defendant at his Irvington address. It had already been determined that the return address in Arizona was fictitious. The federal inspector asked Rinaldi for assistance in verifying the suspected contents of the package by use of one of the Narcotics Bureau's trained dogs. Rinaldi, accompanied by a canine handler and his trained dog, complied. The dog's behavior on sniffing the package confirmed the suspiciousness of the contents, and the federal authorities immediately obtained a search warrant from a United States Magistrate permitting the opening and inspection of the package. The package was opened by the federal inspector and Rinaldi. A field test then performed confirmed that it contained marijuana. Some thirteen pounds of the substance were packed in a box of approximately fourteen inches in each dimension. Rinaldi and the postal inspector then resealed the package and planned a controlled delivery to the addressee.
The first delivery was attempted on a Friday evening. A postal inspector driving a regular mail truck rang the doorbell of the address on the package, a one or two family residence. Rinaldi was in an unmarked vehicle parked several houses away watching the proceedings through binoculars. There was no answer at the door, and both vehicles left. They returned for a second attempt at 8:00 a.m. Saturday morning. This time defendant opened the door, and Rinaldi, through his binoculars, observed defendant sign the postal receipt form and accept the package. The post office vehicle left, and a group of both marked and unmarked police cars,
alerted by Rinaldi, arrived at the house within the next five or ten minutes. Rinaldi rang the doorbell and announced his identity as a police officer. Obtaining no response to repeated attempts to gain entry in that manner, the officers broke down the front door, and eight or nine policemen entered the house with their handguns drawn. They found the package, which had been opened, on a table in the living room. The sole occupants of the premises were defendant and his wife, who were in bed. They were arrested, and defendant's signature on a consent to search form was procured. The search yielded an empty box of the same type as the delivered package and a scale.
At the suppression hearing Detective Rinaldi explained his decision to have proceeded without either an arrest or search warrant. He believed that there was insufficient probable cause to support a warrant until the package had been accepted by the addressee. He also believed that there was insufficient time to obtain a warrant after the delivery because "knowing there was CDS going into that location, and announcing ourselves as police officers numerous times, not getting a response, we feared there might be the destruction of evidence at that point." It is undisputed that the officers had not set up any surveillance of the premises after the delivery was effected, that they had not alerted any municipal or Superior Court Judge of the prospective need for a warrant, and that they did not seek a telephonic warrant.
Our review of the record convinces us that the warrantless entry, arrest and seizure were unlawful. As the Supreme Court reaffirmed in State v. Hutchins, 116 N.J. 457, 463, 561 A.2d 1142 (1989),
We have no doubt that there was probable cause to arrest once defendant had accepted delivery of the package and exercised control over it. Compare State v. Richards, 155 N.J. Super. 106,
382 A.2d 407 (App.Div.), certif. denied, 77 N.J. 478, 391 A.2d 493 (1978) (defendant held entitled to judgment of acquittal where the State failed to prove his knowledge of the controlled delivery of a package containing contraband to his home during his absence). But the second prong of the test which must be met in order to justify the warrantless intrusion into a residence is the existence of exigent circumstances making ...