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State v. Smith

June 14, 1996


On appeal from Superior Court of New Jersey, Law Division, Union County.

Approved for Publication June 14, 1996.

Before Judges Baime, Villanueva and Bilder. The opinion of the court was delivered by Baime, J.A.D.

The opinion of the court was delivered by: Baime

The opinion of the court was delivered by BAIME, J.A.D.

Following the denial of his motion to suppress evidence, defendant pled guilty to possession of cocaine within a school zone with intent to distribute (N.J.S.A. 2C:35-7) and was sentenced to four years imprisonment. He appeals on the ground that the police violated his federal and state constitutional rights by engaging in an unlawful search and seizure. We disagree and affirm defendant's conviction.


On February 23, 1993, Detective Robert Hilongos, a highly experienced member of the Elizabeth Police Department, received a telephone call from an informant who had proven reliable in the past by providing information that had led to an arrest and conviction. The informant told the detective that a black male wearing a three-quarter length black jacket and a yellow cap was selling drugs from the lobby of a building located at 400 Irvington Avenue in Elizabeth. According to the informant, the individual was accepting orders in the lobby and retrieving the drugs from apartment 2L. The informant added that the drug seller was using a red Datsun with license number H10 33D. The gist of the conversation was that the drug transactions were taking place while the informant was talking and that the informant was actually witnessing the illegal sales.

Detective Hilongos was familiar with the housing project described by the informant, having executed several search warrants in the area. The officer described the project as a "high narcotic trafficking area." Upon their arrival, the detective and four other officers observed defendant, dressed in a three-quarter length black jacket and wearing a yellow cap, "standing . . . on the sidewalk in front of the . . . building." They also observed the automobile described by the informant parked across the street from the building.

Because the lobby was partially hidden from view and there was no safe location from which to conduct a surveillance, the police were unable to monitor defendant's movements. Instead, the officers immediately approached defendant and searched him, discovering a set of keys.

While defendant was detained, Detective Hilongos proceeded to apartment 2L. The site manager, Kathy Ryan, was notified and soon arrived at the apartment. After knocking on the door and receiving no response, the detective was approached by Andrea Smith, who lived in a nearby apartment. Smith told the officer the apartment belonged to Stacy Walker, whom she identified as her sister. According to Smith, Walker was in the hospital. This was confirmed by Patricia Wright, another neighbor, who immediately telephoned Walker. Walker, who was pregnant at the time, had been hospitalized for approximately one week due to hypertension.

The details of the telephone conversation involving Walker, Ryan and Hilongos were hotly contested at the motion hearing. Detective Hilongos could not recall whether he advised Walker of her right to refuse to consent to a search, but nevertheless claimed that Walker ultimately granted permission.

Walker testified that she became quite upset during the telephone call because she had never given defendant permission to enter her apartment and was concerned that she would be evicted because of his criminal conduct. She emphasized, however, that no one threatened to evict her, and that, in fact, Ryan disavowed any intent to take such a course. Walker related that Ryan told her the police wished to search her apartment, but that she had the right to refuse. Despite these assurances, Walker testified that she feared she would be evicted if she refused to consent. Although Detective Hilongos allegedly told Walker that the police wished to enter her apartment in order to obtain defendant's wallet, this falsehood apparently played no part in Walker's decision to grant the police permission to search. In any event, Walker conceded that she unequivocally gave the police her consent at some point during the conversation.

Both Smith and Ryan corroborated Walker's account. Ryan added that she told Walker the police would "probably" obtain a warrant if she refused to consent to the search and that she would be responsible for any damages if the officers found it necessary to break down the door to her apartment. Smith emphasized that defendant had forcibly taken from her the keys to Walker's apartment earlier in the day.

Upon obtaining Walker's consent, the police used the keys seized from defendant to gain entry to the apartment. Once inside, they conducted a search and discovered fifty-nine vials of cocaine in the door shelf of the refrigerator. Detective Hilongos then notified the ...

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