State v. Bell

• Decision Date: 11 April 1984
• Citation: 195 N.J.Super. 49,477 A.2d 1272
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Willie Faye BELL and Richard Williams, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 49

195 N.J.Super. 49

477 A.2d 1272

STATE of New Jersey, Plaintiff-Appellant, v. Willie Faye BELL and Richard Williams, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 8, 1984.

Decided April 11, 1984.

Brian D. Gillet, Asst. Prosecutor, for plaintiff-appellant (John H. Stamler, Prosecutor of Union County, attorney; Anthony Martinez, Asst. Prosecutor, of counsel, and on the brief)

James Jukes, Asst. Deputy Public Defender, for defendant-respondent Willie Faye Bell (Joseph H. Rodriguez, Public Defender, attorney; Edward Kopelson, Asst. Deputy Public Defender, of counsel, and on the brief).

Anthony D. Rinaldo, Jr., Elizabeth, for defendant-respondent Richard Williams (Rinaldo & Rinaldo, Elizabeth, attorneys; Anthony D. Rinaldo, Jr., Elizabeth, of counsel, and on the brief).

Before Judges J.H. COLEMAN and BACHMAN, J.S.C., t/a.

The opinion of the court was delivered by

J.H. COLEMAN, J.A.D.

The crucial question raised by this appeal is whether the failure of the police to obtain an anticipatory warrant to search an automobile occupied by defendants constitutes an unreasonable search and seizure. Several items containing heroin and marijuana were seized from the automobile. Both defendants The facts pertinent to our decision are not in serious dispute. During the beginning of November, 1981, the Elizabeth Police Department conducted a drug investigation known as Operation Optometrist. The investigation focused on an area generally described as First and Marshall Streets. Reliable informants advised the police that narcotics dealers would drive to New York a couple of times a day to purchase heroin. The informants indicated that a variety of automobiles and drivers were used to go to New York to pick up the heroin; the female in the car would hold the drugs. On November 4, 1981, the police surveillance revealed that two men and a woman left the First and Marshall Street area by car. The informant advised that when they returned they illegally possessed drugs purchased in New York.

were indicted for possession of heroin contrary to N.J.S.A. 24:21-20a. (1). The trial judge granted defendant's motion to suppress the evidence seized from the interior of the automobile. [477 A.2d 1274] We granted the State leave to appeal. We now reverse.

On November 5, 1981, the police observed a suspicious Pontiac in the targeted area. The suspicion was aroused by the prior day's activities. They followed that automobile into New York City and observed it park at Amsterdam Avenue and 121st Street. When that automobile reentered Elizabeth, it was stopped and found to contain illegal drugs.

On November 7, 1981, the police conducted a surveillance of the same area. They observed a blue Le Baron containing a male and female leave the area. At approximately 10:30 a.m., Sgt. Kelly and Sgt. Benovitch followed that automobile from First and Marshall Streets onto Routes 1 and 9 north to the city line. The Le Baron proceeded north on Routes 1 and 9 as if it headed for New York City. Sgt. Kelly then returned to Police Headquarters to prepare a team of officers to arrest and search the suspects upon their return to the First and Marshall Street area. Upon Sgt. Kelly's return to Police Headquarters at about 10:45 a.m., he made numerous phone calls. Sgt. Benovitch also Shortly after Patrolmen Wood and McGuire arrived at headquarters, Sgt. Kelly received a radio dispatch that the blue Le Baron occupied by defendants had passed the Holiday Inn checkpoint. Sgt. Kelly then entered a marked patrol car with Patrolmen Wood and McGuire. They proceeded to Fairmont and Jackson Avenues where defendants were stopped at approximately 1:00 p.m. with the assistance of Detectives Aspra and Brojanowski. The Le Baron was therefore away from the City of Elizabeth approximately two to two and one-half hours.

went to headquarters, but shortly thereafter he returned to the targeted area to continue working with his informants. As a result of Sgt. Kelly's phone calls, Det. Aspra and Det. Brojanowski responded to Police Headquarters at approximately 11:15-11:30 a.m. They were sent to the Holiday Inn on Route 1 south to conduct a surveillance for the blue Le Baron on its return from New York City. Sgt. Kelly was not able to contact Ptl. Wood and Ptl. McGuire until about 11:30 a.m. Ptl. Wood had to locate a babysitter before he could respond to headquarters. He and Ptl. McGuire reported to headquarters at approximately 12:30 p.m.

Defendants were ordered to exit from the vehicle. They were placed alongside the passenger side of the vehicle. Patrolmen Wood and McGuire conducted a search of the vehicle. As soon as Ptl. McGuire seized three nickel bags of marijuana from the interior of the vehicle defendants were placed under arrest. Three bags of suspected heroin were also seized from the purse of defendant Bell. Her purse was found either on or under the front seat. A manila envelope suspected of containing a controlled dangerous substance was seized from the glove box. Defendant Bell testified that when she was stopped an officer pointed a gun at her and said "don't move."

The trial judge suppressed the evidence finding that the period of one and one-half to one and three-quarter hours was adequate time for the officers to obtain a search warrant. She placed substantial reliance on the fact that a search warrant

was issued at approximately three o'clock [477 A.2d 1275] that day for Mr. B's Tavern as a result of the same investigation. She found there was probable cause for the issuance of a search warrant when the Le Baron left Elizabeth and proceeded toward New York City. She found that the failure to obtain a warrant made the search and seizure unreasonable. Substantial reliance was placed on State v. Marsh, 162 N.J.Super. 290, 392 A.2d 672 (Law Div.1978), aff'd sub nom. State v. Williams, 168 N.J.Super. 352, 403 A.2d 28 (App.Div.1979).

ANTICIPATORY WARRANTS

The trial judge recognized that probable cause did not suggest that defendants were in possession of contraband or evidence at the time they left the City of Elizabeth. She nonetheless concluded that probable cause existed to believe that when defendants returned from New York, they would be illegally possessing drugs. The information from the informants was sufficiently corroborated by the surveillances to establish the trustworthiness of the informants. We are satisfied that the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) has been satisfied as well as the "totality of circumstances" in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, 550 (1983). Hence the conclusion that probable cause was established is supported by sufficient credible evidence; we find no reason to disturb that finding. State v. Johnson, 42 N.J. 146, 199 A.2d 809 (1964).

As previously noted, the defendants were not expected to possess drugs until they returned to Elizabeth from New York City. As such, any search warrant which might have issued would have been based not on present probable cause, but on probable cause that evidence of criminal conduct could be found at a specified future time. This court has previously held that "[t]here is no particular constitutional infirmity in the mere fact that a warrant is sought to search for contraband which has not as yet reached the destination described therein." State v. Mier, 147 N.J.Super. 17, 20, 370 A.2d 515 (App.Div.1977). The question then becomes whether such an anticipatory warrant was required prior to the search in this case. We think not.

It is regarded as both permissible and desirable to obtain anticipatory warrants when time permits. See, e.g., United States ex rel. Beal v. Skaff, 418 F.2d 430 (7th Cir.1969); Johnson v. State, 617 P.2d 1117 (Alaska Sup.Ct.1980); Alvidres v. Superior Court, 12 Cal.App.3d 575, 90 Cal.Rptr. 682 (Ct.App.1970); Commonwealth v. Soares, 384 Mass. 149, 424 N.E.2d 221 (Mass.Supr.Jud.Ct.1981); People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614 (Ct.App.1972); State v. Mier, supra. See generally 1 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.7(c) (1978 & Supp.1984). However, it has been well established that there is no requirement that the Government obtains a warrant at the first moment probable cause exists. Cardwell v. Lewis, 417 U.S. 583, 595, 94 S.Ct. 2464, 2471, 41 L.Ed.2d 325 (1974). The touchstone for determining the constitutionality of warrantless searches is one of reasonableness under the circumstances. Delaware v. Prouse, 440 U.S. 648, 653-655, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979); State v. Bruzzese, 94 N.J. 210, 216-217, 463 A.2d 320 (1983).

In ruling to suppress the evidence seized, the trial judge relied on State v. Marsh, supra. We find that the court's reliance on this case was misplaced. In Marsh, the anticipatory warrant problem was not at issue since there was probable cause to believe that the evidence was in defendant's van for at least two and one-half hours prior to the time that alleged exigent circumstances led to the warrantless search. As such, the question in Marsh was simply whether the warrantless search could be upheld where the police had at least two and one-half hours to obtain a warrant based on present probable cause. By contrast, in the present case there was no present probable cause until minutes before the search, when the blue Le Baron was sighted driving back into Elizabeth from New York City. Hence, we find Marsh is not controlling.

In State v. Patterson, 192 Neb. 308, 220 N.W.2d 235 (1974), it was held that an anticipatory warrant was not required because the police were justified in waiting until the drugs were on the premises before conducting the search. At that point exigent circumstances justified the search without a warrant. What the court said there has some...