State v. Gaines

• Decision Date: 08 July 1975
• Citation: 343 A.2d 118,135 N.J.Super. 240
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Herbert GAINES, Jr., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 240

135 N.J.Super. 240

343 A.2d 118

STATE of New Jersey, Plaintiff-Respondent, v. Herbert GAINES, Jr., Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 6, 1975.

Decided July 8, 1975.

Stanely C. Van Ness, Public Defender, for defendant-appellant (Jasper J. Jackson, Asst. Deputy Public Defender, of counsel and on the brief).

William F. Hyland, Atty. Gen., for plaintiff-respondent (Joseph J. Rodgers, Deputy Atty. Gen., of counsel and on the brief).

Before Judges MICHELS, MORGAN and MILMED.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Defendant and six others were charged with possession of a controlled dangerous substance, to wit, heroin, in violation of N.J.S.A. 24:21--20. Defendant's motion to suppress evidence uncovered as a result of a warranted search was denied. Defendant was one other (codefendant Oreanne Williams) were found guilty by a jury. Defendant was sentenced to the Youth Correctional Institution Complex to be transported to the Youth Reception and Correction Center at Yardville for an indeterminate term. ¹ Defendant appeals.

The State's proofs established that on January 27, 1973 Sergeant DiBiano and six other uniformed officers of the Asbury Park Police Department went to an apartment located at 1217 Springwood Avenue in Asbury Park for the purpose of executing a search warrant. The apartment was leased by Katherine Ellis. As they approached the apartment Artee Roberta Watkins pulled the door shut. When Ms. Watkins refused to open the door Sergeant DiBiano was forced to break the glass window and open the door in order to gain entry to the apartment. Upon entering DiBiano observed defendant run into the bathroom and close the door. DiBiano followed defendant into the bathroom and found him lying fully clothed and face down in the bathtub. When defendant stood up DiBiano observed two glassine envelopes containing a white powdery substance in the bathtub. Subsequent analysis of the envelopes establishes that the substance contained therein was starch, not heroin.

Meanwhile, Officer Elliott, who had entered the apartment with Sergeant DiBiano, went to the kitchen area where he observed Oreanne Williams, who was with Ms. Ellis, throw a purse out the window. The purse was retrieved and found to contain narcotic paraphernalia. Detective Wheary observed Eugene Jennings near the area of the kitchen, Sylvester Ellis sitting on a bed and Daniel Johnson standing near him.

An immediate search of the 1 1/2 room apartment by the police officers disclosed 16 glassine envelopes near a window located in the living room, 21 glassine envelopes in the waste basket in the living room, and a plastic bag containing syringes, needles and bottle caps on top of the refrigerator in the kitchen area. Analysis of 5 of the 16 envelopes and 10 of the 21 envelopes established that the substance contained therein was heroin. Upon analysis, the syringes, needles and bottle caps also revealed traces of heroin.

On his motion to suppress the evidence seized pursuant to the aforementioned search warrant, defendant challenged the affidavit which was submitted in support of the application for the warrant. The affidavit averred that Sergeant DiBiano and Detective Wheary received information from an informant who had 'provided reliable information in the past' that two females known as Katherine Ellis and Marie Ellis and a male known as 'Kenny' were selling heroin from apartment 'N' at 1217 Springwood Avenue in Asbury Park, New Jersey. The affidavit further disclosed that DiBiano was subsequently informed by an investigator in the Monmouth County Prosecutor's Office that a male known as 'Kenny' was selling heroin from this apartment, and that a check of the records of the Asbury Park Police Department revealed that Marie Ellis had previously been arrested for the possession and sale of heroin. The affidavit also indicated that DiBiano and Wheary made a surveillance of the described premises for about an hour and a half, during which time four persons, all of whom had arrest records for either the possession or sale of narcotic drugs, were observed entering the apartment.

Defendant contends that the trial judge erred in denying his motion to suppress the evidence seized pursuant to the search warrant, arguing that the supporting affidavit provided an insufficient basis for its issuance. We disagree.

The reliability of the informant is adequately vouched for by the statement that he had 'provided reliable information in the past.' State v. Ebron, 61 N.J. 207, 212, 294 A.2d 1, 4 (1972). Reliable past performance on the part of an informant is an index to present reliability. State v. Perry, 59 N.J. 383, 390, 283 A.2d 330 (1971). Moreover, the accumulation of information from an investigator in the Monmouth County Prosecutor's Office, the records of the Asbury Park Police Department and the surveillance conducted by the applying police officers assures that none of the information contained in the affidavit stemmed from irresponsible rumor or conjecture.

It is well settled that police officers' statements made in affidavit form to support the issuance of a search warrant should be tested and interpreted by the court 'in a common sense way without a grudging or negative attitude.' State v. Kasabucki, 52 N.J. 110, 117, 244 A.2d 101, 104 (1968); State v. Kurland, 130 N.J.Super. 110, 113, 325 A.2d 714 (1974). Once the judge has made a finding of probable cause on the proofs submitted and issued the search warrant, a reviewing court should give substantial deferences to his determination. State v. Perry, supra, 59 N.J. at 393, 283 A.2d 330; State v. Kasabucki, supra, 52 N.J. at 120, 244 A.2d 101; State v. Kurland, supra, 130 N.J. at 114, 325 A.2d 714. Even assuming that the validity of the affidavit is in doubt, 'the resolution of doubtful or marginal cases in this area should be largely determined by the privilege to be accorded to warrants.' United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965); State v. Perry, supra, 59 N.J. at 394, 283 A.2d 330.

In the light of this positive, common sense approach, we are satisfied that the information obtained from the informant was reliable and, coupled with the other information contained in the affidavit, was enough to 'permit the suspicions engendered by the informant's report to ripen into a judgment that a crime was probably being committed.' Spinelli v. United States, 393 U.S. 410, 418, 89 S.Ct. 584, 590, 21 L.Ed.2d 637, 645 (1969); State v. Ebron, supra. Accordingly, the motion to suppress the evidence obtained during the search of Ellis' apartment pursuant to a search warrant was properly denied.

We also find no merit in defendant's claim that the State failed to prove that 'he exercised actual or constructive dominion and control over the heroin found in the Ellis apartment'--an essential element of the crime charged--and that the trial judge therefore erred in denying his motion for judgment of acquittal at the end of the State's case.

N.J.S.A. 24:21--20 provides that it is 'unlawful for any person, knowingly or intentionally * * * to possess, actually or constructively, a controlled dangerous substance.' The unqualified term 'possess,' as used in this as well as other criminal statutes, signifies an intentional control and dominion of a designated article accompanied by knowledge of its character. See State v. Reed, 34 N.J. 554, 557, 170 A.2d 419 (1961); State v. Labato, 7 N.J. 137, 148, 80 A.2d 617 (1951); State v. Reyes, 98 N.J.Super. 506, 512, 237 A.2d 890 (App.Div.1968), certif. den. 51 N.J. 582, 242 A.2d 385 (1968). See also, State v. Humphreys, 54 N.J. 406 413--414, 255 A.2d 273 (1969). Actual physical manual control of the article is not required if the intention to exercise dominion and control over the object is manifested in circumstances where it is reasonable to infer that the capacity to do so exists. State v. Rajnai, 132 N.J.Super. 530, 536, 334 A.2d 364 (App.Div.1975); State v. Bozeyowski, 77 N.J.Super. 49, 51, 185 A.2d 393 (App.Div.1962), Cert. den. 374 U.S. 851, 83 S.Ct. 1916, 10 L.Ed.2d 1071 (1963); State v. Brown, 67 N.J.Super. 450, 455, 171 A.2d 15 (App.Div.1961); State v. Campisi, 42 N.J.Super. 138, 145, 126 A.2d 17 (App.Div.1956), rev'd on other grounds 23 N.J. 513, 129 A.2d 880 (1957).

While the mere presence of defendant and others in the Ellis apartment may have been alone insufficient to establish either actual or constructive possession of the heroin found in the apartment (see State v. Serrano, 53 N.J. 356, 359--360, 251 A.2d 97 (1969); United States v. Vilhotti, 452 F.2d 1186, 1188--89 (2 Cir. 1971), Cert. den. 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972)), evidence of the other circumstances was sufficient for a jury to find that defendant exercised dominion and control over the heroin beyond a reasonable doubt.

During their hour and a half surveillance the police observed four known drug offenders enter the apartment. When the police finally forced their way into the apartment they saw defendant fleeing to a bathroom in an obvious attempt to escape detection. Further search of the apartment revealed the presence of 36 glassine envelopes of heroin as well as other narcotic paraphernalia. In these circumstances defendant's conduct clearly evinced a consciousness of guilt not only with respect to the glassine envelopes he attempted to secrete but with respect to the heroin in the apartment as well. A jury could, therefore, conclude that defendant was guilty of possession of heroin. See State v. Bozeyowski, supra, 77 N.J.Super. at 58, 185 A.2d 393. See also, State v. Leak, 128 N.J.Super. 212, 216--217, 319 A.2d 740 (App.Div.1974), certif. den. 65 N.J. 565, 325 A.2d 699 (1974); State v. Petrolia, 45 N.J.Super. 230, 233, 132 A.2d 311 (App.Div.1957), certif. den. 25 N.J. 43, 134 A.2d 539 (1957), Cert. den 355 U.S. 942, 78 S.Ct. 431, 2...