State v. Hannah

• Decision Date: 16 October 1973
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Milton Wesley HANNAH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 290

125 N.J.Super. 290

310 A.2d 512

STATE of New Jersey, Plaintiff-Respondent, v. Milton Wesley HANNAH, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Sept. 24, 1973.

Decided Oct. 16, 1973.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Gerald P. Boswell, Asst. Deputy Public Defender, of counsel and on the brief).

John S. Kuhlthau, Middlesex County Prosecutor, for plaintiff-respondent (John N. Shaughnessy, Asst. Prosecutor, of counsel and on the brief).

Before Judges CONFORD, HANDLER and MEANOR.

The opinion of the court was delivered by

CONFORD, P.J.A.D.

We find only one point raised in defendant's brief worthy of discussion, I.e., the alleged illegality of the search of defendant's person.

Defendant was tried and convicted for unlawful possession of heroin. Aside from the search question defendant states as grounds of appeal: (1) perjurious police testimony was admitted on the motion to suppress; (2) police failure to arrest defendant at the scene of his apprehension violated his Fourth and Fifth Amendment 'rights,' and (3) defendant was not brought before a magistrate until after a lapse of 69 days. We find none of these contentions to have merit.

As to the search issue, the facts are these. On the day in question Captain Gudgeon of the Middlesex County Sheriff's Office received a telephone call from an individual he knew advising him that a 1968 white Pontiac with a black roof and Ohio license plates AF 4436 would be parked in the vicinity of Neilson and Washington Streets in New Brunswick; that the driver would be a person named Jackson, a Negro male six feet tall and weighing 195 pounds, wearing a yellow suit; that he would have narcotic drugs in his possession and that he was believed to be armed with a shot-gun. The informant was considered reliable by the officer, having on previous occasions given the police information on narcotics activity which had resulted in three arrests.

Captain Gudgeon, in the company of Detectives DiPane and Robert Belluscio, proceeded to Neilson and Washington Streets. Although they did not find such a vehicle in this location, they spotted a vehicle of that description making a right turn at the traffic light on Albany Street. The officers then stopped the vehicle on Albany Street at the corner of George Street. They approached defendant with their guns drawn and then took him over to the sidewalk where, according to Gudgeon and DiPane, they conducted a quick superficial search for weapons and narcotics. They found no weapons or narcotics, but defendant's wallet revealed a driver's license and registration in the name of Jackson. Since a crowd was gathering and traffic was being blocked, defendant and his car were removed to police headquarters three blocks away where a thorough search of defendant's person revealed 51 bags of heroin and some cocaine. These items were the basis for the prosecution resulting in the conviction.

On the motion to suppress the trial judge held that although defendant was not arrested until after the search at headquarters--a fact unequivocally asserted by Captain Gudgeon--the detention of the defendant for purposes of making the search was proper under the circumstances because of an 'emergent situation.'

Defendant contends there was no probable cause for the police to believe he had anything lawfully seizable on him. We disagree. The informant's reliability was established by the previous experience of the police with him and corroborated by the close resemblance of defendant and his vehicle to the information received. Compare State v. Scharfstein, 79 N.J.Super. 236, 191 A.2d 205 (App.Div.1963), aff'd 42 N.J. 354, 200 A.2d 777 (1964). The unusual detail with which defendant and his car, as well as their location, were described presents a close analogy with the situation in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); and see United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

However, the mere existence of probable cause does not alone confer legality upon a warrantless search. 'Reasonableness,' for Fourth Amendment purposes, is Prima facie equitable with the obtaining of a valid search warrant 'except in certain carefully defined classes of cases' (the oft-mentioned 'exceptions' to the warrant requirement): Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706, 713 (1973); Wyman v. James, 400 U.S. 309, 316, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971); Camara v. Municipal Court, 387 U.S. 523, 528--529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

We pause to point out that the exception for searches incidental to a valid arrest is not applicable here, not did either the State or the trial court so aver. The evidence bears out the trial court's finding that prior to the discovery of the drugs defendant was only 'detained' in order that the...