State v. Hendricks

• Decision Date: 08 November 1976
• Citation: 145 N.J.Super. 27,366 A.2d 999
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Mary E. HENDRICKS and John Turner, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 27

145 N.J.Super. 27

366 A.2d 999

STATE of New Jersey, Plaintiff-Appellant, v. Mary E. HENDRICKS and John Turner, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Oct. 18, 1976.

Decided Nov. 8, 1976.

Gerald M. Compeau, Jr., Asst. Prosecutor, for plaintiff-appellant (Gerald M. Compeau, on the brief).

David L. Kervick, Asst. Public Defender, for defendants-respondents (Stanley C. Van Ness, Public Defender, attorney; David L. Kervick, Asst. Public Defender, of counsel and on the brief).

Before Judges CARTON, KOLE and LARNER.

The opinion of the court was delivered by

KOLE, J.A.D.

The trial judge entered orders suppressing evidence seized in the 'apartment' of Jackson to the extent that such evidence related to or might be used with respect to defendants Hendricks and Turner. Jackson was not a party to the motion to suppress. The State appeals by leave granted.

The issue on this appeal is whether the trial judge properly found and concluded, from the proofs before it, that the police affidavit supporting the search warrant failed to describe the apartment here involved with the accuracy required by the Fourth Amendment, thereby resulting in (1) the execution of the warrant with respect to Jackson's apartment, for which there was no authority, (2) an unlawful invasion of Jackson's privacy as a citizen, and (3) the seizure of evidence from that apartment which must be suppressed as to defendants Hendricks and Turner.

We hold that the proofs, including the affidavit of the police officer, Gravina, do not support these findings and conclusions. Hence, we reverse. See State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964).

The following appears from officer Gravina's affidavit in support of the warrant: He had probable cause and good reason to believe that Gregory Fisher and Mary Hendricks resided at 527 West Fifth Street, first-floor apartment, Plainfield, and that they were in possession of heroin at those premises. He described Fisher and Hendricks and stated that Fisher had been arrested for possession of marijuana and heroin. He described the premises at 527 West Fifth Street as a 2 1/2-story wooden dwelling, with the first floor colored brown, and the second floor colored pink, an open front porch on both the first and second floors and the numeral '527' appearing in black on the center post between the two front doors. He detailed the prior police surveillance of the premises and the activities occurring in connection therewith, including persons going into the first-floor apartment after knocking on the left front door of the house, and later existing therefrom. He also had seen Fisher and Hendricks leaving the first-floor apartment. A very reliable informant in narcotics cases had given Gravina data indicating that Fisher, Jackson and Stallings 'are dealing heroin from Fisher's house at 527 West Fifth Street,' and that 'they often cut and bag the heroin at the house next to 527 West Fifth Street'--I.e., 525 West Fifth Street. On February 26, 1974 at about 8 p.m., and on May 23, 1974 at about 11 p.m., the informant had entered the front door at 527 West Fifth Street and had purchased heroin from Fisher with money supplied by the police. He also advised the police that on May 23 Fisher had gone to the first-floor apartment in the next house--525 West Fifth Street--to obtain the heroin sold to the informant on that day.

The affidavit sought a search warrant permitting a search of the first-floor apartment at 527 West Fifth Street where Fisher and Hendricks 'allegedly reside,' as well as a search of their persons. It is reasonable to read the warrant as ordering a search of the 'premises commonly known * * * as the first floor apartment at 527-West Fifth Street, Plainfield' and the persons of Fisher and Hendricks.

It is plainly evident from the proofs at the suppression motion hearing that the first floor of the building, instead of being an apartment, had been altered so that it consisted of three separate rooms, none of which was interconnected, and a fourth empty room. The usual connecting doors to each room had been boarded up or otherwise sealed. The first floor also contained a common kitchen and bathroom. To get to the kitchen and bathroom, the occupants of the rooms had to use a common hallway. Apparently each room was separately rented to the occupant or occupants thereof. There were no names or numbers on the doors to any of the rooms. The left outside front door to the first floor was the entrance to the floor; anyone seeking a resident of that floor had to knock at the door and wait to be admitted.

According to Fisher's testimony, one family of nine or ten people resided on the second floor. Although Fisher testified that there was a lock on the door of his room, he did not know whether the other doors had locks. Names were apparently affixed to the three mailboxes on the outside of the building. While Hendricks' name was on one of the mailboxes, there is no evidence that either the names of Fisher or Jackson appeared on any of them. Officer Gravina did not recall whether these mailboxes existed.

Upon entering the house to execute the warrant Gravina observed that the first room on his left as he entered (that of Fisher and Hendricks) was unoccupied. He then observed a black male, further down the hall, look at him and run into the second room (that of Jackson) where the search warranted was executed. Fisher, Hendricks, Jackson and Turner were in the room that was searched and from which the evidence was seized....