State v. Morse

• Decision Date: 05 May 1969
• Citation: 54 N.J. 32,252 A.2d 723
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Walter MORSE, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 32

54 N.J. 32

252 A.2d 723

STATE of New Jersey, Plaintiff-Respondent, v. Walter MORSE, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 20, 1969.

Decided May 5, 1969.

Bruce I. Goldstein, Asst. Deputy Public Defender, for appellant (Richard Newman, Deputy Public Defender, of counsel, Carl R. Soller, Asst. Deputy Public Defender, on the brief, Stanley C. Van Ness, Public Defender, attorney).

Donald S. Coburn, Asst. Prosecutor for respondent (James R. Zazzali, Asst. Prosecutor, on the brief, Joseph P. Lordi, Essex County Prosecutor, attorney).

The opinion of the court was delivered by

WEINTRAUB, C.J.

Defendant was convicted of unlawful possession of a narcotic drug (heroin) in violation of N.J.S.A. 24:18--4. The Appellate Division affirmed, 106 N.J.Super. 1, 254 A.2d 109 (1968), and we granted defendant's petition for certification. 51 N.J. 390, 241 A.2d 8 (1968).

N.J.S. 2A:169A--1 and 2, N.J.S.A. require persons convicted of a narcotics offense to register with the police authorities therein specified. Defendant, who was within the statute, was so registered. N.J.S. 2A:169A--6, N.J.S.A. requires a registered person to give notice of a change of address within 24 hours. A violation of that section is a disorderly persons offense. N.J.S. 2A:169A--8, N.J.S.A. Defendant was arrested when he told the officer he had not reported a change of address as required by the statute, and it was in a search incidental to that arrest that the heroin was found.

Defendant sought belatedly to question the validity of the search and we agree with the Appellate Division that he could not. We would rest our affirmance on the opinion of the Appellate Division without more but for its reference to State v. Orr, 93 N.J.Super. 140, 225 A.2d 157 (App.Div.1966).

Orr held that since a violation of N.J.S. 2A:169A--6 N.J.S.A. is complete upon the expiration of the 24-hour period, the offense, for that reason, could not thereafter be said to be committed in the 'presence' of the arresting officer within the meaning of N.J.S. 2A:169--3, N.J.S.A. which provides that a disorderly person may be arrested by a police officer without a warrant if the 'offense is committed in his presence.' Although for the reasons to be stated we think the power to arrest does not turn upon whether the offense is a continuing one, nonetheless because of the possible implications upon problems of pleading and proof, we state our disagreement with the concept in Orr that the offense does not continue beyond the 24-hour period.

Although a violation of N.J.S. 2A:169A--6, N.J.S.A. comes into being at the expiration of the 24-hour period, there is nonetheless a continuing requirement that a person within the reach of the statute shall meet its terms. Surely the burden would not be the State's to prove the precise day or moment upon which the failure ripened into an offense. It is more consonant with the objective of the statute to deem noncompliance to be a continuous offense so long as the individual is required by the statute to be registered, so that any 24-hour interval will suffice for a conviction even though only one conviction may be had with respect to one continuous failure to comply with that section. Cf. United States v. Toussie, 280 F.Supp. 473 (E.D.N.Y.1967).

Thus the offense was a continuing one at the time of the arrest. That the officer was physically at the scene of the offense may not, however, always satisfy the statutory provision that the offense be committed in his 'presence.' The word "presence' sums up the requirement that the officer know of the event by the use of his senses.' State v. Smith, 37 N.J. 481, 495, 181 A.2d 761, 768 (1962). Although in the case of a 'crime,' an officer may arrest upon probable cause supplied by others, he cannot arrest for an offense of a lower grade unless he himself knows of it. The thesis, no doubt, is that, unless the officer himself knows of the offense and the offender, it is better, in the light of the less serious nature of the alleged offense, to leave the determination of probable cause for an arrest to an officer in the judicial branch. See Newark v. Murphy, 40 N.J.L. 145, 149--150 (Sup.Ct.1878); Collins v. Cody, 95 N.J.L. 65, 68, 113 A. 709 (Sup.Ct.1920). Yet the danger of a mistaken arrest is equally obviated when the officer, although not a witness to the offense, learns from the lips of the offender that he committed it. The officer then knows everything his senses could have gathered. So it has been held that an arrest may be made on the person's admission to the arresting officer even though without the admission the officer could not know of the offense. State v. Gulczynski, 2 W.W.Harr. 120, 32 Del. 120, 120 A. 88 (Gen.Sess.1922); Brown v. State, 91 So.2d 175 (Fla.Sup.Ct.1956); People v. Clark, 9 Ill.2d 400, 137 N.E.2d 820 (Sup.Ct.1956), overruled on other grounds, People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433 (Sup.Ct.1960), Certiorari denied, 364 U.S. 833, 81 S.Ct. 57, 5 L.Ed.2d 59 (1960); Campbell v. Commonwealth, 203 Ky. 151, 261 S.W. 1107 (Ct.App.1924); Patterson v. Commonwealth, 206 Ky. 258, 267 S.W. 160 (Ct.App.1924); Cornish v....