State v. Morse

• Decision Date: 10 January 1968
• Citation: 254 A.2d 109,106 N.J.Super. 1
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Walter R. MORSE, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

106 N.J.Super. 1

254 A.2d 109

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

Superior Court of New Jersey, Appellate Division.

Argued Dec. 4, 1967.

Decided Jan. 10, 1968.

Peter S. Valentine, Newark, assigned counsel, for appellant (Joseph R. Rusignola, West Orange, on the brief).

James R. Zazzali, Asst. County Prosecutor, for respondent (Brendan T. Byrne, County Prosecutor, attorney).

Before Judges CONFORD, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

COLLESTER, J.A.D.

Defendant appeals from his conviction of the crime of unlawful possession of a narcotic drug in violation of N.J.S.A. 24:18--4.

On April 13, 1966 two Newark detectives, assigned to the narcotics squad, stopped defendant while he was walking on Elizabeth Street to check on his narcotics registration card. Defendant said he was living in New York City. His registration card listed his address as 176 Badger Avenue, Newark. The detectives placed him under arrest as a disorderly person for having failed to notify the chief of police of his change of address within the 24-hour period required by N.J.S. 2A:169A--6, N.J.S.A. A search of his person revealed that he was carrying a rubber receptacle which contained 10 glassine envelopes of heroin. At his trial, following an indictment for unlawful possession of narcotics, defendant did not testify or call any witnesses in his defense. He was found guilty by the jury and appeals from that conviction.

Defendant concedes that no motion was made prior to trial, pursuant to R.R. 3:2A--6(a), to suppress the heroin as evidence on the ground that it was obtained by an unlawful search and seizure. Moreover, no objection was raised to the admission of such evidence at the trial.

Defendant argues that he should be permitted to raise the question of illegal search and seizure on this appeal. He bases his claim on the opinion rendered by this court in State v. Orr, 93 N.J.Super. 140, 225 A.2d 157 (App.Div.1966), where we held that an arrest for violation of N.J.S. 2A:169A--6, N.J.S.A., without a warrant was invalid and that evidence secured as a result of a search and seizure incidental to the unlawful arrest must be suppressed.

R.R. 3:2A--6(a) provides that a motion for the return of property seized and to suppress the evidence obtained shall be made within 30 days after the initial plea to the charge unless for good cause the court shall enlarge the time. It provides that the motion shall be determined before trial and may be entertained at trial only if the court finds the defendant could not reasonably have made the motion prior thereto. It further provides that if a timely motion is not made in accordance with the rule, the defendant shall be deemed to have waived any objection during the trial to the admission of the evidence based on the ground that it was unlawfully obtained.

We are satisfied that defendant's...