State v. Smith

• Citation: 113 N.J.Super. 120,273 A.2d 68
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Wilbert SMITH, Defendant-Appellant.
• Decision Date: 19 January 1971
• Court: New Jersey Superior Court – Appellate Division

Page 120

113 N.J.Super. 120

273 A.2d 68

STATE of New Jersey, Plaintiff-Respondent, v. Wilbert SMITH, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 19, 1970.

Decided Jan. 19, 1971.

Edward Weisslitz, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney).

Gerald J. DiNicola, Salem County Prosecutor, for respondent.

Before Judges CONFORD, KOLOVSKY and CARTON.

The opinion of the court was delivered by

CONFORD, P.J.A.D.

Defendant appeals from a conviction for possession of marijuana. Arresting officers found a mailed package of marijuana in his car and an incriminating letter in his bedroom. Inter alia, a number of search and seizure questions are presented.

The judge who later tried the case issued a warrant to search defendant's home on August 19, 1968. This warrant, which authorized a search for 'narcotics and narcotics paraphernalia,' was executed August 28, 1968, and defendant was arrested at his home at the same time pursuant to an arrest warrant dated that day for possession of marijuana. A motion to suppress the package and the letter (and part of an envelope) was heard and denied in advance of the trial.

Facts Pertinent To Search Issues

Except where otherwise indicated the facts here stated were elicited at the trial rather than on the hearing of the motion to suppress.

A short time prior to August 19, 1968 Detective Charles Croce of the New Jersey State Police received information from the United States Bureau of Customs that during a routine examination of packages mailed from Vietnam their agents had discovered a package containing marijuana addressed to defendant Wilbert Smith, 319A Springfield Avenue, Penns Grove, New Jersey. Control of the package was assumed by the customs authorities, acting in cooperation with the postal authorities. The package reached the Penns Gove Post Office on August 15, 1968 and was at once examined by Detective Croce to determine the contents. He was satisfied that it was marijuana.

On August 19, 1968 Detective Croce made application for a search warrant for the Smith home. His supporting affidavit averred that he was experienced as a narcotics investigator and that he had 'probable cause' to believe that Smith was in possession of 'Marihuana' (sic) at the premises in question. His belief was rested on information from federal customs and postal officers (named) that a package containing the drug was mailed August 6, 1968 from the Far East, purportedly by one SP/4 B. Brown, with an indicated serial number, addressed to Smith at said premises; that Croce personally examined a sample of the contents and believed it to be marihuana (sic) and that a customs officer had informed him that examination of the substance by federal authorities had determined it to be such. (Testimony at the trial was to the effect that an investigation showed there was no such person as SP/4 B. Brown with the specified serial number.) A warrant in the tenor noted above issued the same day--August 19, 1968--to search defendant's one-story residence.

An effort by local postal personnel to deliver the package to defendant on August 19 (after issuance of the warrant) failed because defendant and his family were on vacation. A slip was left at the house notifying defendant to pick up the article at the post office (the package being registered). After another abortive effort by the officials to effect delivery, defendant finally obtained possession of the package on August 28, 1968 under the following circumstances. At the motion hearing defendant testified that on August 27, 1968 he received a notice to pick up the package. On August 28, 1968 he asked a fellow-employee, Baylor, to pick up the package for him as defendant's work shift did not end prior to the postoffice closing hour. Trial testimony disclosed that the police maintained surveillance as Baylor picked up the package and followed him to his home. The police obtained Baylor's cooperation, and waited in and near his home for defendant's arrival. Defendant came and received the package from Baylor. He was seen to place the package in the trunk of his car. The police followed him home in the course of a journey during which he did some shopping and placed the purchases in the car (not the trunk). The police were unable to ascertain whether or not defendant brought the package into the house from the car on arrival.

On the motion to suppress, defendant testified that he had placed the package in his car trunk after obtaining it from Baylor, and that he did not open the package and was ignorant of its contents. He was in his house when the police officers knocked on the door. Defendant's wife answered the door, whereupon the police officers identified themselves and stated their belief that defendant had narcotics in his possession. They then informed defendant that they had a search warrant and read it to him. However, he was not advised of his rights nor placed under arrest. The police asked him where the package was and he told them it was in the car trunk. They asked, 'did (he) mind getting it, and (he) told them no, (he) didn't mind,' because he thought the search warrant covered the car. He opened the trunk and gave them the package. Upon returning to the house they asked him if he had 'any personal papers.' He responded affirmatively, and they went into his bedroom and 'went through the personal papers and what not.' They took a letter, and a torn piece of an envelope from another letter from the same sender. The letter was from one P.F.C. Burton Domenick in Vietnam. ¹ Defendant could not recall whether the letter was opened or sealed when taken. Detective Croce read the letter to Sergeant Reeves of the local police.

The record of the motion to suppress does not show the contents of the letter, but that of the trial indicates the letter was dated August 11, 1968, was addressed to defendant, refers to 'that bag (and 'that smoke') I sent you,' and explains methods of 'cutting' the contents so as to enable defendant to 'make well over $1,000' therefrom. It also tells defendant to send Domenick 'the bread' (money) to a new address if he receives 'the smoke.' After the instructions for 'cutting' the letter concludes: 'Frankly, I shouldn't have to tell you all this because I know you have been out there just as long as I have.'

The State's proofs on the motion to suppress were confined, essentially, to testimony by Sergeant Reeves that upon arrival at the Smith home on August 28, 1968, and before any search or seizure, he read and served both the search warrant and arrest warrant upon Smith, and placed him under arrest. On cross-examination, he said he asked Smith no questions, that he advised him of his 'rights,' and that he knew the package was in the car because he 'saw it' (presumably En route to the house). The court refused to allow defendant to cross-examine the witness concerning the details of the search on objection by the prosecutor that this would exceed the scope of the direct examination. At the trial, however, Reeves and other officers testified, in substance, that after Reeves placed Smith under arrest the latter inquired as to the reason, and Reeves told him they wanted the package he got from the postoffice. Smith told them it was in the car, opened the trunk and handed the package to them. Before this occurred, Reeves informed defendant of his Miranda 'rights.'

After getting the package the officers searched a bedroom and found the Domenick letter and two envelopes in a bureau drawer. One envelope contained the letter. The other envelope bore Domenick's name as sender of another (unidentified) letter. On cross-examination Reeves said he had not asked Smith where he kept his papers, but went directly to search the bedroom and found the letter. He did not search elsewhere in the house.

In denying the motion to suppress the judge (who also conducted the trial) held, responding to the respective contentions of defendant: (1) the search warrant was adequately supported by probable cause to believe marijuana was in the house; (2) the seizure of the package was valid under the warrant, the car not being 'remote' from the house; alternatively, (a) defendant consented to the search of the car, and (b) the search of the car was lawful as incidental to the arrest; (3) the letter was properly seized in a search incidental to arrest because it was written 'in connection with the traffic or the method of disposing of or selling this contraband.'

Defendant poses the same search and seizure questions before us as he did below.

I. Restriction of Cross-Examination on Motion to Suppress

At the outset of our consideration of the search issues it must be observed that the motion judge was ill-advised in limiting cross-examination of Sergeant Reeves as to the details of the search conducted by him. Since the State was pursuing the alternative theory of justification for search and seizure of both the package and the letter as incidental to a valid arrest, independent of reliance on the search warrant, the burden of proof was to that extent on the State, see State v. Scrotsky, 39 N.J. 410, 414, 189 A.2d 23 (1963), and full examination of the police officer on the details of the search was highly appropriate, if not absolutely necessary. For reasons to be indicated in our discussion below as to the validity of seizure of the letter, there will have to be a remand to elucidate the reasons for and details of the search of defendant's private papers. As to the other questions of search law involved, however, since the factual versions of both sides came out at the trial, and both parties have cited and relied upon trial testimony as well as the proofs adduced on the motion, we will do likewise. In view of our conclusions, no prejudice will thereby be visited on defendant. ²

II. Validity of the Search Warrant

Defendant argues that the warrant is...