State v. Smith
| Court | New Jersey Superior Court – Appellate Division |
| Writing for the Court | HANDLER |
| Citation | 356 A.2d 401,140 N.J.Super. 368 |
| Decision Date | 07 April 1976 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Willie D. SMITH, Defendant-Respondent. |
Page 368
v.
Willie D. SMITH, Defendant-Respondent.
Appellate Division.
Decided April 7, 1976.
[356 A.2d 402]
Page 369
Gary H. Schlyen, Asst. Prosecutor, for plaintiff-appellant (Burrell Ives Humphreys, Passaic County Prosecutor, attorney).Page 370
Randall W. Westreich, Asst. Deputy Public Defender, for defendant-respondent (Stanley C. Van Ness, Public Defender, attorney).
Page 369
Before Judges CARTON, CRAHAY and HANDLER.
Page 370
The opinion of the court was delivered by
HANDLER, J.A.D.
Defendant was charged by indictment with armed robbery and pleaded not guilty. He then moved to suppress the use as evidence against him of a certain gun. A hearing was held and the motion was granted. The State then obtained leave to appeal.
The sole witness for the State at the suppression hearing was Detective Gourley of the Paterson Police Department. He testified that on a certain date, at 8:30 a.m., he and two other detectives went to an apartment rented by one Shirl Bouier in order to execute a warrant for the arrest of one Marvin Higgins. Although the address indicated as Higgins' on the warrant was different, the detectives had information that Higgins would be at the Bouier apartment.
They were admitted into the apartment by a maintenance man who used a pass key [356 A.2d 403] and entered, apparently without announcing their purpose or authority. On entering the detectives saw Higgins in the living room. Higgins threw a paper bag onto the floor and reached into the pocket of his bathrobe. Gourley told Higgins to take his hands out of his pocket and put them in the air. Detective Brejack then removed a gun from the bathrobe pocket. The discarded bag contained six smaller bags, each of which contained a white powder which Gourley believed to be narcotics. There were also narcotic implements on a living room table. Sitting at a kitchen table near the living room were two other men and Gourley saw on the table narcotic implements consisting of hypodermic needles, a cooker and glassine envelopes.
The detectives proceeded to search the rest of the apartment. Detective Regucci remained in the living room where he detained Higgins and the two other men, while Gourley and Brejack went down the hallway to the master bedroom about 35 feet away.
Page 371
The door to the bedroom was open and the detectives saw defendant and Bouier asleep in the bed. Gourley awakened them and told them to get dressed and get out of the room. He did not arrest them or tell them that they were under arrest but he watched them from the bedroom door as they were getting dressed. Meanwhile Brejack actually entered the bedroom. Gourley saw Brejack turn around from the dresser with a gun in his hand, a loaded .22-caliber revolver, which is the subject of the suppress motion. Brejack also found a shotgun in the closet. Brejack did not testify and Gourley could only state that the revolver was found 'in or on the dresser.'
After the guns were found defendant and Bouier were taken into the living room to join the others. At that point Gourley detained them all in the living room while Brejack and Ragucci went back to check other rooms where they found defendant's brother asleep in one bedroom and children asleep in another.
The sole witness for the defense was Shirl Bouier, who indicated that the apartment was hers and defendant occasionally spent nights there.
The trial judge concluded that upon entering the bedrooms there was no contraband or evidence in plain view and that no one was seeking to hide anyone, and there was no 'risk or hazard to (the) safety' of the officers. Accordingly, he ruled that the failure to obtain a search warrant under these circumstances required suppression of the evidence seized. We disagree and reverse.
At the outset we determine that the search in question cannot be upheld as one incidental to the arrest of...
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State v. Seiss
...he might have obtained a weapon or destroyed evidence, the 81/2 pounds of marijuana seized there must be suppressed. State v. Smith, 140 N.J.Super. 368, 356 A.2d 401 (App.Div.1976), aff'd o. b. 75 N.J. 81, 379 A.2d 1275 (1977), is not to the contrary. Smith stands for the proposition that: ......
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State v. Henry
...sweep of the area if they have reason to believe that they may be in danger from other parties on the premises. See State v. Smith, 140 N.J.Super. 368, 372, 356 A.2d 401 (App.Div.1976), aff'd o.b., 75 N.J. 81, 379 A.2d 1275 (1977). The one thing they may not do, however, is use the arrest a......
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State v. Bruzzese
...(police followed arrestee to hotel room to retrieve jacket; no evidence that he was armed or dangerous); see also State v. Smith, 140 N.J.Super. 368, 356 A.2d 401 (App.Div.1976) (police authorized in entering bedroom where arrestee's housemates were dressing). On its facts, Seiss is disting......
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State v. Welsh
...v. Griffith, 537 F.2d 900, 904-905 (7 Cir. 1976); United States v. Mason, 523 F.2d 1122, 1125-1126 (D.C.Cir.1975); State v. Smith, 140 N.J.Super. 368, 373, 356 A.2d 40 (App.Div.1976), aff'd o.b. 75 N.J 81, 379 A.2d 1275 In the instant appeal, no convincing evidence of connivance or pretext ......
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State v. Seiss
...he might have obtained a weapon or destroyed evidence, the 81/2 pounds of marijuana seized there must be suppressed. State v. Smith, 140 N.J.Super. 368, 356 A.2d 401 (App.Div.1976), aff'd o. b. 75 N.J. 81, 379 A.2d 1275 (1977), is not to the contrary. Smith stands for the proposition that: ......
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State v. Henry
...sweep of the area if they have reason to believe that they may be in danger from other parties on the premises. See State v. Smith, 140 N.J.Super. 368, 372, 356 A.2d 401 (App.Div.1976), aff'd o.b., 75 N.J. 81, 379 A.2d 1275 (1977). The one thing they may not do, however, is use the arrest a......
-
State v. Bruzzese
...(police followed arrestee to hotel room to retrieve jacket; no evidence that he was armed or dangerous); see also State v. Smith, 140 N.J.Super. 368, 356 A.2d 401 (App.Div.1976) (police authorized in entering bedroom where arrestee's housemates were dressing). On its facts, Seiss is disting......
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State v. Welsh
...v. Griffith, 537 F.2d 900, 904-905 (7 Cir. 1976); United States v. Mason, 523 F.2d 1122, 1125-1126 (D.C.Cir.1975); State v. Smith, 140 N.J.Super. 368, 373, 356 A.2d 40 (App.Div.1976), aff'd o.b. 75 N.J 81, 379 A.2d 1275 In the instant appeal, no convincing evidence of connivance or pretext ......