State v. BrownState v. Brown
Defendant was convicted by a jury of the unlawful possession of heroin and cocaine, in violation of
The first four points raised on appeal in defendant‘s brief deal with the trial judge‘s refusal to grant his motion to suppress the narcotics evidence seized at the time of his arrest, and will be dealt with together. The State‘s proofs on the motion, briefly stated, were that as the result of a tip
Defendant testified on the motion to suppress that as Smith drove into the motel parking lot three policemen with drawn guns forced them out of the car. They were searched in the parking lot and then taken into Smith‘s motel room. He denied ever possessing the tinfoil packet or seeing it near the cart. He denied being taken by the police to his motel room, or that he had any knowledge of the Excedrin bottle or the narcotic paraphernalia allegedly found by the police in the room. He denied being placed under arrest or warned of his constitutional (Miranda) rights.
The trial judge believed the police version of the incident and denied the motion to suppress. Based on the stated facts we are in accord with the trial judge‘s determination. The information concerning defendant‘s involvement with illegal narcotics was received from an informant whose information had proved accurate in the past. The follow-up investigation by the police confirmed the informant‘s story. When defendant attempted to dispose of the tinfoil packet, which they had a right to suspect contained narcotics, they had ample probable cause to arrest defendant
There is no merit to defendant‘s contention that the seizure of the Excedrin bottle in his room was unlawful. The police, for their personal safety and to prevent an escape, were justified in escorting defendant to his room to get his jacket when he requested it. The police, therefore, had a right to be in his room, and when they inadvertently saw the Excedrin bottle in plain view they had probable cause to suspect its contents and, therefore, lawfully confiscated it. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971); State v. Waltz, 61 N.J. 83, 87-88 (1972); State v. Griffin, 84 N.J. Super. 508, 518-519 (App. Div. 1964).
Defendant argues that prejudicial error occurred when the trial judge, on the motion to suppress, compelled him to proceed first with his proofs. We find that procedurally the court erred but that it did not amount to prejudicial error warranting reversal. See State v. Gardner, 51 N.J. 444, 456 (1968); State v. Doto, 16 N.J. 397, 405 (1954);
We suggest for future guidance of trial judges, when dealing with motions to suppress evidence seized as the result of a warrantless search, that all defendant need do is show the warrantless search. This then places the burden on the State to go forward with proof to justify its actions. Defendant would then, of course, be permitted to present his proofs — having in mind that the ultimate burden of proving probable cause for the search always remains with the State. See
The burden is on the moving party, i.e., the defendant, to prove that the search was invalid; however, if it is established that the search was made without a warrant, the burden shifts to the government to produce `clear and convincing evidence’ that the warrantless search meets constitutional requirements.
Defendant‘s further contention that his conviction on two counts of unlawful possession was improper, in that they merged into one offense, is without merit. We are here confronted with separate acts of possession in two different places. Defendant possessed cocaine in the motel parking lot and heroin in his motel room. These facts make State v. Butler, 112 N.J. Super. 305 (App. Div. 1970), inapplicable.
Affirmed.