State v. ChanceState v. Chance
This is аn application to suppress the introduction into evidence of four marijuana cigarettes obtained by pоlice officers from the defendant upon the allegation that the cigarettes were obtained unlawfully, in violation оf the defendant‘s constitutional rights under the Fourth and Fifth Amendments of the
When apprehended, the defendant was in a restaurant in Newark. He testified that a detective and two police officers walked into the restaurant, went directly to him and directed him to stand up against the wall. He testified that the police officers searched his person and found a cigarette pack in his shirt pocket containing marijuana cigarettes.
Detective Rebar of the Newark Police force testified that about 12:50 A.M. on the day in question he received an anonymous telephone call informing him that there was а colored man wearing a green shirt at the restaurant attempting to sell marijuana cigarettes. The detective furthеr testified that he immediately drove to the restaurant premises in a police car and that he called for the assistance of a patrol car. On arrival at the restaurant premises, the police officer testified that he оbserved the defendant in the restaurant, noted that he fitted the description as a colored man wearing a green shirt, that immediately upon arrival
It was agreed by both the State and the defense that the issues were whether the apprehension of the cigarettes was in fact the product of a search and seizure and, if so, whether the search was a reasonable one.
The defendant‘s version of the facts, of course, spells out a search and seizure, but the State‘s case also spells out a search and seizurе. The cigarette package was so arranged that the marijuana cigarettes were not visible from the outside, аnd there is sufficient testimony in the record from which it can be inferred that the detective forced open the defendant‘s hand extricating the cigarette package. It is unnecessary to decide which version of the facts should be accepted, since both sets of facts lead the court to the conclusion that a search and seizure occurred.
In searching for guiding authority we are of course led principally to Federal cases. This is not to acknowledgе their binding efficacy. However, of necessity, in the absence of decisions of the appellate courts of оur own jurisdiction, well reasoned opinions of the Federal courts are persuasive.
It is to be noted first of all that not аll searches and seizures without a warrant are prohibited by the Constitution. It is only those searches which are unreasonable
The defendаnt complains of the admission of the hearsay testimony of the detective as to the anonymous tip. In United States v. Roberts, 90 F. Supp. 718 (E.D. Tenn. N.D. 1950), the specifiс issue of hearsay was dealt with. The court received hearsay testimony on the issue of probable cause and held a search and seizure valid when based upon information supplied by an anonymous informer.
The Federal courts formerly held that the fruits of a search made without a warrant would be suppressed as evidence if it was practicable tо obtain a search warrant. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). The rule has however been modified and the test obtaining presently is one of reasonableness under all the circumstances. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950).
In the instant case the police officer received the information upon which the search was based at 12:50 A.M. The apprehension of the defendant and the search took place аt about 1:10 A.M., the officer having driven directly
Upon a consideration of all of the factors, it is concluded that it was a reasonable exercise of police power to search the defendant without a warrant.
The motion of the defendant will be denied.