State v. SchelleState v. Schelle
The State appeals, upon leave granted, from orders suppressing evidence found on May 8 and May 24, 1973, when, under authority оf search warrants issued on those respective dates, police searched defendant‘s apartment and found narcotics and narcotic paraphernalia therein.
The incidents here involved began with a report received by police of an armed robbery which had taken place on May 6, 1973 at the premises of Tak Merchandise Company on Route 46 in South Hackensack. The police concluded from the investigation made by them and from a photograрhic identification made by the victim of the robbery that one of the two culprits, the one who had pointed a gun at the victim, was Paul J. Cosgrove. Upon the filing of a complaint, a warrant issued for Cosgrove‘s arrest.
An investigation to ascertain Cosgrovе‘s whereabouts was undertaken. On May 7, 1973 the local police learned from the State Police that a surveillance they had conducted of the residence of Judith Schelle at 292C Grove Street, Lodi, disclosed that Cosgrove had “frequented this place of residence.”
On May 8 a lieutenant of the South Hackensack Police Department, accompanied by two State Police detectives and Lodi police officers, proceeded to the Schelle residence. A knock on the door brought no response, but the lieutenant, looking through the glass windows in the front dоor, saw the shadows of two persons inside at the top of the stairs. Continued knocking finally brought Mrs. Schelle to the door.
The South Hаckensack police lieutenant told her that he was a police officer, that he had a warrant for the arrest of Cosgrove and asked to be admitted. Whether defendant Schelle permitted the officers to enter or whether the рolice entered without more is disputed in the proofs.
As the police entered the living room of the apartment they heard noises emanating from a closet and found Cosgrove hiding therein. Cosgrove was arrested. A search of the immediate area failed to disclose the weapon which Cosgrove reputedly was carrying.
After Mrs. Schelle was arrested for harboring a fugitive, one of the Lodi detectives was directed to, and did, apply for a search warrant authorizing a search of the Schelle apartment for the revolver which was believed to be there. The warrant was issued by the judge of the Lodi Municiрal Court on the basis of an affidavit by the detective detailing the events which had occurred earlier that day.
No revolver was found when the entire apartment was searched pursuant to the search warrant. However, narcotics were fоund and Mrs. Schelle was arrested for possession thereof.
The trial judge‘s determination that the narcotics evidence so seized should be suppressed was bottomed on his apparent conclusion that, absent a search warrant, the pоlice had no right to enter the Schelle apartment in the first instance. That conclusion is erroneous.
The New Jersey law (see State v. Fair, at 86) is in accord with the rule stated in 5 Am. Jur.2d, Arrest, § 90 at 776:
In most jurisdictions the rule is that whenever an officеr has reasonable cause to believe the person named in a warrant [for arrest] in his possession, * * * is in the dwelling house of a stranger, he has a right, after demand for admittance and notice of his purpose, to break open the doors in order to search the house and arrest the offender.
The search which the police made as an incident to Cosgrоve‘s arrest was within a permissible area, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and, in any event, no evidence was found and seized as a result of that search.
Thе evidence which the court suppressed was found in the course of the search of the apartment made later undеr the authority of the search warrant of May 8, 1973. That warrant issued on the basis of an affidavit which, we conclude, fully established the еxistence of probable cause for a belief that the revolver which Cosgrove used in the robbery was in the apartmеnt. The trial court‘s contrary conclusion was in error. State v. Kasabucki, 52 N.J. 110 (1968).
Nor was the trial court warranted in concluding that the affidavit on the basis of which the May 24, 1973 search warrant issued was insufficient to establish probable cause.
We are satisfied that the affidavit was sufficient to establish probablе cause for the issuance of the search warrant. State v. Kasabucki, supra; State v. Gillman. 113 N.J. Super. 302, 305 (App. Div. 1971).
The order granting defendant‘s motions to suppress evidence is reversed.