Petition for Writ Not Available at Time of Filming — Tonsul v. New Jersey

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FILED

Octoder Term, 1971

oct 18 1971

E. ROBERT SEAVER, CLERK

No.

T1- 5338

CHARLES H. TONSUL and

JOHN LEE IRVING,

Petitior rs,

*V S-

STATE OF NEW JERSEY,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI TO THE NEW JERSEY

SUPREME COURT

JOSEPH P. LORDI

ESSEX COUNTY PROSECUTOR

ESSEX COUNTY COURTS BUILDING

NEWARK, NEW JERSEY 07102

DAVID S. BAIME

ASSISTANT PROSECUTOR

CHIEF, APPELL4 TE SECTION

Of Counsel

A.J. Fusco, Jr.

Legai Assistant

On the Brief

RAL MIMEOGRAPHING SERVICE INC.

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TABLE OF CONTENTS

PAGE

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Constitutional Provisions Involved .................-. 4

Se is aye a Ww A Seer eee eee 5

Reasons Why Writ Should Not be Granted .,.......... 7

Point I The Arrest and Seizure Did Not Violate

Petitioners’ Fourth Amendment Rights .... 7

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CASES CITED

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23

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Ker v. California, 374, U.S. 23, 37, 83 S. Ct. 1623, 1632,

10 L.Ed. 2d 726, 739-41 (1963) .............4.. 6

State v. Allen, 113 N.J. Super. 245 (App. Div. 1970).... 7

State v. Davis, 50.N.J. 16, 23-24 (1967), certiorari

denied in 389 U.S. 1054 (1968) ................ 6

State v. Fair, 45 N.J. 77 (1965) .............. e020. 7

meate ¥. Macwk, 37 H.5. 1, S4C19TO) . wc wc ccc eees 6

Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 1971, 26

Sis ee OOM aie ead Sade e Rhea ees e By

NEW JERSEY STATUTE CITED

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OPINIONS BELOW

The respondent accepts the statement of opinions below as

set forth in the pro se petition.

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JURISDICTION

The respondent opposes the grounds for jurisdiction as set

forth in the petition. It is submitted that the decisions of the

Appellate Division of the New Jersey Superior Court and the

New Jersey Supreme Court were in accordance with the

Fourth Amendment and Vale v. Louisiana, 399 U.S. 30, 90

S.Ct. 1969, 26 L.Ed. 2d 409 (1970). Therefore, none of the

reasons advanced by the petitioner are sufficient to warrant

this Court granting a writ of certiorari to the Supreme Court

of New Jersey. |

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QUESTION PRESENTED

1. Whether there existed probable cause for the arrest

leading to the warrantless search that produced the evidence

on which the conviction rests?

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CONSTITUTIONAL PROVISIONS INVOLVED

The respondent accepts the statement of constitutional

provisions involved as set forth in the pro se petition.

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STATEMENT

The petitioners were indicted for the unlawful sale of a

narcotic drug (heroin) contrary to the provisions of N.J.S.A.

24:18—4. Each was sentenced 12 to 15 years in State Prison.

Petitioner Tonsul was also convicted of unlawful possession of

a narcotic drug (heroin), contrary to the provisions of N.J.S.A.

24:18—4, and received a consecutive sentence of 5 to 7 years

in State Prison.

Prior to trial, the petitioners’ motion to suppress evidence

was denied by the Honorable Samuel A. Colarusso, J.C.C. On

February 22, 1971, the Appellate Division of the New Jersey

Superior Court affirmed petitioners’ convictions. Thereafter,

on June 1, 1971, the New Jersey Supreme Court denied

petitioners’ petition for certification.

At the trial, the State introduced testimony by Detective

Arthur Gockeler and Detective McKinley Jackson of the

Narcotics Squad that they had a stake-out at 66 Mercer Street

in Newark. (T19-21). Detective Gockeler testified he observed

petitioner John L. Irving talking to various persons near the

premises and accepting money from them and then going into

No. 66 Mercer Street. Detective Gockeler testified that Irving

On Occasion tapped on a window and on another occasion

calie’ into a window. The two detectives later entered the

building and from the second floor landing hid themselves and

observed Irving and a woman at the front door of 66 Mercer

Street. (T26-27). The female entered the building, tapped on

the door and passed money through a cra-k in the door

receiving a small glassine envelope. The female left the building

and a short while later the detective followed her. She was

arrested and the envelope was confiscated by the officer.

(T29-3). The officers returned to 66 Mercer Street, smashed

down the first floor apartment door and seized petitioner

Charles H. Tonsul inside the apartment. The officers testified

that they confiscated a large plastic bag which was found to

contain glassine envelopes.

Testimony of the police chemist was introduced regarding

the envelopes which were seized from Tonsul and Gertrude

Gilliam. The police chemist testified that they were positive

for heroin. (T14-10).

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REASONS WHY WRIT SHOULD NOT BE GRANTED

. POINT I

THE ARREST AND SEIZURE DID NOT VIOLATE

PETITIONERS’ FOURTH AMENDMENT RIGHTS.

The issue in the case sub judice is whether there was

probable cause for the arrest leading to the warrantless search

that produced the evidence on which the conviction rests.

The general rule in New Jersey is that a peace officer has

authority to arrest without a warrant when he has probable

cause to believe a crime punishable for more than one year has

been committed. State v. Macuk, 57 NJ. 1, 4 (1970). Probable

cause has never been precisely defined. As the New Jersey

Supreme Court said in State v. Davis, 50 N.J. 16, 23-24

(1967), certiorari denied in 389 U.S. 1054 (1968):

It is something less than proof needed to convict and

something more than a raw, unsupported suspicion.

It is a suspicion (or belief) of guilt that is ‘well

grounded’. State v. Burnette, 42 NJ. 377, 387

(1964): State v. Contursi, 44 NJ. 422, 429-430

(1965). The emphasis is upon a practical, realistic

view Of law enforcement in recognition of the

primacy of the individual’s right to be safe from

attack.

Thus, Beck v. State of Ohio, 379 U.S. 89, 91, 85

S.Ct. 223, 13 L.Ed. 2d 142, 145 (1964), repeats

from Brinegar v. United States, 338 U.S. 160, 176,

69 S.Ct. 1302, 93 L.Ed. 1879, 1891 (1949), that the

rule of probable cause is ‘a practical, nontechnical,

conception’ designed to afford ‘the best compromise

that has been found for accommodating * * * often

Opposing interest,’ and that

** * Requiring more would unduly hamper law

enforcement.

Moreover, when the validity of a search rests upon an arrest,

the lawfulness of the arrest is to be determined by reference to

state law insofar as it is not violative of the Federal Constt-

tution. Ker v. State of California, 374 U.S. 23, 37, 83 S.Ct.

1623, 1632, 10 L.Ed. 2d 726, 739-41 (1963).

With this guidance, the State submits that the facts sub

judice lead to the inescapable conclusion that the deteciives

had probable cause to arrest. Moreover, their forcible entry

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LOMAS PTI ME PE:

was reasonable police action under the circumstances. Ker,

supra; State v. Fair, 45 N.J. 77 (1965). Therefore, since the

arrest was legal and took place inside the apartment, the

seizure incidental thereto was reasonable police action under

the circumstances and did not violate Fourth Amendment

rights. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 1971, 26

L.Ed. 2d 409.(1970); Chimel v. California, 395 U.S. 752, 89

S.Ct. 2034, 23 L.Ed. 2d 685 (1969). See also State v. Fair,

supra, and State v. Allen, 113 N.J. Super. 245 (App. Div.

1970).

CONCLUSION

For the foregoing reasons it is respectfully submitted that

this petition for a writ of certiorari should be denied.

Respectfully submitted,

JOSEPH P. LORDI

ESSEX COUNTY PROSECUTOR

Davi P Ba

DAVID S. BAIME

ASSISTANT PROSECUTOR

CHIEF, APPELLATE SECTION

A. J. Fusco, Jr.

Legal Assistant