State v. Ortense

416 A.2d 971, 174 N.J. Super. 453

Opinion

174 N.J. Super. 453 (1980) 416 A.2d 971

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
VALENTINO ORTENSE, DEFENDANT-RESPONDENT.

Superior Court of New Jersey, Appellate Division.

Submitted June 2, 1980. Decided June 19, 1980.

James T. O'Halloran, Prosecutor of Hudson County, for the appellant (Lawrence H. Posner, Assistant Prosecutor, on the brief).

Abrams & Wofsy, for the respondent (Marshall J. Wofsy, on the brief).

Before Judges ALLCORN, MORGAN and FRANCIS.

The opinion of the court was delivered by ALLCORN, P.J.A.D.

Where, as in this cause, a search warrant is issued on the basis of a supporting affidavit that sets forth information both lawfully obtained and unlawfully obtained, and the lawfully obtained information in and of itself constitutes probable cause which would have justified issuance of the warrant apart from the tainted information, the evidence taken in execution of the warrant was properly seized and thus is not subject to suppression. Wong Sun v. U.S., 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963); Alderman v. U.S., 394 U.S. 165, 183, 89 S.Ct. 961, 972, 22 L.Ed.2d 176, 192 (1969); James v. U.S., 418 F.2d 1150, 1152 (D.C. Cir.1969); Howell v. Cupp, 427 F.2d 36 (9 Cir.1970).

Accordingly, the order of suppression is reversed and set aside.