STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. DONALD ALSTON, JAMES BARNES, HARRY WILLIAMS AND ABDULLAH KHALIQ, A/K/A ERNEST CAULFIELD, A/K/A ERNEST COFIELD, DEFENDANTS-RESPONDENTS.
Supreme Court of New Jersey
Argued January 28, 1981—Decided October 21, 1981.
211
Susan Heller Fessler, Assistаnt Deputy Public Defender, argued the cause for respondents (Stanley C. Van Ness, Public Defender, attorney).
Debra L. Stone, Deputy Attorney General, argued the cause for amicus curiae, Attorney General (John J. Degnan, Attorney General of New Jersey, attorney).
The opinion of the Court was delivered by
CLIFFORD, J.
I
On the night of October 23, 1978 Bergen County Police Detectives Marc Fenech and John Schmidig, stationed in an unmarked patrol car, pursued a Buick automobile speeding westbound on Route 46 in Ridgefield Park. During the chase the officers observed three of the four occupants moving about in the vehicle as if attempting to conceal something. After they succeeded in stopping the Buick, the detectives asked the driver for vehicle credentials, whereupon Alston opened the glove compartment, removed a large envelope, and began looking through its contents. Detective Schmidig then shone his flashlight into the open glove compartment and observed three shotgun shells. The four men were asked to exit from the vehicle. The officers patted them down for weapons but found none on their persons. Detective Fenech then returned to the Buick to retrieve the shotgun shells while his partner remained at the rear of the car with the four occupants.
Detective Fenech opened the front passenger door of the vehicle, reached into the open glove compartment and took the shells. In the process, Fenech observed an opaque plastic bag
After the weapons had been removed, the contents of the vehicle were inventoried and the vehicle itself towed from the scene. The four defendants were taken to police headquarters and charged under
The trial court granted defendants’ motions to suppress the three weapons obtained in the warrantless search of the car.1 On appeal the Appellate Division reversed the trial court‘s order suppressing the shotgun found under the front seat, but affirmed the suppression of the two revolvers seized after defendants had been placed under arrest. In regard to the shotgun the court below held that “once the officers observed the live shotgun shells, reasonable precautions for their own safety justified their ordering defendants out of the car, looking into it cursorily and unwrapping the object observed protruding from under the seat which had the appearance of being a firearm,”
We granted the State‘s motion for leave to appeal the Appellate Division‘s affirmance of the trial court order suppressing the two revolvers, but denied the defendants’ cross-motion for leave to appeal the reversal of the order suppressing the shotgun. Therefore, this appeal involves only the State‘s challenge to the suppression of the two handguns, the fruits of the post-arrest search. Because we find that the officers conducted a valid automobile search, we now reverse and remand for trial.
II
As a preliminary matter the Attorney General, as amicus curiae, argues that the defendants lacked the legitimate or reasonable expectation of privacy in the particular areas of the vehicle searched necessary to confer “standing” to challenge the warrantless search as a violation of personal rights under the Fourth Amendment.2 There is some debate over whether the
Relying on the recent Supreme Court decisions in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), and United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the State argues that defendants Barnes, Williams and Khaliq, as mere passengers in an automobile not owned by them, had no standing to challenge the legality of the search of the vehicle, despite any ownership or possessory interest in the weapons seized. As to defendant Alston, the driver of the vehicle and the son of its owner, the State urges that although he may have legitimately possessed the car, the totality of the circumstances does not suggest that he entertained a reasonable expectation of privacy in the particular areas of the vehicle searched.
The underlying facts of Rakas v. Illinois, supra, are not unlike those of the present appeal. In Rakas, the defendants were passengers in an automobile stopped on an open highway searched by law enforcement officials without a warrant. The officers in that case, however, stopped the vehicle on information that it may have been an instrumentality in the commission of an armed rоbbery. The search in Rakas, conducted after
In reviewing the case on certiorari, the Supreme Court noted that “Fourth Amendment rights are personal rights which * * * may not be vicariously asserted.” 439 U.S. at 133-34, 99 S.Ct. at 425, 58 L.Ed.2d at 394-95. Thus, a motion to suppress evidence obtained in violation of the Fourth Amendment may be successfully brought only by those persons whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of the incriminating evidence obtained in the search. Id.; see Alderman v. United States, 394 U.S. 165, 171-72, 89 S.Ct. 961, 965, 22 L.Ed.2d 176, 185-86 (1969). The Court then set forth the appropriate inquiry under its substantive Fourth Amendment doctrine, see supra at 84 n. 2:
[T]he question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect. [439 U.S. at 140, 99 S.Ct. at 429, 58 L.Ed.2d at 399.]
Relying on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), a case involving a prosecution for certain possessory offenses, the petitioners in Rakas claimed that as passengers occupying the automobile searched, they had standing to contest the legality of the search because they were “legitimately on [the] premises” where the search occurred. 439 U.S. at 142, 99 S.Ct. at 429, 58 L.Ed.2d at 399-400. Jones, the leading case on the standing issue prior to Rakas, had posited two tests for determination of Fourth Amendment standing. The first was the rule of “automatic standing” in cases where an
However, the Rakas Court abandoned Jones‘s “legitimately on the premises” standard as the determinative factor in conferring standing because it “creates too broad a gauge for measurement of Fourth Amendment rights.” 439 U.S. at 142, 99 S.Ct. at 429, 58 L.Ed.2d at 400.5 Instead the Court applied the “legitimate expectation of privacy” analysis of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which asked whether the area searched was one in which the movant had a legitimate expectation of privacy in the sense of freedom from governmental intrusion. Employing that approach in Rakas the Court rejected the petitioners’ claims, concluding that they fаiled to assert a property or possessory interest in either the automobile searched or the property seized, and the circumstances failed to demonstrate that petitioners could have legitimately
Just as Rakas, supra, had done away with Jones‘s “legitimately on the premises” standard, Salvucci delivered the final blow to the “automatic standing” rule.6 In Salvucci defendants were charged in a multi-count federal indictment with unlawful possession of stolen mail. The evidence that formed the basis of the indictment had been seized by police during the search, pursuant to a warrant, of an apartment leased by one defendant‘s mother. The defendants were successful in their motion to suppress, the district court holding that the affidavit supporting the search warrant application was deficient. The First Circuit affirmed, holding preliminarily that respondents, charged with unlawful possession of the evidence seized, were entitled to assert “automatic standing” to challenge the search and seizure under Jones. See United States v. Salvucci, 599 F.2d 1094, (1st Cir. 1979).
The Supreme Court reversed and remanded, overruling the Jones rule of “automatic standing.” 448 U.S. at 86, 100 S.Ct. at 2550,
In addition, the Court was not disturbed by the notion that without the Jones rule, the prosecution would be allowed the advantage of asserting contradictory positions: that the defendant possessed the contraband property for the purposes of proving criminal liability, but that he had insufficient possessory interest in the property for the purposes of defending the legality of the search and seizure. Id. The Salvucci Court stated flatly that “a prosecutor may simultaneously maintain that a defendant criminally possessed the seized goods, but was not subject to a Fourth Amendment deprivation, without legal contradiction.” Id. at 90, 100 S.Ct. at 2552, 65 L.Ed.2d at 627. The Court reasoned that since its holdings in Rakas and Salvucci established that possession of seized property is not sufficient to confer Fourth Amendment standing, it was no longer true that the same possession both convicts and confers standing. Id.
Salvucci‘s holding that possession of the property seized is not sufficient to confer standing even to defendants charged with possession of the seized property at the time of the search was fortified by the Court‘s decision in the companion case of Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).
The Supreme Court upheld the denial of defendant‘s suppression motion and subsequent conviction, concluding that defendant had failed to show that he had a legitimate expectation of privacy in the purse of a casual acquaintance. Moreover, the Rawlings Court reiterated the view espoused in Rakas and Salvucci that even the assertion of ownership of the property seized is not sufficient to confer Fourth Amendment standing unless the defendant satisfies the burden of proving that he had a legitimate expectation of privacy in the place searched.
Taken together, the Supreme Court‘s decisions in Rakas, Salvucci and Rawlings make clear that under the federal law of search and seizure, standing to challenge the prosecutorial use of evidence obtained in violation of the Fourth Amendment is not enjoyed by a mere passenger in a searched automobile even if he alleges ownership of the property seized. See, e.g., United States v. Whitfield, 629 F.2d 136, 139 n. 4 (D.C.Cir.1980). In the context of the present case, it would appear that nothing short of ownership of, some possessory interest in, or control over the vehicle searched would be sufficient to confer standing on automobile passengers under Rakas, Salvucci and Rawlings, even if the passenger is charged with unlawfully possessing the seized property at the time of an unconstitutional search and seizure.
Earlier this term we recognized that in the appropriate situation our State Constitution may independently furnish a basis for protecting personal rights when it is not clear that the guarantees of the federal Constitution would serve to grant that same level of protection. See State v. Schmid, 84 N.J. 535, 553-60 (1980). That this basic principle of Ameriсan federalism confers upon this Court the power to afford the citizens of this State greater protection against unreasonable searches and seizures than may be required by the Supreme Court‘s interpretation of the Fourth Amendment is beyond question. State v. Johnson, 68 N.J. 349, 353 (1975); see State v. Catania, 85 N.J. 418, 436-39 (1981); State v. Carpentieri, 82 N.J. 546, 572-73 (1980) (Pashman, J., dissenting); State v. Baker, 81 N.J. 99, 112, 405 A.2d 368 (1979); State v. Ercolano, 79 N.J. 25, 49 (1979); State v. Slockbower, 79 N.J. 1, 4 & n. 2 (1979); State v. Vinegra, 73 N.J. 484, 506 (1977) (Hughes, C. J., dissenting); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, (1977).7 Writing for this Court in State v. Johnson, supra, Justice Sullivan observed that although Article I, paragraph 7 of the New Jersey Constitution of 1947 is taken almost verbatim from the Fourth Amendment, “we have the right to construe our State constitutional provision [prohibiting unreasonable searches and seizures] in accordance with what we conceive to be its plain meaning.” 68 N.J. at 353 n.2.
As indicated heretofore, Rakas, Salvucci and Rawlings deny Fourth Amendment standing to any movant who fails to demonstrate a reasonable expectation of privacy in the particular area searched, even where the movant is the owner or legitimate possessor of the property seized. See, e.g., United States v. Medina-Verdugo, 637 F.2d 649, 652 (9th Cir. 1980);
Adherence to the vague “legitimate expectation of privacy” standard, subject as it is to the potential for inconsistent and capricious application, will in many instances produce results contrary to commonly held and accepted expectations of privacy. See Allen & Schaeffer, Great Expectations: Privacy Rights in Automobiles, 34 U.Miami L. Rev. 99, 127 (1979). Moreover, we are concerned that the results thus attained will not infrequently run contrary to a fundamental principle rooted in Article I, paragraph 7 of the New Jersey Constitution. That paragraph protects “the right of the people to be secure in their persons,
Legitimate expectations of privacy are those that flow from some connection with or relation to the place or property to be searched. A determination of “legitimacy” turns upon a nexus with the property searched or seized. Although the primary purpose of the рrohibition against unreasonable searches is protection of privacy rather than property, nevertheless it serves the purposes of clarity to emphasize an accused‘s relationship to property rather than to attempt a definition of
More significantly, in cases where the defendant is charged with an offense in which possession of the seized evidence at the time of the contested search is an еssential element of guilt, we retain the “automatic standing” rule of Jones v. United States, supra, for purposes of that search under the state Constitution, despite the rejection of that rule by the Supreme Court in Salvucci and Rawlings. Mindful of our responsibility for making rules affecting the administration of criminal justice in the courts of this State, we find the Supreme Court‘s grounds for abandoning the Jones rule of standing unpersuasive. Rather, we believe that
[t]he automatic standing rule is a salutary one which protects the rights of defendants and eliminates the wasteful requirement of making a preliminary showing of standing in pretrial proceedings involving possessory offenses, where the charge itself alleges an interest sufficient to support a Fourth Amendment claim. [Salvucci, supra, 448 U.S. at 97, 100 S.Ct. at 2556, 65 L.Ed.2d at 632 (Marshall, J., dissenting).]
Accordingly, when the charge against defendant includes an allegation of a possessory interest in property seized such as would confer standing, under the traditional test we retain today, to object to prosecutorial use of evidence obtained in an unlawful search and seizure, the defendant has automatic standing to bring a suppressiоn motion under R. 3:5-7, as “a
In the present case application of the Jones rule of automatic standing as to all four defendants is appropriate. They were charged with unlawful possession of the three firearms obtained by Detectives Fenech and Schmidig as a result of the challenged search and seizure of the automobile they occupied. See State v. Humphreys, 54 N.J. 406 (1969), in which this Court, in upholding the constitutionality of
[a]lthough it is no doubt true that more than one individual can “possess” an item within the meaning of
N.J.S.A. 2A:151-41 , even if one of [appellant‘s] two codefendants were in exclusive possession of the weapon, concealed on his person or in the automobile, [appellant] would still share criminal responsibility for the possession of the weapon if it could be reasonably inferred that he knew of the existence of the gun and was a knowing participant in the criminal mission.
See Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), holding not violative of due process the application of a New York statutory presumption similar to that found in
V
Turning to the merits of defendants’ challenge to the search, it is well settled that any warrantless search is prima facie invalid and gains validity only if it comes within one of the specific exceptions created by the Supreme Court. See, e. g., State v. Young, 87 N.J. at 132, 141-42,; State v. Welsh, 84 N.J. 346, 352 (1980); State v. Patino, 83 N.J. 1, 7 (1980). The requirement that a search warrant be obtained before evidence may be seized is not lightly to be dispensed with, and the burden is on the State, as the party seeking to validate a warrantless search, to bring it within one of those recognized exceptions. Welsh, supra, 84 N.J. at 352; Patino, supra, 83 N.J. at 7; State v. Sims, 75 N.J. 337, 352 (1978).
In the instant case the State claims that the “automobile exception to the Warrant Clause, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), validates the warrantless search that led to the seizure of the two handguns, or alternatively that the search was incident to a lawful arrest for possession of the sawed-off shotgun, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), reh. den., 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969).
The automobile exception, first articulated in Carroll v. United States, supra, holds a search warrant unnecessary when the police stop an аutomobile on the highway and have probable cause to believe that it contains contraband or evidence of a
As stated by the Supreme Court in Chambers, supra, probable cause is the minimal requirement for a constitutionally reasonable search of a readily movable vehicle stopped on the highway. 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 438. See Patino, supra, 83 N.J. at 10, State v. Waltz, 61 N.J. 83, 87 (1980). “Probable cause is more than bare suspicion but less than legal evidence necessary to convict.” Patino, supra, 83 N.J. at 10. It has been defined by this Court as a “well grounded suspicion” that a crime has been or is being committed. Id.; State v. Waltz, supra, 61 N.J. at 87; State v. Burnett, 42 N.J. 377, 387 (1964).
Defendants argue that probable cause notwithstanding, a warrant was necessary for further search of the passenger compartment, for once they were removed from the vehicle and arrested, the car was not readily movable nor was it impracticable to secure a warrant. The Appellate Division agreed, holding that our decision in State v. Ercolano, supra, compels the conclusion that once the occupants are removed from the vehicle and placed under custodial arrest, there are no longer any exigent or exceptional circumstances justifying the warrantless search of the vehicle. The court below held that under these circumstances, Ercolano requires the police to seize and temporarily retain custody of the vehicle for the time necessary to secure a warrant from a neutral magistrate rather than conduct an immеdiate search at the scene of the stop.
Finally, defendants’ argument and the Appellate Division‘s holding misconstrue the level of “exigent circumstances” that need be shown in order for the probable cause determination of the police to suffice as authorization for the search. According to Chambers, supra, the exigent circumstances that justify the invocation of the automobile exception are the un-foreseeability and spontaneity of the circumstances giving rise to probable cause, 399 U.S. at 50-51, 90 S.Ct. at 1980-81, 26 L.Ed.2d at 428, and the inherent mobility of the automobile stopped on the highway. Id. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428. Because the exigency in Ercolano is distinguishable from that in
These exigent circumstances do not dissipate simply because the particular occupants of the vehicle may have been removed from the car, arrested, or otherwise restricted in their freedom of movement. See State v. Waltz, supra; State v. Sessions, supra, 172 N.J.Super. at 566. See also State v. Kahlon, 172 N.J.Super. 331, 340 (App.Div.1980). The characterization of ready mobility of the vehicle as envisioned by Chambers is applicable to the vehicle itself, and the car is readily movable until such time as it is seized, removed from the scene and securely impounded by the police. Until then it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it. Under Chambers, however, when therе is probable cause to conduct an immediate
Accordingly, the search of the vehicle that revealed the two handguns was justified as within the automobile exception to the warrant requirement.15 The weapons, therefore, were improperly suppressed.
Reversed and remanded.
SCHREIBER, J., concurring.
The majority has unnecessarily interpreted New Jersey‘s constitutional search and seizure provision so that it serves “to afford a windfall to defendants whose Fourth Amendment rights have not been violated.” United States v. Salvucci, 448
It has been well-settled that generally a person may not assert constitutional rights belonging to others. The Supreme Court has frequently articulated the rule that “[o]rdinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.” Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586, 1594 (1953). This principle would ordinarily be applicable to the constitutional search and seizure provision, whose core is a person‘s right to privacy. Professor LaFave asserts the rule in this fashion:
The fundamental inquiry regarding standing is that articulated in Mancusi [v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968)]: whether the conduct which the defendant wants to put in issue involved an intrusion into his reasonable expectation of privacy. [3 LaFave, Search and Seizure, § 11.3 at 544 (1978)]
Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176, 187 (1969); Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208, 214 (1973); Sim-mons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247, 1256 (1968).
An exception to the general rule developed in the search and seizure field because of the implications of a defendant‘s
The reason for the exception was later eliminated when it was held that the defendant‘s testimony on the motion to suppress was inadmissible at the subsequent trial. Simmons v. United States, supra. The defendant could then testify without endangering his
The majority also rejects the geographical aspect of privacy for it would extend the zone of privacy into locations where privacy does not legitimately exist. It seems to abhor the thought that a defendant who is the owner of the seized
No sound policy reasons have been advanced to demonstrate why New Jersey should not follow the lead of the Supreme Court in its interpretation of the
The focus of the exclusionary rule is deterrence of police misconduct. This judicial sanction is hinged not only upon whether there has been a
The bottom line of the majority‘s holding will be to suppress material, competent and credible evidence, even though a reasonable expectation of privacy does not exist, thereby inhibiting the jury‘s truth-seeking process and enabling the guilty to go free. See United States v. Ceccolini, 435 U.S. 268, 275, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268, 276 (1978); State v. Ingenito, 87 N.J. 204, 211 (1981)
Lastly, the majority misperceives the tests to be applied in determining the existence of an expectation of privacy. Substantively it was necessary for the defendants to show that they had a reasonable expectation of privacy with respect to the loaded revolvers after they left the car. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)4 (holding under similar circumstances that defendants madе no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they had been passengers). Whether there is a reasonable expectation of privacy calls for an objective evaluation. Have the search and seizure infringed upon an interest of the defendant that the
The facts in this case are illustrative. The vehicle driven by Alston was pursued and stopped by the police for speeding. When Alston openеd the glove compartment in search of his
Since the majority holds that there was probable cause for the search and seizure, I join in the judgment that the evidence, the two loaded revоlvers, was improperly suppressed. However, I cannot in good conscience agree with its impairment of the ethics of responsibility.
SCHREIBER, J., concurring in the result.
For reversal and remandment—Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER, HANDLER and POLLOCK—7.
For affirmance—None.