State v. BellState v. Bell
After trial by jury in the Hudson County Court, defendant was convicted of unlawful possession of narcotics in violation of R.S. 24:18-4. The narcotic, heroin in a glassine package, was found in the lower left hand lining of a coat allegedly belonging to defendant when he was searched at the precinct police headquarters to which he was taken after being placed under arrest. Defendant denies that the coat was his, but the jury‘s finding to the contrary is fully supported by the evidence.
On this appeal defendant argues that the evidence used against him was obtained by the police as a result of an unlawful search and seizure and that Judge Rosen, who heard defendant‘s pretrial motion to suppress that evidence but did not preside at the trial, erred in denying the motion. Defendant unsuccessfully attempted to renew the motion at the trial. The trial judge ruled, and properly so, that Judge Rosen‘s dеnial of the pretrial motion became the law of the case. State v. Fioravanti, 78 N.J. Super. 253 (App. Div. 1963). The alleged error in denying the pretrial motion is available to defendant as a ground of appeal оn the appeal from his conviction. Ibid., at p. 256.
In an oral opinion containing detailed findings of facts, Judge Rosen ruled that the search, although made without a search warrant, was lawful since it was incident to and followed a valid аrrest, citing United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 683 (1950). His findings of facts could reasonably have been reached on sufficient credible evidence present in the record; we may not disturb them. State v. Johnson, 42 N.J. 146, 162 (1964).
The testimony disclosed that on Seрtember 14, 1963, at about 2:50 A.M., Patrolmen Baxter and McCarthy of the Jersey City Police Department were in a patrol car in the vicinity of 14th and Erie Streets in downtown Jersey City, when they observed a 1956 Chеvrolet automobile traveling south on Erie Street, a one-way northbound street. The police gave chase, overtook the Chevrolet as it attempted to turn around at Erie and 13th Streets, and ordered the vehicle to the curb. Six men were in the Chevrolet. Patrolman Baxter testified:
“[I] proceeded to check the driver-license and registration. I ordered the driver out of the vehicle and there were five other occupants in the vehicle and they were moving around so for safety‘s sake, being there was just myself there at the present timе — my partner was at the radio car yet — I ordered all the men out.”
When asked on cross-examination his reasons for ordering the men out of the car, he replied,
“Safety factors, sir. I had six men stopped. I‘m by myself. I have my partner in the rear of me. I can‘t observe six men when they‘re in a confined place, so for safety practices so I don‘t get my fool heаd blown off, when I stop a vehicle loaded with six men, I request everybody to get out of the car so that I can watch them.”
Baxter further testified that when he stopped the vehicle, he placed the driver under arrest for the motor vehicle violation but did not then arrest any of the other men.
Colucci testified thаt when he and his partner arrived at the scene, the six men were against the wall; he checked the general area around the vehicle and, on the roadway, directly below thе right rear window of the vehicle, he found “a needle, a — like a cap that was burnt on the bottom — that was wrapped in tinfoil,” and a package in a glassine case with white powdеr in it. Colucci, who had made “numerous arrests of narcotics men,” recognized what he found as “the equipment that they use to take their own shot.” At that point all six men were placed under arrest. The detectives then searched the auto and found another glassine package containing heroin under the rear seat. The six men were taken to the Second Precinct Police Station where they were searched.
Defendant contends that he was arrested when the automobile was stopped and he was compelled to get оut and line up against the wall; that there was no probable cause for arresting him at that time and that, therefore, the search thereafter made violated his constitutional rights. On the оther hand, the State contends that no arrest of the defendant took place until after the detectives had found the narcotic equipment and glassine package on thе roadway directly below the right rear window of the automobile. If that be so, then the arrest and the search which followed were lawful since at that time the officers had probable cause to believe that an offense had been committed. State v. Smith, 37 N.J. 481, 495 (1962).
The basic issue therefore is, when did the arrest take place? Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); 2 Underhill, Criminal Evidence
There is no absolute test as to when an arrest occurs. The action of the police officer must be evaluated in the context of the circumstances in which it takes place. Rios v. United States, supra; State v. Romeo, 43 N.J. 188, 205 (1964); cf. State v. Doyle, 42 N.J. 334 (1964); State v. Contursi, 44 N.J. 422, 433 (1965). Indeed, even the use of formal language of arrest is not conclusive on this issue. State v. Romeo, supra, at p. 206.
Not every detention is an arrest. State v. Romeo, supra, at p. 206; Rios v. United States, supra. Nor does Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), hold to the contrary. There the “prosecution conceded * * * that the arrest took place when the federal agents stopped the car,” and the majority of the court was of the same view “on the facts of this particular case” (80 S.Ct., at p. 171). In Henry there was no justification for stopping the car unlеss the officers then had probable cause to believe that a crime had been committed and, on the facts of the case, the court found that they did not have such probаble cause.
Here, however, the police were authorized to stop the car and to arrest the driver because of the violation of the Motor Vehicle Act which thеy observed.
In Busby a police оfficer who had received a call about suspicious men in an automobile followed the automobile and then stopped it because the light over the license plate was out. Another policeman joined him and directed the three men in the automobile to step out. When the doors opened, the dome light went on and the policeman observed a sawed-off shotgun in the car. The court held that there had not been an arrest until after the shotgun was seen, saying:
“Certainly not every police practice constitutes an аrrest or search. * * * Considering the hour of the morning, the information received and all the surrounding circumstances, the officers were perfectly justified in making inquiries of the appellants and in asking them to step out of the automobile. These actions appear to have been proper police practice under the circumstances, and cеrtainly this routine investigation did not constitute an arrest or search.” (296 F.2d, at p. 331)
Further, the continued detention of the six men until the arrival of the detectives was fully warranted by the suspicions aroused in a police officer familiar with equipment used by narcotic addicts when he observed the eye dropper on the back seat of the automobile when its occupants left it.
As the court said in State v. Hope, 85 N.J. Super. 551 (App. Div. 1964):
“A law enforcement officer has the right to stop and question a person found in circumstances suggestive of the possibility of violation of criminal law. Cf. State v. Taylor, 81 N.J. Super. 296, 312-313 (App. Div. 1963); People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32 (Ct. App. 1964); United States v. Vita, 294 F.2d 524, 530 (2 Cir. 1961). Such investigatory detention is not an arrest, `[a]nd the evidence needed to make the inquiry is not of the same degree or conclusiveness as that required for an arrest.’ Rivera, supra, 252 N.Y.S.2d, at p. 461, 201 N.E.2d, at p. 34.” (at p. 554)
Defendant also complains of the trial court‘s comments when a witness called by defendant appeared in court
The judgment of conviction is affirmed.