Lead Opinion
The opinion of the court was delivered by
Defendant moved to suppress certain evidence as being the fruit of an unlawful search and his motion was denied in the trial court. We granted leave to appeal, and now reverse.
On January 23, 1969 two Westfield Police officers cruising in a patrol car saw a vehicle driving at a moderate speed through the business section of town. Because, they said, the driver was wearing gloves (note it was January); and because of the slow speed, and again because the two occupants, whom they did not recognize, appeared to be looking from' side to side, the officers became "suspicious” and trailed this vehicle at a distance. A short while later, the vehicle was stopped by the police who asked the driver for identification. He produced his driver’s license and registration card. Due to the ragged condition of the registration, the police were unable, they said, to read the entire license number, although thejr could make out the three letters and the first two of the three numbers, all of which matched the license plates. Only the final digit was in doubt. Moreover, the name and address of the owner and the physical description of the vehicle completely matched defendant
As noted, defendant moved to suppress the evidence thus seized on the ground that it was the fruit of an illegal search and seizure. The trial judge, in a rather extended oral opinion, found that the police had no probable cause to conduct a search, but further held that the gun was discovered as an incident to a lawful stopping and investigation and was therefore admissible. We might observe that there is nothing in the facts stated to be found by the trial judge which supports his conclusion.
The threshold question here is whether the “investigation” conducted by the police officer was or was not a “search” so as to require a search warrant, an attendant valid arrest, or
It is, of course, well established that the fruits of an unconstitutional — i. e., legally “unreasonable” — search and seizure must be suppressed at any later criminal proceding. Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). However, N. J. S. A. 39:3-29 explicitly authorizes the police to stop vehicles at random and to demand the production of a driver’s license and a motor vehicle registration. Cf. N. J. S. A. 39:5-25; State v. Padavano, 81 N. J. Super. 321, 328 (App. Div. 1963). In State v. Kabayama, 98 N. J. Super. 85 (App. Div. 1967), aff’d o. b. 52 N. J. 507, the temporary stopping of automobiles for purposes of verifying ownership and driving credentials was held to be a valid and reasonable exercise of police power.
If contraband or weapons are visible from outside the vehicle, the observation of such evidence, absent a prior physical entry, does not constitute a “search” within the constitutional meaning. State v. Gosser, 50 N. J. 438, 447 (1967); State v. Griffin, 84 N. J. Super. 508, 517 (App. Div. 1964); Campbell v. United States, 110 U. S. App. D. C. 109, 289 F. Supp. 775 (D. C. Cir. 1961); United States v. Jankowski, 28 F. 2d 800, 802 (2 Cir. 1928); see also State v. Smith, 37 N. J. 481, 496 (1962); State v. Murphy, 85 N. J. Super. 391, 399 (App. Div. 1964), aff’d 45 N. J. 36 (1965); State v. Mark, 46 N. J. 262, 271-272 (1966).
Under the facts adduced below, the gun was not visible until the police further checked, out the interior of the vehicle. While N. J. S. A. 39:3-29 authorizes temporary detention to check the license and registration, it is apparent that the Westfield police exceeded a simple documentary check and were actually conducting a “search,” purportedly of limited intent. Indeed, the officer did not recognize the
The search of an automobile is not ipso facto lawful or unlawful, but the permissibility of such a search is grounded on a fundamental inquiry as to its constitutional “reasonableness.” Carroll v. United States, 267 U. S. 132, 147, 45 S. Ct. 280, 69 L. Ed. 543 (1925); Henry v. United States, 361 U. S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959); see also Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964); Annotation, “Lawfulness of Search of Motor Vehicle Following Arrest for Traffic Violation,” 10 A. L. R. 3d 314, 320 (1966). Moreover, the court must apply a eommonsense analysis in scrutinizing the activities of the police and the reasonableness of searches. State v. Miller, 47 N. J. 273, 278 (1966); State v. Gosser, above, 50 N. J. at 447; State v. Fioravanti, 46 N. J. 109, 122-123 (1965), cert. den. 384 U. S. 919, 86 S. Ct. 1365, 16 L. Ed. 2d 440 (1966).
As to probable cause, it is well established that the investigating officer must possess such information or suspicion as to warrant a man of reasonable caution to believe that an offense has been committed — something more than a mere incriminating inkling and less than absolute proof.
Ordinarily, an apprehension for a traffic violation will not justify a search except as to related matters — i. e., search of drunken driver’s car for liquor-evidence. State v. Cusick, 110 N. J. Super. 149 (App. Div. 1970), State v. Scanlon, 84 N. J. Super. 427, 434 (App. Div. 1964); State v. Boykins, above, 50 N. J. at 77; see also United States v. Tate, 209 F. Supp. 762 (D. C. Del. 1962). However, the police may search for proof of ownership where such proof is not satisfactorily produced by the driver. State v. Boykins, above, 50 N. J. at 77. It is tangentially material, in adjudging if the police had genuine probable cause to conduct the search, whether or not the citizen is arrested or prosecuted for the initial suspected offense. See State v. Taylor, above, 81 N. J. Super. at 309.
In the instant case the trial judge found that the police had no probable cause, as such, for the search. Given the minor “discrepancy” on the ragged registration, the long period of detention, and the utter lack of indicia of guilt, it is clear that the police did, in fact, have no probable cause to suspect an offense so as to independently validate the consequent search.
It is, of course, firmly settled that the police may search a car as an incident to a valid arrest. State v. Fioravanti, above, 46 N. J. at 122; Ker v. California, 374 U. S. 23, 41, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). More
In sum, defendant argues that the “search” was not “reasonable” in constitutional terms and that the evidence must thereby be suppressed. The State contends that the stopping was valid, that there was no “arrest,” that the finding of the weapon, in plain view, was wholly adventitious, and that, in any event, the circumstances surrounding the
Certainly, the statute empowers the police to stop a vehicle and to examine the driver and ownership documents; and given some difficulties arising from such an investigation, further detention is plainly warranted without making an actual arrest. However, it cannot have been intended by the Legislature’that this detention power was to extend indefinitely, particularly where, as here, the driver’s license checked with the registration, the description of the car on the registration matched the vehicle, the serial number almost completely matched the license plate except for one unclear number, and the police had verified the ownership of the car with Trenton.
Finally, since the search was so remote from the time of the initial stopping and not coincident with any “arrest” or even palpable suspicion, the plausibility of a self-protective search is minimized.
We conclude that the original stopping was valid under the'express powers of the statute, N. J. S. A. 39:3-29, but the extended time of the detention without reasonable cause created an actual, if not technical, arrest. Thus, absent probable cause, a search incident to this invalid arrest was constitutionally unreasonable and the evidence should have been suppressed.
We do not hold that all prolonged detentions are “arrests,” but rather that, limited to the particular facts of this case, an extended stopping becomes an invalid arrest or at the very least exceeds the bounds of power granted by the detention statute. Accordingly, without passing on the relatively implausible factual reconstruction of the incident propounded by the prosecution, we find the detention and the resultant search “unreasonable” under the attendant circumstances.
Reversed.
Dissenting Opinion
(dissenting). My reading of the record leads to a conclusion that the denial of the motion to suppress should be affirmed.
Significantly, there had been a rash of robberies in the neighborhood wherein the instant automobile was seen by Patrol Officers Coles and Crosby at 10:45 p.m. traveling about 15 in.p.h. in a 25 m.p.h. zone. The officers testified that they became suspicious when they observed that the passenger was wearing “A hat similar to the type that’s been teletyped to our headquarters that’s been involved in many robberies that have been hitting different motels in our area.” The vehicle had stopped at one point “for about a minute,” and “Both occupants looked side to side. You could see their heads moving side to side on opposite sides of the street as they proceeded down Central Avenue.” The vehicle was followed by the officers for about five blocks through the business district, and then they halted it for a routine check and requested the operator to produce his driver’s license and registration. The registration card was “rather tattered,” and somewhat blurred by “battery acid.” All the figures thereon were not discernible; this engendered suspicion that the vehicle may have been stolen.
The entire series of events that followed, which are chronologized in the majority opinion, took about half an hour — in my view, not an unreasonable length of time.
The trial judge after observing the registration card found “some very serious discrepancies.” He not only found one number confusing, but found the second number obliterated to a degree that he could not be sure of its identity and the first letter to be quite indistinct. He concluded, “good police work required further investigation.” After examining that exhibit I agree with the trial judge.
At police headquarters defendant’s ownership of “such a ear” was verified “from Trenton,” whereupon Lieutenant Mormelo requested Officers Coles and Crosby to take defendant back to the vehicle and to make certain that the
This additional precaution in the circumstances, as a final measure of satisfaction before closing the matter, was competent police practice. To do anything less would have rendered the officers derelict in their duty, and for this court to suppress the evidence validly seized by a policeman in the course of performing that responsibility would “unduly hamper law enforcement.” See State v. Boykins, 50 N. J. 73, 82 (1967); State v. Kabayama, 98 N. J. Super. 85, 88 (App. Div. 1967), aff'd o.b. 52 N. J. 507 (1968). The rationale of Boykins has recently been reflected in Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).
“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U. S. 234, 236, 88 S. Ct. 992, 993, 19 L. Ed. 2d 1067, 1069 (1968); State v. Bell, 55 N. J. 239, 248 (1970); State v. Hock, 54 N. J. 526, 533-535 (1969); State v. DiRienzo, 53 N. J. 360, 385 (1969); State v. McKnight, 52 N. J. 35, 57-58 (1968). Accord, Annotation 10 A. L. R. 3d 314, 349 (1966); United States v. Thompson, 420 F. 2d 536, 540 (3 Cir. 1970); State v. Lowry, 95 N. J. Super. 307, 325 (Law Div. 1967).
Clearly, too, the assaying of the credibility of the police officers was for the trial judge. United States v. Carlson, 359 F. 2d 592, 597 (3 Cir.), cert. den. Bonomo v. United States, 385 U. S. 879, 87 S. Ct. 161, 17 L. Ed. 2d 106 (1966); State v. Johnson, 42 N. J. 146, 161 (1964). Thus, this court should not disturb the finding that when the police officers returned to the vehicle by direction of their superior, “there was no intent to make a search other than to establish proper registration,” and while leaning over to read the serial number on the forward door post of the automobile Officer Crosby observed the barrel of a sawed-off shotgun in the car.
Accordingly, I respectfully vote to affirm.