STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOHN J. CUSICK, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Before Judges GOLDMANN, LEWIS and MATTHEWS.
Mr. Arnold B. Levin, Assistant Prosecutor, argued the cause for appellant (Mr. Vincent P. Keuper, Monmouth County Prosecutor, attorney).
Mr. Philip J. Blanda, Jr. argued the cause for respondent (Messrs. Blanda and Blanda, attorneys).
*150 Thе opinion of the court was delivered by GOLDMANN, P.J.A.D.
The State, pursuant to leave granted, appeals from a County Court order granting defendant's motion to suppress evidence because obtainеd without a warrant.
At about 1 A.M. Officer Moon was on patrol duty when defendant passed him, driving at a high rate оf speed westbound on Route 36 in Middletown Township. The officer immediately took up pursuit and clocked defendant travelling at 73 m.p.h. in a 50-mile speed zone. Defendant's vehicle changed lanes thrеe times without signalling, weaved slightly, rode the white dotted line separating the lanes, and nearly hit anothеr car by cutting in front of it. Moon finally stopped defendant's vehicle some three miles after first obsеrving it and asked defendant to exhibit his driver's license and vehicle registration. He produced a prоper registration, but the driver's license exhibited by him had expired. Moon testified that defendant's speеch was slurred, he had a strong odor of alcohol on his breath, and swayed from side to side as he stood on the highway while Moon examined the license and registration. Moon placed defendant under arrest for driving while under the influence of alcohol, a violation of N.J.S.A. 39:4-50(a). Officer Mulvey arrived on the scene and, while he stood with defendant, Moon searched defendant's car for any bottle of liquor from which defendant might have been drinking. In the course of doing so he found a revolver underneаth the driver's seat.
In response to questions put on cross-examination, Moon said defendant had bеen courteous, made no menacing gestures, was polite and cooperative, and willingly рroduced the driver's license and registration.
In granting defendant's motion to suppress, the judge said that he did not think there was any reasonable ground to suspect there would be a bottle in the car and sо no ground for a warrantless search.
The State thereafter moved for a rehearing. The motion was denied and the earlier decision reaffirmed. In the course *151 of the colloquy the judge observed that driving while under the influence of alcohol was not a crime, liquor was not contraband, and the search was not one for an object which might be dangerous to the arresting officer.
The constitutional guarantee against warrantless searches and seizures, which finds expression in the Fourth Amendmеnt to the United States Constitution, embodies the test of reasonableness. It is only the unreasonable search and seizure that is condemned. State v. Carter, 54 N.J. 436, 448 (1969). In our view, there was probable cause to justify Officer Moоn's arresting defendant for drunken driving, and the subsequent search did not violate the Fourth Amendment.
Although drunken driving is not a сrime, it is a serious traffic offense. We hold that it is not unconstitutional for a police officer tо search for alcohol as an incident to an arrest for drunken driving. In State v. Boykins, 50 N.J. 73 (1967), Chief Justice Weintraub, by way of dictum, held reasonable a seаrch for intoxicating liquor following an arrest for driving while under the influence of alcohol. He said:
Surely nоt every traffic violation will justify a search of every part of the vehicle. See, generally, аnnotation, 10 A.L.R.3d 314 (1966). A traffic violation as such will justify a search for things related to it. So, for example, if the оperator is unable to produce proof of registration, the officer may search thе car for evidence of ownership. People v. Prochnau, [
Cf. State v. Campbell, 53 N.J. 230, 233-237 (1969); and see Annotation, 10 A.L.R.3d 314, 332 (1966); United States v. Thompson, 420 F.2d 536, 540-541 (3 Cir.1970).
*152 Although a search is not justified as an incident to every traffic violation, State v. Boykins, above, it is clear that a search is justified in those instances where its purpose is to gather things connected or related to the traffic violation for which the аrrest was made. A search of a car where the driver was arrested for a faulty directional signаl would be unreasonable; however, a search for intoxicating liquor incidental to a justifiable аrrest for drunken driving is reasonable, for such a search is directed towards and may in fact produce evidence related to the offense for which the arrest was made.
Reversed and remanded for a full trial.
MATTHEWS, J.A.D. (concurring).
The presence оf intoxicating liquor in a motor vehicle is not a violation of any law, nor is such liquor contraband in this State. Considering the provisions of N.J.S.A. 39:4-50.1 through 39:4-50.5, the presence or absence of an intoxicating beverаge in a motor vehicle, when a motorist is stopped by the police for apparent оperation while under the influence of liquor, as was the case here, is immaterial to subsequent proof of the charge. Intoxication may be established by lay evidence. State v. Pichadou, 34 N.J. Super. 177, 180 (App. Div. 1955); State v. Burger, 74 N.J. Super. 208, 214 (App. Div. 1962). In view of the obiter quoted from State v. Boykins, 50 N.J. 73, 77 (1967), however, I find myself obliged to concur. Cf. Carianni v. Schwenker, 38 N.J. Super. 350, 359 (App. Div. 1955).