Lead Opinion
The opinion of the Court was delivered by
The Attorney General informs us in his brief:
One study of State Police officers killed nationwide in the line of duty from September 1976 to September 1982, shows that 40 percent of the troopers killed by gunfire were fatally wounded while making traffic stops.
Of such reality, Chief Justice Hughes spoke some years back:
Such continuing trends would make even more relevant today the prophetic warning of the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S.Ct. 1868,20 L.Ed.2d 889 (1968)] dealing with police exposure and apprehension of harm:
We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. * * *
* * * [W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. [State ex rel. H.B., 75 N.J. 243, 247,381 A.2d 759 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 23-24, 88 S.Ct. 1868, 1881,20 L.Ed.2d 889 , 907-08 (1968)).]
This case involves an application of the Terry principles in the context of a highway stop of a vehicle during which a police officer discovered drugs in the motorist’s car.
I
The principles that guide us are settled:
Certain fundamental propositions bear restatement at the outset. The Fourth Amendment to the United States Constitution requires the approval of an impartial judicial officer based on probable cause before most searches may be undertaken. E.g., Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428, reh. den., 400 U.S. 856, 91 S.Ct. 23,27 L.Ed.2d 94 (1970). The same holds true for Article 1, paragraph 7 of the New Jersey Constitution. State v. Ercolano, 79 N.J. 25, 41-42 [397 A.2d 1062 ] (1979), and cases cited therein. The warrant requirement of these provisions may be dispensed with in only a few narrowly circumscribed exceptions. The prima fade invalidity of any warrantless search is overcome only if that search falls*38 within one of the specific exceptions created by the United States Supreme Court. Ercolano, supra, 79 N.J. at 42 [397 A.2d 1062]. Where, as here, the State seeks to validate a warrantless search, it bears the burden of bringing it within one of those exceptions. State v. Sims, 75 N.J. 337, 352 [382 A.2d 638 ] (1978). [State v. Patino, 83 N.J. 1, 7,414 A.2d 1327 (1980).]
Because no warrant existed for the search, we must ask under which exception the search may be brought. The problem with this case, as with so many others, is that the search fits neatly into no category, although arguably fitting into several. It partakes of aspects of a “stop,” an intrusion less than a search or seizure, as well as a search. Each of these strands of search and seizure law must be considered.
This was not a search incident to an arrest of the recent occupant of an automobile as defined in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860,
Another recognized exception to the probable-cause requirement allows the police to “stop and frisk” when a police officer “has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest * * Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883,
In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Court upheld, without finding of probable cause, the brief detention or stop of the driver of a car outside his vehicle while the police officer issued a traffic summons. The Court reasoned that the detention involved only an incremental intrusion beyond an initial justified stop. The Court balanced that intrusion suffered by the individual against the heightened danger to the police officer in both dealing with people and automobiles and standing exposed to traffic. Id. at 111, 98 S.Ct. at 333, 54 L.Ed.2d at 337.
In New York v. Class, 475 U.S. 106, 106 S.Ct. 960,
Finally, in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469,
We may summarize the essence of these protective principles again in the words of Chief Justice Hughes:
“Our evaluation of the proper balance that has to be struck * * * leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” * * *
Accepting these rules as representing bedrock constitutional law, it remains to apply them to the factual base [of the case]. [State ex rel. H.B., supra, 75 N.J. at 248,381 A.2d 759 (quoting Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883,20 L.Ed.2d at 909 ).]
II
For purposes of the application of the stated principles to the facts of this case, we may accept generally the statement of facts set forth in the State’s Appellate Division brief.
As a result of his observation of these traffic offenses, the trooper signaled the driver to stop on the right shoulder of the Turnpike. The trooper then pulled directly behind defendants’ car. Before the trooper left his police vehicle, the driver turned around to his left side, toward the back seat, and reached toward the back seat. The trooper’s view did not allow him to see what the driver was doing. The trooper approached the passenger side of the vehicle, and as he did so, he saw a cotton windbreaker stuffed into the lower left-hand corner of the back seat in the vicinity of the movement that he had previously observed. He also saw an open travel bag on the rear seat, with a brown paper bag on top of it. The trooper requested the driver’s license and registration. The operator, who appeared nervous, produced a Massachusetts license and car-rental agreement but not a car registration. In the trooper’s words, the driver “would stop in mid-sentence, his voice was cracking, and [he was] just generally nervous.” Observing that the driver “kept looking toward the back seat slightly,” the trooper thought, based on his training and experience, that this display of nervousness was unusual for someone who had been stopped for a routine motor vehicle violation. The trooper himself had been shot during such a routine motor vehicle stop about a year before. He then asked the two occupants to step out, after
The driver and passenger were then ordered to stand to the right front of their vehicle and were watched by another trooper who in the interim had arrived on the scene. The first trooper returned to the car and removed the jacket. On removing the jacket, the trooper saw a white towel sticking out about five inches from the back seat. When he pulled at the towel, it did not move. He then reached into the crevice of the seat, felt a hard object, and reached “around the back seat” to remove that object, a large manila envelope. The officer said that based on his training and experience, he believed that the object in the envelope was a weapon or a controlled dangerous substance. When he opened the envelope he found another hard object inside — a yellow plastic wrapper around another clear plastic wrapper containing what the officer suspected to be, and has been admitted to be, a large quantity of cocaine.
A Middlesex County indictment charged both Lund and Harrison with possession of cocaine and possession of cocaine with intent to distribute. Each moved to suppress the evidence of the cocaine. The Law Division denied the motion, ruling that under Michigan v. Long, supra, 463 U.S. 1032, 103 S.Ct. 3469,
Ill
No one disputes that not every motor vehicle stop establishes the basis for a car search. The touchstone of decision obviously will be found in the facts of each case. Michigan v. Long, supra, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, illustrates the principle. Long establishes that officers must possess objective cause before intruding into constitutionally-protected areas. In Long, two sheriff’s deputies saw the defendant’s car traveling fast and erratically along a lonely and deserted road in the early morning hours. The officers stopped the vehicle and Long, the only occupant, met them at the rear of the car. After Long failed to produce his vehicle registration, the officers noticed that he “appeared to be under the influence of something.” Id. at 1036, 103 S.Ct. at 3473, 77 L.Ed.2d at 1211. As Long headed for the vehicle, apparently to retrieve his registration, the officers followed him and observed a large hunting knife in plain view in the car. The deputies then subjected Long to a Terry protective search and examined the interior of his vehicle by shining a flashlight through a window. As a result of that search, the deputies discovered marijuana, which they seized. The Court concluded, on the basis of the plain-view observation of the large hunting knife and a suspect who appeared to be under the influence of something, that the officers possessed a reasonable belief that the driver threatened their safety because he might gain access to a weapon. Id. at 1049-50, 103 S.Ct. at 3480-81, 77 L.Ed.2d at 1220.
Other cases emphasize the same norms of concern for police safety when dealing with armed and dangerous people. In Commonwealth v. Almeida, 373 Mass. 266,
We applied these same principles relating to the presence of weapons in State v. Esteves, 93 N.J. 498, 461 A.2d 1128 (1983), in which police officers were dispatched to investigate a possible robbery in progress at a local meat market. The dispatcher had related that a man with a gun was seen in an orange Volkswagen. On arriving at the scene, the police went first to the store. Next turning their attention to the car in the parking lot, the officers saw what appeared to be a small handgun between the front seats. The officers began to search the car for the identification. Their search of containers in the car uncovered drugs. We there concluded that “[w]hen a police officer ‘has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest,’ ” id. at- 506,
We recently had occasion to reconsider the Terry principles in State v. Thomas, 110 N.J. 673,
“[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id. at 679,
courts are more likely to approve of “automatic” protective searches when officers, before they even approach the suspect, have a specific and objectively credible reason to believe the suspect is armed. See Adams v. Williams, 407 U.S. 143 [92 S.Ct. 1921],32 L.Ed.2d 612 (1972) (upholding protective search based on an informant’s tip that suspect seated in car was carrying narcotics and had “a gun at his waist.”). [Ibid.]
See also State ex rel. H.B., supra, 75 N.J. 243,
In cases in which there is an insufficient basis for a protective search at the threshold of an encounter between an officer and a suspect, events occurring subsequent to a permissible investigatory stop may give rise to an objectively credible suspicion that the suspect is armed. Thus, in Pennsylvania v. Mimms, supra, 434 U.S. 106, 98 S.Ct. 330,
Applying such principles to the facts of the Thomas case, we found that when the police had received detailed information
There is evidence in this case that the suspects appeared nervous. Nervousness and furtive gestures may, in conjunction with other objective facts, justify a Terry search, but ordinarily “[m]ere furtive gestures of an occupant of an automobile do not give rise to an articulable suspicion suggesting criminal activity.” State v. Schlosser,
The Utah Supreme Court has reasoned that “[w]hen confronted with a traffic stop, it is not uncommon for drivers and passengers alike to be nervous and excited and to turn to look at an approaching police officer.” State v. Schlosser, supra,
Obviously there are some cases in which “furtive” movements or gestures by a motorist, accompanied by other circumstances, will ripen into a reasonable suspicion that the person may be armed and dangerous or probable cause to believe that the person possesses criminal contraband. Examples of such factors are additional evasive action, lying to the police, the presence of other incriminating information about the motorist or occupants of the car, the absence of identification, and even the lateness of the hour. See Annotation, “Search and Seizure: ‘Furtive’ Movement or Gesture As Justifying Police Search,”
IV
To sum up, we agree with the position of the Attorney General that the Michigan v. Long rule is sound and compelling precedent and should be followed to protect New Jersey’s police community. We have applied the rule of that case, which incorporates the Terry protective-search principles, in the search of a car. In making this ruling, we have no doubt about the good faith of the officer on patrol. New Jersey, along with
To some extent, the complexity in this field of law is cause for concern in itself. Justice Potter Stewart exhorted us to state the determinative rules with greater precision:
The exclusionary rule is * * * criticized for allowing criminals to go free because of a “technicality” — because a police officer failed to comply with what are sometimes described as “hypertechnical” rules. * * * [W]e who have served as Justices of the Supreme Court must take our share of the blame. The fourth amendment is no "technicality.” The occupation of a judge requires application of its sweeping language to cases presenting the infinite variety of factual situations that arise in real life. The art of being a judge, if there is such an art, is in announcing clear rules in the context of these infinitely varied cases, rules that can be understood and observed by conscientious government officials. If the outcomé of fourth amendment cases has come to be regarded as turning on “technicalities,” it is in part because of the inevitable human shortcomings of judges faced with the task of articulating fourth amendment principles applicable in a broad range of situations while doing justice in a particular case. Most judges do their best, but that is not always good enough. [Stewart, “The Road to Mapp v. Ohio and Beyond,” 83 Colum.L.Rev. 1365, 1393 (1983).]
Three recent Appellate Division cases illustrate the problem of line-drawing in this area. In State v. Lipski, 238 N.J.Super. 100,
Those principles were recently restated by the United States Supreme Court. It said that “[i]n a sense Long authorized a “frisk” of an automobile for weapons.” Maryland v. Buie, — U.S.-, 110 S.Ct. 1093,
We wish that we could do more, but Justice White has reminded us too that there is no “litmus-paper test * * * for determining when a seizure exceeds the bounds of an investigative stop” and that “it is unlikely that the courts can reduce to a sentence or a paragraph a rule that will provide unarguable answers to the question whether there has been an unreasonable search or seizure in violation of the Fourth Amendment. Nevertheless, we must render judgment * * Florida v. Royer, 460 U.S. 491, 506-07, 103 S.Ct. 1319, 1329, 75 L.Ed.2d 229, 242 (1983).
The judgment of the Appellate Division is reversed and the matter remanded to the Law Division for further proceedings.
Concurrence Opinion
concurring.
The Court declares invalid under federal law a warrantless automobile search conducted under circumstances where the police did not have “a specific particularized basis for an objectively reasonable belief that the defendants were armed and dangerous.” Ante at 48,
He made no claim of having smelled marijuana or having seen drug paraphernalia in the car or suspicious objects in plain view. Indeed, he did not claim that he feared he was in danger but rather only that he was taking steps to make sure he could not be threatened. And the assistant prosecutor, who argued the suppression motion, was equally candid, saying at one point to the court: “It’s close. It’s close.”
Looking at the same facts and applying the same test, the dissent concludes that the search was necessary “to protect the safety of the state trooper.” Post at 55,
On the facts of this case, I believe that the Court is correct. Consequently, I join in its opinion, subject to the following reservations. I write separately because the Court’s opinion studiously avoids New Jersey law as an independent basis for its holding.
Just five years ago, in another search-and-seizure case, the United States Supreme Court reversed a judgment of this Court not because we had employed the wrong standard, but because we had misapplied it. New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733,
On matters of federal law, we owe allegiance and respect to the interpretations of the United States Supreme Court. Hence, in this case, as in all others, we are bound by its opinions on federal law. On matters of state law, however, we are obliged to provide our own interpretations. In T.L. 0., as in the present case, we have failed to fulfill that obligation.
Here, defendants rely not only on the fourth amendment to the United States Constitution, but also on article 1, paragraph 7 of the New Jersey Constitution. Like its federal counterpart, that article of the State Constitution prohibits unreasonable searches and seizures. I believe the Court should address both parts of defendants’ argument. The failure to analyze defendants’ state-law argument may require us to review that argument in the future if the United States Supreme Court should agree that the dissent, not the Court, has correctly applied federal law.
As Justice Clifford wrote in State v. Hartley,
[w]e would be remiss were we to rest our decision exclusively on federal grounds when alternative state grounds exist. Failure to set forth clearly the independent state-law basis for a decision in a case in which federal constitutional law is also involved can lead to needless review in the United States Supreme Court, and could in fact require in some cases, subsequent redundant proceedings in our own courts. Such a disregard for concerns of judicial economy has been criticized. [103 N.J. 252, 285-86,511 A.2d 80 (1983) (citation omitted).]
Under our federalist system, a state-law analysis manifests no disrespect for federal courts as partners in protecting fundamental rights. The United States Supreme Court, charged as it is with establishing a basic level of protection for the entire nation, often is obliged to establish a lowest common denominator of such protection. The federalist system contemplates that state courts may grant greater protection to fundamental
As Justice Stein pointed out in State v. Novembrino,
It is an established principle of our federalist system that state constitutions may be a source of “individual liberties more expansive than those conferred by the Federal Constitution.”
This Court has frequently resorted to our own State Constitution in order to afford our citizens broader protection of certain personal rights than that afforded by analogous or identical provisions of the federal Constitution. Although the language of article 1, paragraph 7 of the New Jersey Constitution is virtually identical with that of the fourth amendment, we have held in other contexts that it affords our citizens greater protection against unreasonable searches and seizures than does the fourth amendment. [105 N.J. 95, 144-45, 519 A.2d 820 (1987) (citations omitted).]
When protection under the State Constitution is clear and protection under the federal constitution is not, we may properly rely on the State charter to remedy the rights violation. “Compelled by principles of sound jurisprudence,” Hartley, supra, 103 N.J. at 284,
The present case is an appropriate example of one in which the Court should base its decision on both state and federal law. As a matter of federal law, the issue is controlled by Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469,
Ironically, the case that is at the heart of today’s decision, Long, supra, is the leading decision for the proposition that a state court must make a plain statement that it is relying on state law as an independent ground for its decision. The failure of the Michigan Supreme Court in Long to make such a statement led in that case to a reversal and remand to that court.
In the present case, the Court assiduously follows one lesson from Michigan v. Long, that requiring that officers possess an objectively reasonable belief that defendants were armed and dangerous, and just as assiduously ignores the plain-statement requirement. By ignoring the second lesson, the Court repeats the error that Long sought to remedy.
In sum, important considerations compel reliance on state law as an independent basis for our decisions. Those considerations include the fact-sensitive nature of search-and-seizure cases, the different roles of state and federal courts in our federalist system, the need of law-enforcement officers for certainty, and our obligation to fairly and justly administer our Court system. I conclude that the Court would be well-advised to supplement its analysis of federal law with an independent analysis of the prohibition against unreasonable searches and seizures under the New Jersey Constitution.
Justice CLIFFORD joins in this opinion.
Dissenting Opinion
dissenting.
I would affirm the Appellate Division and trial court that the evidence of cocaine should not be suppressed because the State Trooper’s conduct falls within the law established under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and
In Terry v. Ohio, a police officer observing unusual conduct of defendant and two other men, and concluding that the men were contemplating a daylight robbery, stopped and frisked them thereby discovering guns. The Court denied defendant’s motion to suppress the revolver seized from him. The Supreme Court held that a police officer could stop and frisk someone who he suspected might be about to commit a crime without probable cause or a warrant. This stop and frisk was sustained because it was no more than a “protective ... search for weapons.” 392 U.S. 1, 29, 88 S.Ct. 1868, 1884,
In Terry, the Court found that:
[Tjhere is no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search [or seizure] entails. Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537, 87 S.Ct. 1727, [1733-1734, 1734-1735]18 L.Ed.2d 930 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. [392 U.S. 1, 21, 88 S.Ct. 1868, 1879,20 L.Ed.2d 889 , 905 (1968) (footnote omitted).]
The Court found in the Terry fact situation that the officer’s conduct was reasonable when weighed against the legitimate interest in “crime prevention and detection,” id. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906, and the “need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack possible cause for an arrest.” Id. at 24, 88 S.Ct. at 1881,
that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to*56 neutralize the threat of physical harm. [Ibid.; 392 U.S. at 25, 88 S.Ct. at 1882, 20 L.Ed.2d at 908],
After Terry, the Supreme Court extended the stop and frisk doctrine to include vehicle stops in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In that case, a police officer pulled over defendant’s automobile to issue a traffic summons for an expired license plate. The officer asked defendant to step out of the car, at which time the officer noticed a large bulge under defendant’s sports jacket. Fearing that the bulge might be a weapon, the officer frisked defendant and discovered a .38-caliber revolver.
The Supreme Court first addressed the question whether “the order to get out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the Fourth Amendment.” Id. at 109, 98 S.Ct. at 332, 54 L.Ed.2d at 336. The State argued that the practice of asking the driver to exit the vehicle was adopted to protect the officer since a face-to-face confrontation reduces the likelihood of an assault on the police officer. Id. at 110, 98 S.Ct. at 333, 54 L.Ed.2d at 336. The Court agreed with this reasoning by stating:
We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J.Crim.LC & PS 93 (1963) — ” Adams v. Williams, 407 U.S. 143, 148 n. 3, 32 L.Ed.2d 612, 92 S.Ct. 1921 [1924 n. 3] (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. Indeed, it appears “that a significant percentage of murders of police officers occurs when the officers are making traffic stops.” [Id. at 110, 98 S.Ct. at 333, 54 L.Ed.2d at 336-70 (citations omitted).]
Thus, the Court held that the additional intrusion to the driver of the car was “de minimus,” and so police officers may require a driver to exit his car when the motor vehicle has been
After Pennsylvania v. Mimms, the Supreme Court decided Michigan v. Long, which I agree with the majority is controlling in this case. In Michigan v. Long, two police officers observed a car traveling erratically and at excessive speed. When the car swerved into a ditch, the officers stopped to investigate and were met by the driver at the rear of the car. The driver “appeared to be under the influence of something” and did not respond to initial request to produce his license and registration. Then, the driver began walking toward the open door of the car, apparently to obtain the registration, and the officers followed him. At this time, the officers saw a hunting knife on the floorboard of the driver’s side of the car. The officers stopped the driver and subjected him to a Terry search, which revealed no weapon. One officer then shined his flashlight into the interior of the vehicle “to search for other weapons.” The officer noticed something under the arm rest on the front seat and entered the vehicle to investigate it. He then saw an open pouch on the front seat and determined that it contained what appeared to be marijuana. The driver was then arrested for possession of marijuana. 463 U.S. at 1035-36, 103 S.Ct. at 3473-74,
The Supreme Court concluded:
Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. See Terry, 392 U.S., at 21, 20 L.Ed.2d*58 889, 88 S.Ct. 1868, 44 Ohio Ops 2d 383. “(T)he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id., at 27,20 L.Ed.2d 889 , 88 S.Ct. 1868, 44 Ohio Ops 2d 383. [Michigan v. Long, supra, 463 U.S. at 1049-50, 103 S.Ct. at 3480-81, 77 L.Ed.2d at 1219-20],
Applying this analysis of the law to the specific facts in Michigan v. Long, the Court found the search was justified. Additionally, the Court rejected the argument that Long was under police control and could not gain access to weapons in the car:
During any investigative detention, the suspect is “in the control” of the officers in the sense that he “may be briefly detained against his will____” Terry, supra, at 34,20 L.Ed.2d 889 , 88 S.Ct. 1868, 44 Ohio Ops 2d 383 (White, J., concurring). Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long’s position break away from police control and retrieve a weapon from his automobile. See United States v. Rainone,586 F.2d 1132 , 1134 (CA7 1978), cert. denied, 440 U.S. 980, 60 L.Ed.2d 239, 99 S.Ct. 1787 (1979). In addition, if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside. United States v. Powless, 546 F.2d 792, 795-796 (CA8), cert. denied, 430 U.S. 910, 51 L.Ed.2d 588, 97 S.Ct. 1185 (1977). Or, as here, the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons. In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation “at close range,” Terry, 392 U.S. at 24, 88 S.Ct. at 1881, when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a “quick decision as to how to protect himself and others from possible danger____” Id., at 28, 88 S.Ct. at 1883. In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter, [Id 463 U.S. at 1051-1052, 103 S.Ct. at 3481-82, 77 L.Ed.2d at 1221-1222 footnote omitted.]
We have long recognized that the dangers facing police officers in making traffic stops are real and continuing. Indeed, the majority starts its opinion with a statement from the Attorney General’s brief that one study shows that of state police officers killed nationwide in the line of duty for a six year period, from 1976 to 1982, “40% of the troopers killed by gunfire were fatally wounded while making traffic stops.” The Attorney General also cites two recent New Jersey roadside encounters between suspects and police that have proved fatal,
Of course, in determining whether the search is constitutional, we balance the safety of law-enforcement officers against privacy interest in one’s car and its contents, and the intrusion of the search. In general, the Supreme Court has found that the fourth amendment does protect automobile searches but that the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. As the Supreme Court recently stated:
While the interior of an automobile is not subject to the same expectations of privacy that exist with respect to one’s home, a car’s interior as a whole is nonetheless subject to Fourth Amendment protection from unreasonable intrusions by the police. [New York v. Class, 475 U.S. at 114-15, 106 S.Ct. at 965, 87 L.Ed.2d at 91],
See Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 1400-01,
This lesser expectation of privacy for a vehicle has been based on several reasons. An automobile is used for transportation. It has little capacity of escaping public scrutiny. It is a normal occurrences for police officers to stop and examine cars for all sorts of motor vehicle infractions. Moreover, as a practical matter the inherent mobility of a car creates exigent circumstances that the defendant and the evidence may disappear. Thus, the Supreme Court has concluded that an individual has less privacy from government intrusion in a car than in his or her house, and so the government needs a lesser justification to have a valid warrantless search of a vehicle. Moreover, the Supreme Court in Pennsylvania v. Mimms found the “intrusion into the driver’s personal liberty ... by the order to get out of the car” to be “de minimis.” 434 U.S. at 111, 98 S.Ct. at 333,
I disagree and find that the totality of the circumstances compels the conclusion that the state trooper acted as a reasonably prudent police officer for his protection in his limited search of the car. My reasons are best expressed by the trial court in its oral opinion:
The totality of the circumstances here are there are already two motor vehicle violations, the driver is observed reaching into the rear seat, the occupants are at least in that opinion of the officer, unusually nervous. There are repeated furtive looks to the rear of the car, the windows have been — have had something applied that conceals the interior of the car, this is a garment on the back seat, the driver does not produce a valid registration for the vehicle. Let the record reflect that it’s a cotton windbreaker stuffed in the crack of the seat. What did the officer do? The officer asked the occupants to exit the vehicle and move to a position of safety, for both his safety and their safety. Do we reasonably expect an officer to search a vehicle with the occupants in it, I hardly think so, it’s totally irrational. What kind of search did he conduct, did he break anything? No. Did he unlock anything? No. Was there a container? No. Did he dismantle anything or disassemble anything? No. He reached into a crack in the seat. What better place to hide a weapon, I wonder? The belief that can justify a protective search can arise to the level that would justify a patdown of the defendant’s person, Terry v. Ohio. And need not constitute probable cause to search. The search must be limited to those areas of the passenger compartment in which a weapon may be placed or hidden. An obvious one, the crack in the seat.
Since the search was properly instituted, the state trooper conducting the search was not required to ignore any contraband other than weapons that he discovered. Therefore, I find that under the totality of these circumstances, the search made by the state trooper does not offend the constitution and was reasonable.
Accordingly, I would affirm the judgment of the Appellate Division.
For reversal and remandment — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN and STEIN — 6.
For affirmance — Justice GARIBALDI — 1.