*1 JERSEY, PLAINTIFF-RESPONDENT, OF STATE NEW SLOCKBOWER, JOSEPH VINCENT DEFENDANT-APPEL LANT. Mаy
Argued January 12, 1978 Decided 1979.
(1) *3 Mr. Jon P. Campbell argued the cause for appellant Summerville, Eric A. (Mr. attorney). Posner,
Mr. Lawrence H. Assistant Prosecutor, argued the cause for respondent O’Halloran, James T. Prose- {Mr. cutor, attorney).
Mr. David R. counsel, Arrajj, designated cause argued the for amicus cuñae Public Defender of New Jersey Stan- {Mr. Ness, C. Van ley Defender, Public attorney). Lamb, William
Mr. F. General, Deputy Attorney argued amicus the cause for curiae Attorney General of New Jersey John J. Degnan, Attorney General of New Jersey, {Mr. attorney). of the court was opinion delivered by This D. (temporarily assigned). J. A. P.
Conford, under the federal1 and whether appeal presents question seizure search and concerning State2 provisions constitutional in the a motor vehicle and routinely impound the police may on of the thereоf its contents the occasion course inventory We hold such for a motor vehicle offense. arrest of its driver invasion of an action he unconstitutional by driver zone of unless the either consents driver’s or a to make other arrange reasonable given opportunity (cid:127) ments of the vehicle. for the custody was Jersey On March arrested by defendant an for a motor driving on warrant City police outstanding driving vehicle on He was at the time while the revoked list. an to his wife. The vehicle was automobile registered searched turned spot. up on The search impounded and ammunition pen gun charged and defendant criminal violations in that regard. and indicted for statutory was successful motion to evidence suppress Defendant on for of the search. The Division illegality Appellate granted and, motion for leave a divided State’s to appeal, vote, N. (1976). reversed. 145 J. We Super. granted J. 74 N. leave defendant to this Court. appeal were City Squad Three Narcotics Jersey members on the afternoon of the unmarked vehicle date duty on defendant, whom they recognized of them Two in question. had executed They unsuccessfully a car. knew, driving They before. were also years home two at his warrant his arrest driving aware *4 Defendant was motioned over outstanding. was list revoked As out of the he stopped. stepped and intersection a street Constitution, Amendment XV. States 1United provisions I, par. 7. The State and federal Art. 2N. J. Const. free, however, wording. essentially to con We are same the are broadly provision in favor of than the more the State strue Johnson, federal. State vehicle he under The placed was arrest. car was searched at once and .22 caliber gun a box of pen .22 caliber ammunition were found in but the closed unlocked glove compartment.
On the motion to suppress, arresting Detective Roth testi- fied that it is standard for “the procedure safekeeping the vehicle” to a vehicle and impound its contents inventory when the driver been has arrested. This was only — justification for the search given by the a valid inventory vehicle. impounded However, no impounded vehicle report was filled until out after the car was taken to a precinct station second The search conducted.
report was then and the completed vehicle taken to car pound. The reason for the impoundment listed on police report “Pen in auto.” In gun found fact no detailed of the contents of the ear was report Despite made. various were in the car fact that tools lists report
them as “numerous tools.” collectively as motion held there no
Judge Thuring, sitting judge, was justification valid There was no impoundment. therefor; neither statútory mandate car was disabled on nuisance; the roadway nor a it could have safely been parked and locked at the scene neighborhood since the was not disbelief dangerous. expressed his the im- judge any standard poundment pursuant procedure. Noting stated as the reason for inventory report the im- finding car, in the he con- poundment pen gun cluded that the search preceded impoundment and that been a impoundment had pretext justify prior search.
In
reversing,
Appellate Division
relied on
majority
South Dakota v. Oppеrman, 428 U.
is therefrom.” 145 arrested removed in this reasonably It further found the acted that detectives J. The court cited N. in following case police regulations. A. action. S. 39 :4-136 additional as support was before the car searched finding motion that judge’s in the was no rejected having support it was as impounded decision, record. In dissent from Division Appellate it on Judge distinguished Opperman ground Botter over a vehicle in violation of involved parked, unoccupied instant there whereas in the case restrictions night parking not have lawfully was no that dеfendant could indication car and to have wife parked arranged picked up by his an or else. have that where someone would required He arrest is for a motor vehicle offense and the vehicle solely as can be and is not needed lawfully evidence parked consent the owner or of the car should be obtained operator Super. its impoundment. before view motion 491. It also judge’s Botter’s Judge should finding preceded impoundment search been have sustained. body considering
There is substantial of authority which, circumstances under consistent constitutional seizures, police unreasonable searches or strictures against or motor vehicle may (impound) take may custody contents, necessarily prior its inventory involving L. Annot. 48 A. R. search vehicle. See 3d to with the This has not had oсcasion deal prior situation. instant any context subject comparable Hock, N. J. 526 cert. den. U. S. (1969), In State v. L. 930, 90 Ct. impound 2d probable were cause to believe upheld ment and search There no here consider the the car was need stolen. to the warrant relation exceptions area of requirement motion on stopped probable car cause Chambers v. objects, seizable see the vehicle contains believe Ed. 2d 419 42, 90 S. 399 U. S. Maroney, arrest of an occupant a search incident to valid (1970), or *6 driver, States, or Preston see v. United 376 364, U. 84 S.
S. 881, L. Ed. Ct. 11 2d 777 as neither of these to the exceptions is to exist argued requirement Further, here. although by reason the of and other mobility characteristics a vehicle, of motor the recognized search and seizure of a car may found reasonable in circumstances where that of a home not, or office would see State v. Boykins, 50 N. J. 73 (1967), nevertheless it remains the law that motor vehicles constitute of areas of persons and effects within the general protection of the Fourth Amendment and our own Constitution. Ortiz,
United States v. 891, 896, 422 U. S. 2585, 95 S. Ct. L. 45 Ed. 2d 623 v. New (1975); Coolidge Hampshire, U. 443, S. 461, 2022, S. 564 (1971); 2d Inc., Marshall v. Barlow’s 436 U. note 10, S. Ct. 1816,
S.
The recent decision of the
States
Court
Supreme
United
in South Dakota v.
Opperman,
428 U. S.
supra,
S. Ct.
compartment, A were followed. -procedures” contents. “Standard- In compartment.' was found glove of marijuana bag defend drug prosecution possession the subsequent A that motion denial- of the evidence. to suppress ant moved Dakota on of South Court Supreme was revеrsed On certio Amendment. Fourth of violation grounds rari, broadly Court implied reversed. The Supreme as part of vehicles custody police assuming approval in various functions” con “community caretaking violation of parking such vehicle accidents and as tingencies “the and the efficient ordinances-jeopardizing public safety *7 96 368-369, 428 U. S. at movement of traffic.” vehicular a impound Ct. after valid S. 3097. The Court found that ¡routine follow' generally ment “local police departments con the automobiles’ of practice securing inventorying 96 S. at 3097. Three 369, purposes tents.” Id. at Ct. were of the owner’s prop discerned: inventorying protection of the protection remains in erty police custody; while it over and the protection claims lost properly'; police against Ibid. from potеntial danger.' of the police filed a con Op'perman (Justice While Powell plurality that “these caretaking procedures” stated curring opinion) 428 courts, the state been uniformly” upheld had “almost $. 369, 96 there has been substantial 3092, TJ.8. at Gt. have which insisted jurisdictions upon
growing minority
need,
factual
police
light
substantial
showing
regard
constitutional
for the
interests of automobile
privacy
drivers,
motor
impoundment
before
of a
ve
approving
v.
4
County,
hicle. Mozzetti
Sacramento
Superior
699,
412,
Cal. 3d
94 Cal.
484 P.
84
2d
Rptr.
Ct. 1971);
(S.
Miller,
860,
v.
Cal.
People
219,
7
101 Cal.
P.
Rptr.
3d
496
Boster, 217 Kan.
2d 1228
Ct
State
1972);
618, 539
(S.
v.
(S. Ct.
P. 2d
v.
State
Wash.
1975);
Singleton, 9
App.
294
327,
Hardman,
511 P. 2d
State
1396 (Ct. App. 1973);
v.
17
910,
Wash.
9 State, v. 2d 641 Dis. Ct. State v. App. 1977); 348 So. (Fla. Goodrich, State v. N. W. 2d 1977); 256 506 Ct. (Minn. Ga. S. E.
McCranie, 137
223
765
App.
App.
2d
(Ct.
Dawson,
Danville v.
528 S. W.
687
1976);
2d
City
(Ky.
State,
A.
Ct.
Duncan
378
2d
App.
v.
281 Md.
1975);
State,
Dixon v.
Md.
App.
(Ct. App. 1977);
Jewell,
19,
general are United v. F. accord States 2d (8 Cir. Edwards, 1973); United States F. 2d 1331 Hellman, Cir. (5 United 1977); States v. F. 2d (9 Cir. McDaniel, also 1977). See State v. N. J. Super.
(App. 1978). Div. cases,
It has in a been number stated persuasively t seeking righ rationale that would balance the duly function’s, legitimate against police safekeeping if the circumstances a vehicle to the -at that bring properly tention of the driver, are such its even though' arrested, is able to make own its cus-' his arrangements if tody, or the vehicle can be conveniently parked locked without constituting obstruction of other traffic or pub lic danger, should that action be taken permit rather than impound it the will against of the driver and Goodrich, Thus, in State v. thereafter. routinely.
supra, had defendant been arrested for while in driving toxicated. His mother and brother arrived quickly at after scene defendant them telephoned with police permission from a service station across the street. police custody We hold that where assumed of defendant’s auto legitimate safekeeping,
mobile for purpose no other than state arranged means, where had alternative not shown defendant for safeguarding property, impoundment unreasonable, for of his and, therefore, of defendant’s unreasonable con automobile was was, inventory unreasonable; comitant an under the Fourth .search accordingly Amendment. We reverse. 2d [ 256 507] N. W. In the reasonableness of an determining impoundment, court posited the test: following impounding outweigh The state’s interest in must the individual’s right Fourth Amendment searches and be free uni'easonable
seizures; expectation although respect with to an significantly expectation of automоbile is privacy less than the traditional home, constitutionally associated with the this interest is still protected, Opperman, supra. South Dakota v. N.
[ 256 510] W. 2d at State, Likewise, in Altman v. So. 2d 626 (Fla. App. crashed car in 1976), defendant his high speed chase He police. was arrested and to have friend attempted at the scene take over control of his vehicle. The court found impoundment instance unnecessary. this to be pattern running through police A common these eases is that good inventory procedure must act faith and not use the as a subterfuge prime for a warrantless aof A criterion vehicle. custody to determine if the have takén lawful of a motor ve- justifiable police, acting hicle is whether or not it is for the under police procedure, routine to become bailees of the vеhicle. it Here stipulated ability the defendant had desired and to have by police. his car removed someone without intervention of the Therefore, underlying necessity police custody did not exist. When the driver of a motor vehicle is arrested and a reliable friend present, capable is authorized and an remove owner’s vehicle capable being safely removed; which is or where the arrestee expresses preference towing designates ap- as to service and propriate vehicle, unnecessary carrier and destination for the impound In it. either of these instances the rationale inventory for an search does not exist. 629; [ 335 omitted] So. 2d at footnote with, In views are the decisions foregoing accord Hardman, State v. P. supra, 2d at 241 first .(officer must explore thеreafter discard im reasonably alternatives to Boster, ; State v. P. supra, poundment) 2d at 300 (car driven arrestee was owned in a by second passenger car, who could taken City of following possession); have * * Dawson, Danville v. S. W. supra, 2d at 690-691 (“* *9 at easy it should to reach some ordinarily just person as his home as it is to call a order impound] wrecker [in * * * the practice vehicles for mere traffic vio impounding and, lations is utterly indeed, is of unnecessary questionable Landa, Cal. v. 30 Cal. App. 3d legality”); People Rptr. 329, on war 1973) 331-332 traffic (Ct. App. (arrest rant; could “have locked and left unattended. car been The would situation have been no different defendant had vehicle, himself voluntarily parked it”). locked and left by recently application The pertinent principle given McDaniel, our A vehicle suрra. v. Division State Appellate was detained police which defendant was a passenger and in the credentials stop” “erratic course checking a bench police ascertained that the driver was “wanted warrant” him. and arrested The driver whether de asked fendant could take the car took the refused and police but ear to the station. the car was searched “for There valuables A of heroin any contraband.” quantity bags was disclosed in the In search. a motion denial of reversing to suppress heroin, out, the court other pointed among things, had an alternative to impoundment, e., i. the car over to N. turning Super, defendant. 156 J. at 356. Moreover, court, said either of could occupants have moved the vehicle a lawful and locked area parking it. Ibid. In these circumstances decision “impound” the car was unreasonable Id. because at 356-357. unnecessary. Roberson, C v. State Div. Super. (App. f. Jones, 1978); State 122 N. J. Super. 1973). (Cty. to the present application foregoing principles
case does not conflict with South Dakota v. present any Op perman, on its facts. supra, pointed As out Botter by Judge below, his dissent the owner of the car in had Opperman his in a left car state multiple of a continuing violations prohibitory ordinance and was not parking to make present other for the arrangements care his when the belongings police properly became concerned N. vehicle. 145 J. 488. See 428 U.
Super, S. at 98 S. Ct. and Cady *10 Dombrowski, L. 2563, Ct. 433, 443, 93 S. 2d v. 413 U. S. was apprehended) instant defendant When the de why been no reason to by contrast have appears there car his park been pеrmitted have fendant could not had had if he have done it, lock as he would just and properly appropri was any in If there business any neighborhood. until de the car of safety ate concern for the police by been given have fendant could obtain his release3 he could ear, to take owner of wife, the his to summon opportunity recourses been alternative these of it. Had of possession any con for reasonable had no basis taken, have would police own for their property, cern for the of defendant’s protection own or for their bailees for lost articles liability as potential record, that as is not inconsistent with safety,4 assuming, in ac their ever such they any purposes entertained genuinely tions under review here.
The
to be made is
constitutional
point
rights
in
by
vehiсles
must
accorded
respect
and effects
be
mere
as well as courts
cannot be
police
subordinated
of substantial
short
of
to the
considerations
convenience
police
of es
burden
safety.
grounded
public
necessities
right
case of claimed
any given
such
tablishing
necessity
As
rests on the
impound
inventory
police.
aptly
car
v.
put
765,
in Chimel
395 U. S.
California,
764—
2041,
the Fourth A Amendment: Troubled 4 Seton Relationship,” Hall L. Rev. Note, (1972); Harv. L. Rev.
835, 848-853 (1974).
We also find ourselves disagreement Appellate Division determination N. J. S. A. justified 39:4-136 *11 police action here. This a case, was not as implied by that court, 145 N. J. Super, at of a motor “which vehicle can- not be moved by the operator, or is improperly parked and left unattended upon a roadway.” Thur hold, we
Accordingly, agreement Judge ing’s level, at motion the ruling the circumstances which State here constituted for a standard argues justification and impoundment of inventory did not in terms up measure substantial necessity to the criteria therefor formulated above. reason,
For this even there no search would other, were the to have under be the federal and constitu condemned State the and order of motion tions the sustained. judge another for yet ground condemning is the But there conclude was substantial credible evidence search. We there to search in of the motion support findings judge case was not an pursuant impoundment prior this to but it and that the purported impoundment pretextual. was In ef fect, the of was an in ruling purpose the police search based on rather vestigatory probable cause than a bona If impoundment proper safekeeping purposes. fide else, the written notation nothing police report reason for as “Pen found in impoundment gun auto” would judge. 'the For amply justify finding this additional reason, consequently, the search was and illegal the evidence McDaniel, See v. subject to State suppression. supra, 156 State, v. v. 358, 359; supra; Pigford Dixon at Super, State, States, State Granville v. v. supra; supra; United Edwards, Jewell, States v. United supra; United supra; Hellman, supra. States v. arrived at a reversal of the
The thus require conclusions Division without Appellate necessity judgment as to the extent to which considering question im made, vehicle may assuming impounded itself reasonable and valid. Contrast poundment Dakota 428 U. Opperman, views South expressed S. Ct. 3092 In re One (glove compartment); etc., Econoline, P. Ct. 109 Ariz. 2d (Sup. Superior Mozzetli v. 1973) Sacramento (satchel); State v. Brad County, plain view); articles supra (only shaw, N. App. (Ct. 1974) 41 Ohio 2d App. 2d E. State, P. Williams v. 2d open trunk); (improper Prob Sup. 1976) (trunk searched). (Wyo. properly in this lems bemay presented regard of some difficulty it as reserve such disposi regard prudent questions we case-by-case they tion on a basis as arise. opinion of Justice concurring Schreiber disputes in this that a opinion warrantless
assumption search is prima invalid and becomes valid if it falls within a only facie specific exception carved out *12 requirement the United States Court. Supreme Justice Schreiber would if the valid “reasonable” without search find warrantless situation one under particular thе subsuming of necessity We do 18-22). regard not (pp. of “exceptions” the vehicle extended discussion as appropriate this appeal assumption of which Schreiber validity of the to Justice the that to out numerous It will point suffice takes exception. our Court Supreme support the United States of decisions Inc., 307, 313, Barlow’s 436 U. S. Marshall view, e.g., and 2d 305 the com (1978), 56 L. see 98 S. Ct. Erocolano, in State v. of Court opinion panion 25, 41 decided this and that this Court day, has Sims, State v. recently already proposition. embraced J. 75 N. 351 (1978).
While consider the so-called inventory some to the separate exception requirement, would to seem to us sub-species constitute exception denom- inated The necessity circumstances.” “exigent initial the search is in the impoundment preceding grounded public safety order good thought and in the implicated sudden abandonment of a motor' temporary vehicle on the public streets. The the doctrine and its development will limitations reflect the views of the courts undoubtedly as seriousness of the asserted exigency particular as case the car owner against degree privacy of invaded the action of the police. judgment Division is reversed Appellate
the order in the car is suppressing the articles found reinstated. J., I concur in the opinion
Pashman, concurring. subject to qualifications expressed my concurring Ercolano, opinion in State v. 79 N. J. filed today. 25 (1979), Although vehicle, defendant’s one unlike the involved Ercolano, lawfully parked at the time of the arrest — inasmuch as police defendant while vehicle spotted — was in motion and him forced over to the curb pull nevertheless there did not any exist “substantial need” to subject the vehicle to There was no impoundment. showing could not have conveniently parked the car locked or that defendant, even arrested, could though not have made his own arrangements to have car moved.
This seizure was therefore unnecessary the attainment of lawful any police objective, illegal. hence I Accordingly, agree judgment the Appellate be reversed, Division should and the order suppressing the reinstated. evidence *13 This should J., properly
Schreiber, case concurring. in there was sufficient support of whether on the issue turn that factual findings (1) trial court’s the record for the before its had searched impoundment, vehicle been defendant’s not been made had pursuant (2) impoundment that had that (3) impoundment a procedure, standard examined Having a the search.1 been “pretext” justify am in accord record, I generally and analyzed his Botter Judge dissenting comments of following below: opinion findings, supporting There evidence these was substantial credible Johnson, they State v. should not disturbed this court. * * *(cid:127) testimony (1964). indicates that 42 N. J. pretext investigative a for a motive. The arrest search was criminal squad. ing a He testified officer was member of the narcotics that outstanding by examining the war he discovered traffic warrant previously precincts. a He had executed search rant files different addition, In success. there warrant at defendant’s residence without compartment glove De no need to the scone. was examine from the and the testified had been removed vehicle officer fendant weapоn, suspect nor he did not that contained that vehicle fact, present. In did he fear defendant. two officers were While no pre finding was made claimed seizure the vehicle that investigation, this evidence buttresses the trial
text a criminal findings judge’s occurred officers intended the search before the Super. 480, impound (1976)] [145 N. J. the vehicle. every justify traffic violation will Although vehicle, of a if a traffic violator is arrested and of every part search the car custody, may taken into properly mistakenly had the burden stated that State 1The court trial probable convincing proving by evidence cause clear and by preponderance fair burden is for the search. The existed Pressler, (b) Current N. R. J. Court 3:5-7 the evidence. See Rules, e.g., also, 3:5-7(b) See State at 370 Comment R. 1976). (App. Super. 45, Whittington, Div. This 51-52 parties. raised, briefеd How or been considered issue has not analysis ever, the trial court’s it would have clear from irrespective standard factual conclusions the same reached applied. *14 if for they believe weapons reasonably for necessary pro tection or prevent escape. Boykins, to State v. N. J.
73, 77 Here the trial court found that the defendant was arrested after he out of car stepped and that officer stated the search was not made for reasons. safety the defendant was Apparently to head transported in the car quarters so there was to necessity detective’s no search the for defendant’s automobile in weapons connection with Therefore, its use. the search in this was case unreasonable was because there no nexus betweеn the arrest Zito, and the search. State v. 54 N. J. 206 (1969) (war Cf.
rantless trunk automobile where proper occupants arrested for to failing good account of give themselves and suspected of in involvement burglary). majority’s a holding impounding vehicle and its in with
inventorying contents accordance routine police when the driver is procedures a motor arrested vehicle ofEenseis an “unconstitutional invasion of the zone driver’s unless driver either consents or is a given reasonable make other for the opportunity arrangements of the vehicle” is custody too a declaration. I would sweeping that the hope would at majority least detention permit vehicle at during scene, driver questioning so may information derived rise basis give justifying search. the under- my
Even more important disagreement to the Fourth majority as lying philosophy opinion Amendment.
Chief for the in South Burger, writing Justice 364, 3092, Dakota 428 U. 96 S. Opperman, S. Ed. to be proper
L. stated test 2d motor vehicle search of a measuring propriety applied was circumstances of all the the search light whether from Mr. Jnstice He quoted approvingly unreasonable. Fourth Amendment: last on the writing
Black’s require every does made The Fourth Amendment search be prohibits only pursuant warrant. It “unreasonable searches oppor is not relevant test the reasonableness seizures.” The tunity procure warrant, of the seizure but the reasonableness all The test of reasonableness cannot under the circumstances. by per rules; each be decided on own se case must fixed its facts. (emphasis 2d S. Ct. at Ed. [428 U. 96 S. at Coolidge Hampshire, original), quoting from v. New 403 U. 2059-2060, 443, 509-510, 29 L. 2d S. Ct. concurring dissenting)] (1971) (Blaсk, J., *15 pursuant guideline, Instead of the to this fashioning question that Fourth assumes Amendment requires majority that warrants must obtained before search is always any be within limited unless the search falls certain permissible exceptions.2
A of the Chief Justice comparison suggested by approach and that endorsed in this illus- Burger by majority case that in trates two have evolved competing theories concepts. 2Supreme opinions between these Court have wavered Compare Trupiano States, 699, 705, Ct. v. United S. 68 334 U. S. 1229, 1232, 1663, (1948) (adopting Ed. the “cardinal 92 1669 L. that, seizing goods articles, agents must rule and law in enforcement reasonably practicable”) secure and use search warrants wherever 56, 430, Rabinowitz, 66, S. Ct. with United v. U. 70 S. States 339 435, 653, (1950) (holding “is not 94 L. test 660 procure warrant, whether a search but whether is reasonable California, reasonable”). Although the seаrch Chimel v. 395 752, 2034, (1969), Ct. 23 Ed. 2d returned to the U. S. L. S. 433, 439, Trupiano, Cady Dombrowski, philosophy in U. S. v. 706, 2523, 2531, 713, (1973), 93 S. 37 L. Ed. 2d as standard” and referred to reasonableness the “ultimate given have us declared Framers of the Fourth “[t]he Amendment only general guide in as deter standard ‘unreasonableness’ mining and seizures meet standard of that searches whether required.” Pro cases a warrant is not Amendment in those where moment, that “for the the see Weinreb commented fessor away from clauses of the amendment between two tilted saw Amendment,” of the Fourth “Generalities the warrant clause.” both been Since then views have Chi. Rev. U. Opperman, Mincey supra, Compare expressed. Dakota v. South Arizona, Ed. 2d 290 U. S. 98 S. Ct. 57 L. concept. emphasized clause the warrant which The the Eourth Amendment. construing language Amendment hears repeating: right houses, papers, peoplе persons, of the to be secure their effects, against seizures, not shall unreasonable searches cause, probable violated, upon issue,
be and no but Warrants shall supported describing affirmation, particularly Oath or place searched, persons things [U. and the or to be seized. Const., IV]3 Amend. are The Amendment of two distinct clauses which consists not secure against connected. should be unreasonable People searches and no warrants shall issue except upon probable cause. The sentence does read warrantless searches Rather, are unreasonable. clause first sets down the that searches unreasonable, ultimate standard shall not be of the irrespective particular requirements clause; whereas the second clause establishеs the test of reason- ableness for a of search. specific type some history dichotomy
Constitutional sheds on this light Amendment and suggests many searches types warrants.4 In did not colonial concern centered require days warrants which been used accomplish had general T. Two Tayior, unreasonable and oppressive searches. *16 in Constitutional 41
Studies In 1761 Interpretation (1969). of warrants the use the revenue laws was general enforce merchants, attacked court the Boston but to vigorously by 2 Adams Legal Papers no avail. John 106-147 (Wroth of Zobel ed. 1965). Enforcement of these warrants provoked phraseology virtually 3The the State same. Constitution par. I, Art. 7. Comst. acknowledged oc 4Mr. Justice Powell that: “The has history types also looked to to discern whether certain casion has objectionable рerceived government by intrusion were to be Chadwick, Amendment. See United States Framers the Fourth v. [1], 2476, 538].” [ 97 S. L. Ed. 2d Rakas 433 U. at 7-9 Ct. S. - 421, 435, Illinois, -, --, U. S. 58 L. Ed. 2d v. J., concurring). 387, (1978) (Powell, were an anathema the colonies. They violent opposition. States, 38; 616, Taylor, supra Boyd at United U. S. 524, 529, 29 L. Ed. 624-625, S. Ct. framers were dis that our constitutional
Taylor concludes than war turbed the use rather by general 41. asserts that Taylor, supra rantless searches. He a warrant shall constitutional issue provision upon with sufficient was inserted probable cause and particularity to eliminate this evil. specific routine at the time was the significant practice
Equally in which he was found a felon and the searching place without a warrant. at 29. No Taylor, supra disquiet safe and the constitutional evidenced about such searches Mar searches be reasonable. guard inserted was such Barlow’s, Inc., 307, 327, shall v. U. S. 98 S. Ct. J., 56 Ed. (Stevens, dissenting). 2d (1978) of reasonable category
Thus the warrant established one clause standard of reason that the searches, recognizing framers a warrant and in some instances require ableness might others not. which, without
Therefore, of searches some types pro- those cedural come to resemble the searches con- safeguards, might times, colonial ducted under the warrants of most general fall within the warrants. clearly group requiring Beyond that, it is for courts to determine whether and what extent reasonableness to the warrant requires conformity clause. The arises when the difficulty court is faced with cir- cumstances, or which purposes objects were not considered Thus, the framers. for example, when Supreme Court has considered application of the Fоurth to ad- Amendment searches, ministrative there seems to be general agreement that reasonableness requires than something less strict appli- cation of the warrant clause. Compare the majority dis- Barlow’s, Inc., in Marshall v. senting opinions supra. (The majority, although warrant, requiring diluted the concept cause probable dissent would have eliminated the *17 need for warrant.) South Similarly Dakota v. Opperman, Dombrowski, supra, Cady and. 413 U. 93 S.
2523, 37 2d 706 that reasonableness (1973), suggest does require not with compliance the warrant clause when the purpose the search is as benign from in distinguished vestigation criminal activities.
The so-called to the warrant are exceptions requirement really which, categories searches terms purpose, place or circumstances, differ from those searches whiсh war rant clause was clearly cover. Por designed to example, search incident to an arrest is protect designed the police (different purpose) is directed toward evidence of a spe cific crime for which the suspect has been arrested (circum stances not like the general Thus warrant.) reasonableness can be satisfied aby standard different than that contained in the warrant clause. State v. Boykins, 50 N. J. 73, 78 Cf. where Chief Justice wrote: Weintraub only The Fourth Amendment forbids such searches as are un- may reasonable. The familiar dbctrine that a search be made as subject an incident an arrest exhaust reason- does not represents merely able searches without a warrant. Rather category of reasonable searches. stating as thus read merely
When warrant clause in a applied particular the reasonableness standard seen as embodying can then be factual clause setting, first which legality standard to determine the against ultimate When and seizures. purposes, of searches confronted framers, or objects circumstances not envisioned wiser, and indeed the is to the reasonable- proper apply course clause; ness not to force new into automatically situation clause warrant the nature category. Upon considering of searches, of a class well particular court determine may re- requires reasonableness with the compliance quirements. Court,
In the
before
we
with an
dealing
object
case
are
within
the framers —the automobile.
contemplation
insists on
requirement
the warrant
majority
applying
*18
searches only
warrantless
allowing
objects,
searches
those
N. J. at
when
of the narrow “exceptions” applies,
one
[7-9
15].
of Supreme
line
long
This
interpretation ignores
rigid
in
determined,
essence, that
greater
cases that have
expectations
pri
and the reduced
mobility
automobiles
of reasonable
allow some standard
with them
vacy associated
Barlow’s,
v.
Marshall
requirement.
ness other than
Inc.,
L.
10, 56
S. Ct. at 1822 n.
10,
at 315 n.
supra
rule
Indeed,
general
313 n. 10.5
rather than
being
2d at
is the
automobiles,
the warrant requirement
with respect
Lewis,
583, 593,
v.
417 U. S.
narrow
Cardwell
exception. Cf.
distinguishing
2464,
325,
Ed. 2d
2470,
(1974),
94 S.
443,
New
Hampshire,
403 U.
idge
Cool
S. Ct.
The I am approach which here is the one advocating which was repeatedly expounded by Chief Justice Weintraub. anatysis His seizure questions began premise only unreasonable are pro warrantless searches Davis, scribed the Fourth Amendment. In State v. b3r N. J. 16 (1967), cert. den. 389 U. S. S. Ct. L. Ed. 2d 852 he wrote: bar all ches and seizures. It Fourth Amendment does not seal Tlie concepts developed only The
bai'S those that are “unreasonable.” ques- remain ultimate this wrea subordinate standard. occupy fact “[t]he that automobiles 5Tliat footnote recites beyqnd special category now Amendment case law Fourth car, factors, quick mobility due, among doubt, of a to the other driver, requirements registration car of both the and the plain-view opportunity of a observations car’s available more contents.” tion, then, done must said is whether what was be on the total complex (emphasis [50 factual to be N. J. at 22 “unreasonable.” supplied) ] s —
He reminded us that factor the individual’s offsetting from crime and the right protected public’s interest — prevent crime must efforts be considered and intrusion weighed against upon the of and the in *19 convenience to the individual. The Chief Justice forcefully in State v. and those carefully described Boykins, interests 50 N. J. 73 a ease (1967), an automobile involving search. proposition We must recur to the basic the Fourth Amend only
ment bars searches that are “Since the Fourth unreasonable. speaks, absolute, Amendment not in terms that are but rather of unreasonableness, necessarily continuing calls for a reconciliation competing gаlaxy right of values. in values Pre-eminent the of is the home, of the individual to live free from criminal attack in his his work, Davis, (1967). and the streets.” State v. 50 N. J. 16 That primary right government equal individual demands that to be —being protection citizen, reason its and individual deciding whether a search if is unreasonable the officer does not precisely keep uncover, know it will must in mind that what we preventive duty a deal have role as well as the to with crimes already Dilley, (1967). finally committed. State J. And v. 49 N. 460 repeating question it is worth the immediate is whether evidence unimpeachable probative suppressed of worth shall with the be public involved, to obvious hurt other and to not individuals values says illegally because the Fourth Amendment that evidence obtained used, judiciary, believing be shall not but rather because the it was upon remedy breach, to a unable fashion its settled the sanction compel suppression Davis, to obedience to its command. State v. J., supra, N. 22. at dealing privacy home, not of a or of Here we are a place dealing,with something im- business. We not which is are thereby and mobile is limited in its usefulness the criminal ele- subject vehicle, which, ment. Rather is motor for all its high among agencies blessings, is of crime. The automobile is provides perfectly weapons, suited for that use. It cover for contra- supplies capacity band, the fruits of crime. It and to strike warning No without leave without trace. crime discussion of ignore automobile, or the incidence can crime fact directly hinged to the amount we accord [Id. is it. supplied) (emphasis ] 81-82 Zito, in State v. He the same expressed thought supra: 24: Suppression judge-made is a device to deter future acts of insolence rectify wrong already than rather done. It must office right be is in- overlooked that the contest between first — — right protected right dividual to be from crime seizure, individual to be from an free unreasonable patent and that when criminals are set loose because evidence of guilt heavy price exacted, suppressed, their is is not from an ab- society, straction called the or the or but from law- State abiding right protected thereby impaired. individuals whose [54 N. 210-211] J. at been analysis
Chief Justice Weintraub’s has em firmly Simone, State v. De 60 N. in our J. bedded jurisprudence. McNair, v. State 60 N. J. 319, 8, 324 ,(1972); (1972); Carter, J. State v. 59 N. State v. 563, Gray, (1971); 54 N. J. cert. U. S. 90 S. Ct. 436, 948, den. 397 (1969), Barnes, L. Ed. v. 54 N. J. State 969, 1, 2d 130 (1970); cert. 90 S. Ct. 24 den. 396 U. v. State 53 Campbell, 2d 525 (1970); McKnight, State J. N. (1969); I cannot subscribe rejection. to its Hughes
Chief Justice joins this opinion. *20 Hughes, Schreiber, J.,C. and Pashman JJ., con- curring the result.
For reversal —Chief Justice Sullivan, Hughes, Justices Pashman, Clieeord, Schreiber Handler and Judge Coneord —7.
For affirmance —None.