*1 PLAINTIFF-APPELLANT, JERSEY, v. JOHN NEW STATE OF WELSH, JR., DEFENDANT-RESPONDENT. 26, 1979 September 1980. Argued Decided November *3 O’Halloran, General, Deputy Attorney James T. argued the (John appellant cause for Degnan, Attorney J. General of New Jersey, attorney). Defender, Vigliotti, Deputy argued
James A. Assistant Public Ness, respondent (Stanley cause for C. Van Public Defender Jersey, attorney). New The opinion of the Court was delivered CLIFFORD, J. presented by appeal
The issue
this
is whether the
*4
may constitutionally conduct a warrantless search of an automo
stopped
public
bile when the driver is
a
highway
on
and arrested
pursuant to a lawful arrest warrant.
the
Under
circumstances
question
negative.
of this case the
must be answered in the
We
scope
reaffirm that the
of a search incident to an arrest must be
person
limited to the
the area
his
of the arrestee and
within
control,
California,
immediate
395
mandated
Chimel v.
(1969).
U.S.
I 26,1976 Thom Jersey New Stale Police Officer November On partner parking stationed themselves in the Spivey as R. and his a alley. They had obtained bowling Brunswick lot of a New defendant, Welsh, Jr., eight days John warrant for the arrest bowling the that he would be at earlier and had been informed bowling plain clothes and in alley day pick up to a ball.1 car, for troopers waited four or five hours an unmarked troopers an hour before the arrested Welsh to arrive. About defendant, them they called for uniformed State Police assist executing the arrest warrant. When Welsh came out of car, Midget, a onto an bowling alley, he drove his 1975 MG trooper signalled adjacent highway. Thereupon the uniformed pulled up stop, Spivey partner Welsh to and Officer and his Jersey New identifying behind Welsh’s car. After himself as a warrant, Trooper, Spivey read Welsh the arrest State Officer car, informed him of his Miranda ordered him out of and Arizona, rights. See Miranda L.Ed.2d 694 that, troopers according Spivey’s testimony,
After “had problem” presence with Welsh because of the in his car of his they year two or three old son. The officers determined that any difficulty arising boy’s presence by from the could avoid his car back to the Police allowing defendant to drive Spivey vehicle Accordingly, barracks in Princeton. “checked the nothing to make there was in the vehicle that would be sure * * destroyed He the interior of the in-ride searched car, the crime of looking “any evidence or fruits of Midg- with bookmaking.” Being design familiar of the MG et, Spivey up and uncovered two reached behind dashboard envelopes maze of wires there. The envelopes secreted money betting slips. contained investigation in the of a three-month 1The arrest warrant was issued course alleged challenge not of the sale of tickets. The defendant does lottery of the warrant. validity „ *5 contraband, changed their troopers Upon discovery of this station in a and his son to the transported Welsh plan and car was towed to the station. police car.2 Defendant’s conspir- variety bookmaking and charged Welsh with a was in the suppress the evidence found acy offenses. His motion to that judge trial reasoned was denied. The search of his car surrounding the arrest circumstances considering the factual they that “wisdom would dictate charges, the nature of the and in it if there was contraband search the vehicle first to see get him back in it.” allowing before to pleaded thereafter plea bargain Pursuant to a defendant slips in violation of N.J.S.A. possession lottery guilty to contrary to lottery violate the laws conspiracy 2A:121-3 and -9 2C:37-1 to (superseded and -2 N.J.S.A. N.J.S.A. 2A:98-1 remaining counts of The (gambling) (conspiracy)). and 2C:5-2 of the on recommendation State. the indictment were dismissed Jersey years three in New sentenced to two to Defendant was Prison. reversed the trial court’s Appellate Division appeal On motion, guilty suppression vacated denial of defendant’s counts of the indictment. pleas, and reinstated the dismissed attempt rejected the to characterize doing so it State’s light in an arrest or as reasonable search as incident to The court held totality of the circumstances. their from circumstances of permitted to benefit
could not be
California, supra,
v.
and United
making, relying on Chimel
own
(7th
1976).
N.J.Super.
Griffith,
having until shortly prior been available to the attorneys course, of this factual was, development Division unaware Appellate to this feature of the case. its makes no reference hence opinion
II
Patino,
in
v.
7
justify
In this case the
seeks to
the search under the
State
Clause,
exception”
“automobile
to the Warrant
Carroll v. United
States,
(1925),
45
Ill exception looks first to the automobile State exception, validate the warrantless search here. Under that States, supra, police in can first articulated Carroll v. United the stop moving readily and search a or movable vehicle when there probable is cause to believe that the vehicle contains evidence of Patino, criminality. supra, exigent the circumstanc As noted mobility es created the inherent of vehicles and the some expectations privacy what lessened of one’s vehicle furnish 9-10; exception. Cady the rationales for this 83 N.J. at see Dombrowski, 433, 441-43, 2523, 2529, 93 S.Ct. 37 L.Ed. 2d readily apparent, ingredient
As is an essential of the exception probable cause to believe a “car contains automobile articles that the are entitled to seize.” Chambers v. 42, 48, 1975, 1979, Maroney, 26 L.Ed.2d 399 U.S. 90 S.Ct. Patino, (1970); “proba supra, Addressing see 83 N.J. 10. the requirement, ble cause” contends that the nature of arrested-particularly the offenses for which the defendant was possession lottery slips-“bears signifi unlawful and sale cantly car on the reasonableness of belief defendant’s part argument hinges could contain contraband.” on the premise variety ways that there are a in which an automobile instrumentality can serve as an of the possession offense of lottery slips.
Although these contentions have
conceptual
a certain
validity, they hardly
carry
heavy
serve to
burden of
State’s
establishing
probable
such
cause as
justify
would
the search in
Patino, supra,
this case. See
Accordingly, justified the search of the car has not been within exception, as the automobile and therefore the evidence suppressed seized must be unless on some other admissible grounds.
IV The justify State also seeks to the vehicle search as incident to permissible the arrest of the The defendant. rationale for and scope authoritatively by of such searches are defined the United California, Supreme key supra, States Court in Chimel v. in this opinion: section from the arresting When an arrest is it is reasonable for the officer to search the made, might in that the latter seek to use arrested order to remove person any weapons in to resist or effect his the officer’s Otherwise, order escape. safety might endangered, it is addition, well be and arrest itself frustrated. arresting officer to search for and seize evidence reasonable for the any entirely on in its concealment or destruction. And the arrestee’s order prevent person might grab the area into which an arrestee reach in order to a or weapon governed gun a table items be a like rule. A on must, course, evidentiary by dangerous is arrested can be to the or in a drawer in front of one who clothing in There officer as one concealed of the arrested. person justification, for a of the and the search arrestee’s therefore, ample person control”-construing area “within his immediate to mean the area phrase might gain
from within which he
of a
or destructible
possession
weapon
evidence.
justification,
searching
There is no
for
however,
comparable
routinely
searching
room other than that in which an arrest
for that
oceurs-or,
matter,
through all the desk drawers or other closed or concealed areas in that room
well-recognized
itself.
in the absence of
be
searches,
Such
exceptions, may
judicial
a
made
under
search warrant.
“adherence to
only
authority
mandated
the Fourth Amendment
no less.
atU.S.
processes”
requires
[395
(footnote omitted).]
strands of
to the Fourth Amendment
constitutional
California, supra,
must
kept untangled.
be
See Chimel
n.
n.
at
Where
The relevant appear to be those which places disclose what person under arrest presently could reach at the time the arrest is undertaken and likely how it is that he attempt would resistance or escape or destruction of Important evidence. considerations are whether the arrestee placed has been restraint, under some form of positions defendant and the arresting vehicle, officer in relation to the difficulties to be encountered in gaining access to the vehicle or particular to the searched, area therein and the number of present compared officers with the persons number of arrest bystanders ed or in the vicinity. LaFave, immediate See W. supra at 7.1. §
Application of these criteria to the facts before us mandates the conclusion that the search properly was not inci dent to an arrest and that the evidence obtained therefrom was properly suppressed. At the time of the search of defendant’s car, he was handcuffed and in police parked seated car to the rear of his own vehicle. There were at least three State Troopers present. Under these circumstances he could not reach car, even into other areas of the let alone into his own given vehicle. presence son, And young of his highly it was improbable have, that he have, could or even would sought resistance, means of escape, or destruction of evidence.
V Finally, we agree Appellate with the Division’s conclu sion that justified search cannot be as legitimately precau tionary ground on the that the had permit decided to *9 station after the to his own car to
defendant drive plan we know was abandoned after the which now arrest-a accomplished, 351. supra had been see n. at search which the officer had in mind We note first the course of action that suggested is not that defendant in defendant, not and it any was proposed arrangement. not The circumstances do consented to the hypothesized way emerged a state intention and to have at from any point unexpressed appear created “They in event were as would have been entirely by police. such right gave them for not have to create a situation which a pretext did searching control.” United the area defendant’s immediate States beyond (7 1976). F,2d 904 Cir. Griffith, 900, 236.] [167 N.J.Super. justification Because there was no for the search of automobile, properly sup- were defendant’s the fruits thereof pressed.
Affirmed.
HANDLER, J., dissenting. Although majority correctly question the- has both defined the accurately presented by appeal and identified the control- this and, principles those in so ling principles, misapplied it has recog- majority result. As the doing, has reached an erroneous nizes, appeal presented by this is whether the issue “[t]he may constitutionally conduct a warrantless search an automo- stopped public highway when the on a and arrested bile driver warrant.” Ante at to a lawful 349. pursuant The controlling acknowledged by today, as the Court are principles, arrests, regarding those searches incident lawful enunciat- California, 762-763, 89 ed in Chimel v. 395 U.S. Ante 23 L.Ed.2d at 349. The conclusion principles be these to the factual applying that must reached however, case, setting of the instant is that search question here a and was thus was incident to lawful arrest undeniably therefore constitutional. I dissent. nor complex arrest were neither circumstances Welsh’s his
ambiguous. Police had a warrant arrest for The State he gambling-related offenses and information that various When visiting particular bowling alley day. be on that would emerged bowling alley, entered his small Welsh from *10 foreign son, car with his two- or three-year-old proceeded and away, to drive the immediately State Police officers followed in their vehicles pull and directed him to to the side of the road. reading defendant, After the arrest warrant to the officers automobile, him, ordered him out of his placed handcuffed and police presence son, him in a cruiser. The of defendant’s young however, raised valid concerns in the minds of the officers as to the transport most advisable police method to defendant to the station. The officers determined that . “instead of transporting him back to Princeton Police [the] [State barracks] processing,” preferable for it was for them to “allow to [Welsh] drive his car back down there where it wouldn’t create a [own] problem to his son.” allowing Prior to defendant to reenter his automobile, however, police the conducted a limited search of portions the of that vehicle that would be within the immediate control of the driver during thereof. It was this limited search envelope that the containing cash and betting slips was discover- ed under the dashboard the vehicle.
No one disputes the reasonableness or validity either of the arrest of defendant Welsh or the arrest warrant under 350; arrest was effected. that See ante at which 167 N.J.Su- per. (App. 1979). Moreover, though Div. even Welsh arrest, remained under “problem” by because of the created presence son, of his two or three-year-old the decision arresting officers to allow defendant to drive his own car to the State Police barracks was reasonable under the circumstances proper police and constituted procedure in such a situation. There suggestion finding any is no support in the record or in judge determination of the trial that the decision of the police vehicle, officers to allow Welsh to drive his own with his son, police to headquarters any was in pretex- sense contrived or tual. Obviously, had Welsh been allowed to drive his automobile station, police to the he would have been under custodial author- ity driving; while he simply would not have been free to drive away escape Hence, or any from control. characterization being defendant as not driving “under arrest” while under such restrictions purpose presenting and for the sole himself be complete procedures arrest would to
at the station totally unrealistic. place. car that the search Welsh’s took
It is this context in- search are those principles governing this warrantless was volving to lawful arrests. This doctrine searches incident explained in clearly Ghimel follows: stated arresting officer to search made, When an it is reasonable for might use latter seek to order to remove any arrested in weapons person his the officer’s Otherwise, safety arrest or effect escape. in order resist endangered, might it is addition, well and the arrest itself frustrated. be search and seize evidence for the officer to reasonable entirely And its concealment or destruction. on the arrestee’s order prevent person might grab or an reach in order to the area into which arrestee weapon *11 governed gun of be a rule. A on a table must, like course, by items evidentiary dangerous who as to the in a drawer in front of one is arrested can be or clothing arresting of There as one concealed arrested. officer person justification, a and the for search of arrestee’s therefore, person is ample control’-construing that to mean the area area “within his immediate phrase might gain of or which he a destructible possession from within weapon at 23 2040, v. 395 U.S. 89 S.Ct. at California, 762-763, evidence. [Chimel supra, at L.Ed.2d 694.] automobiles, to as the principles applicable are searches of These 354; correctly acknowledges. Ante majority State v. Pati- no, 1, 8, (1980). N.J. 83 reentry prior search here of Welsh’s automobile his readily by fits within the boundaries delineated Chimel
therein search, noted, was time defendant under As at the offenses, including gambling conspiracy felonies. several and therefore, arresting objectively, legiti officers could Viewed those mately either destructible evidence of have believed that v. in the See weapons crimes or were secreted vehicle. Scott 1717, 1724 128, 139 13, States, 98 & n. 436 & n. United S.Ct. Snow, 13, 168, (1978); 13 77 N.J. 56 178 & n. State v. L.Ed.2d Patino, 459, 463-465, (1978); 83 at 20 supra, cf. v. N.J. State J., (the totality (Schreiber, dissenting) dispositive factor is “the Ercolano, 25, 54, circumstances”); N.J. 58 v. 79 State T., J., (Sch? (Handler, (1979) dissenting); at 71 dissent- ibi. id. 1 in? n 'iore;:-ver, th; his granting permission to drive Welsh (cid:127) a-- station because of the unforeseen ^mobile to the
359 presence son, young of his a situation not created officers, police procedure constituted reasonable and any way did not in negate the fact that defendant was to remain under arrest even while driving. so The search of those portions of the vehicle that would have been within the immedi- ate control of defendant thus constituted a reasonable search incident to a permissible lawful arrest excep- under the Chimel Wausnock, tion. See State v. 303 A.2d (Del.Sup.Ct. 637 1973) (“the applicable standard of care is not to be measured solely at the moment of search when driver passenger were automobile; outside measured, also, it is to be as of the time they may when permitted have been to return to the automo- bile”); LaFave, 3. W. Search and Seizure: A Treatise on the Fourth Amendment 9.4 at 136-137 §
In the analogous situation in which an upon individual leaving his or her vehicle properly “frisked” or searched under the “stop and Ohio, frisk” doctrine Terry 1, 20-22, v. 392 U.S. 1868, 1879-1880, (1968), L.Ed.2d 905 906 but not arrested, upheld courts have proper reasonable, limited search of the individual’s vehicle since “defendants would have and, returned to their vehicle had there weapon, been a weapon would then have been within the reach of the defend Brown, ants.” v. N.J.Super. 227, State (Law 1978); Div. accord, Wausnock, State v. supra 637; 303 A.2d at Darling, 393 A.2d (Me.Sup.Jud.Ct.1978); 532-533 Common Almeida, wealth v. 266, 272, Mass. *12 366 N.E.2d (Sup.Jud.Ct.1977).
Further, the limited search of Welsh’s automobile did not permissible exceed the scope of the warrantless search standards by enunciated Chimel. only The areas of the actually vehicle were searched those that would have been within the immediate thereof, control the of driver specifically, under the dashboard. This is obvious from the fact that the officer discovered the envelope merely by reaching under the vehicle’s dashboard. Also, the fact police that the changed here plan their transporting Welsh discovering after under the dashboard the envelope apparently which contained evidence gambling of ac- retroactively impugn propriety
tivities does not the of the search, which 351, was reasonable when made. See ante at 350 355-356. that Welsh was handcuffed majority’s upon the fact
The focus his is during search of automobile police a car the actual in at that moment being was conducted The search misdirected. control or immedi- areas within Welsh’s not to secure or sanitize reach; Cf. effectively time “neutralized.” he was at that ate search). 575, (1980) (inventory 587-588 Mangold, v. 82 N.J. allowing Rather, anticipation of Welsh it was undertaken automobile, ante presumably without handcuffs. See drive his and the decision to at 355. was valid Since the arrest here was drive his own car also allow to reenter and defendant circumstances, a Chimel procedure under these police reasonable e., a search, incident to lawful -type warrantless i. a search pretext showing of arrest, entirely proper any absent would be Griffith, v. United States on the of officers. See part the Mason, 900, (7 1976); United States 537 F.2d 904-905 Cir. Smith, (D.C.Cir.1975); State v. 140 N.J.Su- F.2d 1125-1126 75 N.J 81 per. (App.Div.1976), aff’d o.b. convincing of or appeal, In instant no evidence connivance the has officers been demon- pretext part on respect the uncontra- The court in this credited strated. trial support of the reasona- testimony by dicted offered the State is no for a conclusion There thus basis bleness of search. improper. I not was defective or do that the arrest of Welsh any lag view time between the issuance of an arrest warrant presumptive evidence of bad faith and the actual arrest itself as majority part apparently does on officers. disagree ante at 353. I therefore not share this view. See showing a majority made that apparent finding with the 356; see 167 has here been made. Ante at pretext of such fact, approach N.J.Super. majority’s itself 236. the reasonableness pretextual. somewhat It attacks expedient impugn solely an the reasonableness as constituent the search of defendant’s automobile conducted out, however, there is no pointed element of the arrest. As concluding procedures of the arrest evidential basis for here employed were unreasonable.
Since the presented by facts appeal the instant clearly consti- tute a search Chimel, incident to arrest as defined I would make finding no as to companion the State’s claim that this warrantless permissible search was also under the “automobile exception” general to the rule as set out in Carroll v. United States, 132, 149, 280, 283, 45 S.Ct. 69 L.Ed. conclusion, agree I with the assessment of the trial judge that “wisdom would dictate that search [the officers] the vehicle first to see if there was contraband in it before allowing it,” get back in here defining [defendant] contraband to include either weapons or destructible evidence.
Accordingly, I would reverse the judgment of the Appellate Division, reinstating thus the judgment and sentence of the trial court.
Justices SULLIVAN and join SCHREIBER opinion. in this For Affirmance-Chief Justice WILENTZ and Justices PASHMAN, CLIFFORD and POLLOCK-4. reversal-justices SULLIVAN,
For SCHREIBER and HAN- DLER-3.