State v. Dilley

• Decision Date: 05 July 1967
• Docket Number: No. A--140,A--140
• Citation: 49 N.J. 460,231 A.2d 353
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Theodore DILLEY, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 460

49 N.J. 460

231 A.2d 353

STATE of New Jersey, Plaintiff-Respondent, v. Theodore DILLEY, Defendant-Appellant.

No. A--140.

Supreme Court of New Jersey.

Argued May 8, 1967.

Decided July 5, 1967.

C. John Stroumtsos, New Brunswick, for appellant.

Richard S. Cohen, Asst. Pros., for respondent (Edward J. Dolan, Middlesex County Pros., attorney).

The opinion of the court was delivered by

JACOBS, J.

The defendant Dilley was convicted of carrying a concealed weapon in violation of N.J.S. 2A:151--41, N.J.S.A. His appeal to the Appellate Division resulted in a judgment of affirmance and he then appealed to this Court alleging that the State's case was based on an unconstitutional search and seizure of the weapon.

During the early weekday morning of December 29, 1964 Lieutenant Conway, a veteran member of the New Brunswick Police Department, was patrolling the New Brunswick streets in a radio police car. He was in a low income, high crime rate, section of the city when he saw two men walking on Neilson Street between Oliver and Morris Streets. It was then about 3 A.M. and as the men walked, they kept turning their heads every few steps looking to the rear. He drove on, making a series of turns, until he observed the men standing between two automobiles in a municipal parking lot. As he pulled into the lot, the men turned and walked back to the street. He followed and called to them to stop. He got out of his car, asked them what they were doing there and they replied 'nothing'. He told them they were under arrest and he gave the defendant Dilley 'a quick frisk' by patting him on the right side of his ski jacket. He felt a gun in Dilley's pocket and removed it. It was a loaded .38 caliber revolver. The other man, named Brinkley, was also found to be armed. Brinkley was convicted, along with Dilley, of carrying a concealed weapon but Brinkley has not taken any appeal.

On Dilley's pretrial motion to suppress the weapon as having been illegally obtained, Lieutenant Conway testified as to the circumstances. He knew the area very well, having been born and brought up there, and he described it in detail. He had worked in the area as a police officer for fifteen years, knew the people there and both Dilley and Brinkley were strangers to him. Their appearance and conduct in view of the time and place had naturally aroused his interest and had furnished him, as an experienced officer, with more than enough reason to suspect and inquire. Cf. People v. Beasley, Cal.App., 58 Cal.Rptr. 485, 490--491 (1967). When he heard their answer to his question as to wht they were doing, he considered that there was sufficient cause for their arrest under the New Brunswick Ordinance which provides that an apprehended person who cannot give a good account of himself and is in the city for an unlawful purpose is a disorderly person. See N.J.S. 2A:170--1, N.J.S.A.; State v. Salerno, 27 N.J. 289, 142 A.2d 636 (1958); cf. United States v. Margeson, 259 F.Supp. 256 (E.D.Pa.1966). When he frisked Dilley he did it for self-protection. He described his action as 'common police procedure' in accordance with formal instructions he had received in both federal and state police schools. He stressed that he was alone when he confronted the two men, that he did not know 'what they were carrying' and that it was 'very well possible' he could have been 'killed by one of them.'

In denying the motion, the trial court found that, in view of the circumstances, there was a valid arrest and incidental taking of the gun and, in the alternative, there was a lawful right to question Dilley and incidentally frisk him for the officer's protection. As to the first ground the defendant denies that the arrest was a lawful one and he suggests that it was a sham rather than a bona fide arrest (Taglavore v. United States, 291 F.2d 262, 265 (9 Cir. 1961)) although the record furnishes no basis whatever for that charge. He does not attack the ordinance's validity (cf. Douglas, 'Vagrancy and Arrest on Suspicion,' 70 Yale L.J. 1 (1960)) but urges that the evidence did not establish that Dilley was in fact in the city for an unlawful purpose in violation of it. See State v. Salerno, supra, 27 N.J. at 293, 142 A.2d 636, However the issue is not whether there was sufficient proof to establish an offense under the ordinance; the issue is rather whether the officer had probable cause to believe that Dilley had offended its terms by failing to give a good account of himself while in New Brunswick for an unlawful purpose. See Ricks v. United States, 228 A.2d 316, 321--322 (D.C.Ct.App.1967); Remington, 'The Law Relating to 'On the Street' Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General,' 51 J.Crim.L.C. & P.S. 386, 391 (1960); Note, 'Detention, Arrest, and Salt Lake City Police Practices,' 9 Utah L.Rev. 593, 606 (1965).

In State v. Mark, 46 N.J. 262, 216 A.2d 377 (1966) we pointed out that probable cause means less than legal evidence necessary to convict though more than mere naked suspicion; that it is a commonsensible rather than a technical concept; and that it deals with the reasonable probabilities upon which officers must act quickly for the protection of society rather than with the proof beyond reasonable doubt which the State must have to proceed to trial and conviction. 46 N.J. at 271, 216 A.2d 377; see Brinegar v. United States, 338 U.S. 160, 175--77, 69 S.Ct. 1302, 93 L.Ed. 1879, 1890--1891 (1949). Lieutenant Conway had observed the suspicious behavior of Dilley and Brinkley along Nielson Street, he knew they were strangers to the area and he observed them at three o'clock in the morning standing between two cars in the municipal parking lot, he saw them leave the parking lot as soon as they saw him arrive, and, in response to his inquiry as to what they were doing, he received an answer which tended to strengthen his suspicions that they were up to no good. Considering all of the circumstances, may it not fairly be said that the officer had probable cause for believing that Dilley and his companion were intent on stealing a car (as was confirmed by their later disclosures) and, that being so, the arrest and incidental taking of the weapon were lawful without regard to the State's ultimate ability to obtain a conviction under the ordinance. See State v. Mark, supra, 46 N.J. at 271--273, 216 A.2d 377; State v. Cook, 47 N.J. 402, 414, 221 A.2d 212 (1966). However, we need not pursue this issue for we are satisfied that the trial court's alternative ground for denial of the motion represented a sound approach to the important constitutional and enforcement problems presented and should be reaffirmed here.

The police officer's duties include vital preventive roles. In their performance he clearly should have the right to stop persons on the street for summary inquiry where, as here, the circumstances are so highly suspicious as to call for such inquiry. Reason and common sense support this procedure as do many statutory enactments and judicial decisions here and elsewhere. See People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32 (1964), certiorari denied 379 U.S. 978, 85 S.Ct. 679, 13 L.Ed.2d 568 (1965); Commonwealth v. Lehan, 347 Mass. 197, 196 N.E.2d 840 (1964); Commonwealth v. Hicks, 209 Pa.Super. 1, 223 A.2d 873 (1966); State v. Terry, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966), certiorari granted 385 U.S. 1029, 87 S.Ct. 758, 17 L.Ed.2d 677 (1967); see also State v. Taylor, 81 N.J.Super. 296, 313, 195 A.2d 485 (App.Div.1963); State v. Hope, 85 N.J.Super. 551, 554, 205 A.2d 457 (App.Div.1964); State v. Bell, 89 N.J.Super. 437, 444, 215 A.2d 369 (App.Div.1965); cf. United States v. Vita, 294 F.2d 524, 530 (2 Cir. 1961), certiorari denied 369 U.S. 823, 82 S.Ct. 837, 7 L.Ed.2d 788 (1962); People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658, 660 (1963); Commonwealth v. Ballou, Mass., 217 N.E.2d 187, 190 (1966), certiorari denied 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967); Willey v. Peace (1951) 1 K.B. 94, 96--97 (1950). See also ALI, Model Code of Pre-Arraignment Procedure § 2.02(2) (Tent. Draft No. 1, 1966); Warner, 'The Uniform Arrest Act,' 28 Va.L.Rev. 315, 344 (1942); 41 St. John's L.Rev. 610 (1967); 4 Houston L.Rev. 589 (1966); 50 Cornell L.Q. 529 (1965); 65 Colum.L.Rev. 848 (1965); 30 Brooklyn L.Rev. 274 (1964); 33 Fordham L.Rev. 211 (1964); cf. Traynor, 'Mapp v. Ohio At Large In the Fifty States,' 1962 Duke L.J. 319, 334.

In People v. Rivera, supra, several city detectives were patrolling in a police car early in the morning when they saw two men acting suspiciously in front of a bar and grill. When the men saw the detectives they started to leave. At that point one of the detectives approached them, told them he was a policeman and frisked the defendant. He felt a gun and removed it. The lower court granted the defendant's motion to suppress but this was reversed by the Court of Appeals with Judge Fuld dissenting. In the course of his majority opinion, Judge Bergan pointed out that the right to stop and question a person whose presence or conduct is suspicious was recognized at common law and is now generally acknowledged 'as a reasonable and necessary police authority for the prevention of crime and the preservation of public order.' 252 N.Y.S.2d at 462, 201 N.E.2d at 35. Elsewhere in his opinion he had this to say:

'The authority of the police to stop defendant and question him in the circumstances shown is perfectly clear. The business of the police is to prevent crime if they can. Prompt inquiry into suspicious or unusual street action is an indispensable police power in the orderly government of large urban communities. It is a prime function of city police to be alert to things going wrong in the streets; if they were to be denied the right of such summary inquiry, a normal power and a necessary duty would be closed off.' 252 N.Y.S.2d at 461, 201 N.E.2d at...