State in Interest of J. B.

• Decision Date: 11 October 1974
• Parties: Page 6 131 N.J.Super. 6 328 A.2d 46 The STATE of New Jersey in the Interest of J.B., Jr. Juvenile and Domestic Relations Court, Union County, New Jersey
• Court: New Jersey Supreme Court

Page 6

131 N.J.Super. 6

328 A.2d 46

The STATE of New Jersey in the Interest of J.B., Jr.

Juvenile and Domestic Relations Court Union County, New Jersey.

Oct. 11, 1974.

Tom Simon, Asst. Prosecutor, for the State (Karl Asch, Prosecutor of Union County, attorney).

Leonard Sachar, Plainfield, for the juvenile (Sachar, Bernstein & Rothberg, Plainfield, attorneys).

BRODY, J.J.D.R.C.

The juvenile, charged with delinquency for possessing more than 25 grams of marijuana, moves to supppress the fruits of a warrantless search of his person.

Plainfield police officers Peter Cochin and Robert Robinson were on radio car patrol early December 9, 1973 when at approximately 1:30 a.m. they received a dispatch from headquarters followed shortly by a dispatch from an officer at the scene of an accident. The substance of these dispatches was that a car had struck a parked car, that witnesses had observed a white male with long hair alight from the errant vehicle and flee on foot toward nearby railroad tracks, and that the ignition key was missing from the vehicle when caused the accident.

As the officers drove toward where the fleeing driver was reported heading, they saw a 15-year-old white boy with long hair walking on the sidewalk in a black neighborhood several blocks from the accident site. His lip was bleeding, his right arm appeared to be hurt and his clothes were wet. At the time, bushes along the railroad tracks were wet from an earlier rain.

The officers stopped the boy, the juvenile in this case, and asked him to account for himself. He offered a succession of three inconsistent stories. Initially he claimed to have been beaten by a 'black dude' but could not give details. He then claimed he got hurt in a tavern fight but was unable to give any corroborating detail. Finally, after being advised where he was, he described being beaten up somewhere on Richmond Street in Plainfield but was unable to give details.

Officer Cochin then conducted a full search of the juvenile. He testified that he was looking for the ignition key to the car involved in the accident. In a right jacket pocket he uncovered two plastic bags allegedly containing marijuana, whereupon he told the juvenile that he was under arrest. The officers took the boy to a hospital where they conducted a more extensive search, uncovering in one of his socks a third bag allegedly containing marijuana.

After the searches the officers learned that the vehicle causing the accident had been reported stolen. They both testified that at the time of the searches they believed the juvenile guilty only of 'hit and run.' It did not then occur to them that the car he was driving might have been stolen.

On the State's motion before hearing, the judge dismissed for lack of evidence all complaints against the juvenile predicated on his use of the car at the time of the accident.

In a juvenile case the court will suppress evidence unlawfully obtained by an unreasonable search. R. 5:8--9; N.J.S.A. 2A:4--60; State in the Interest of L.B., 99 N.J.Super. 589, 240 A.2d 709 (J.D.R.C.14968); State v. Lowry, 95 N.J.Super. 307, 230 A.2d 907 (Law Div.1967). Where the search was warrantless, the State has the burden of establishing its legality. State v. Gaudiosi, 97 N.J.Super. 565, 235 A.2d 680 (App.Div.1967). It offers to do so in this case by showing that before the search the police had probable cause to believe that the juvenile had committed any one of several offenses and that the circumstances were exigent. State v. Smith, 129 N.J.Super. 430, 324 A.2d 62 (App.Div.1974). The juvenile contends that the only offense for which there might have been probable cause was 'leaving the scene of an accident,' a motor vehicle offense which must be--but was not--committed in the presence of the officers for their search to have been lawful.

I

While the term 'arrest' is not to be used to describe taking a juvenile into custody, it will be so used in this opinion for the purpose of evaluating the lawfulness of the search. R. 5:8--2(a).

New Jersey adheres to the common-law rule that a warrantless arrest for a felony is lawful if the arresting officer has probable cause, but unlawful for a misdemeanor unless the offense was committed in the presence of the officer. State v. Smith, 37 N.J. 481, 493, 181 A.2d 761 (1962), cert. den. 374 U.S. 835, 83 S.Ct. 1879, 10 L.Ed.2d 1055 (1963). The reason for the in-presence requirement is that 'unless the officer himself knows of the offense and the offender, it is better, in the light of the less serious nature of the alleged offense, to leave the determination of probable cause for an arrest to an officer in the judicial branch.' State v. Morse, 54 N.J. 32, 35, 252 A.2d 723, 725 (1969). An exception to the rule occurs where the person arrested first admits to the officer that he committed a misdemeanor, in which event the arrest is lawful even though the offense was not committed in the officer's presence. State v. Morse, Supra at 35, 252 A.2d 723.

New Jersey does not classify its offenses as common-law misdemeanors and felonies. As to the application of the inpresence requirement, the distinction depends upon the maximum punishment attached to the offense: an offense carrying a punishment of imprisonment up to one year is the equivalent of a common-law misdemeanor, and an offense carrying a maximum imprisonment in excess of one year is the equivalent of a common-law felony. State v. Doyle, 42 N.J. 334, 348, 200 A.2d 606 (1964). Thus, the in-presence requirement applies to disorderly persons and motor vehicle offenses. N.J.S.A. 2A:169--3; N.J.S.A. 39:5--25.

A lawful custodial arrest itself justifies a full search of the person arrested. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). When facts known to the officer meet the criteria for a lawful custodial arrest, he may legally conduct a full search of the person even though, as here, the formal arrest comes after. State v. Smith, 129 N.J.Super. 430, 324 A.2d 42 (App.Div.1974). However, when facts known to the officer fall short of meeting the criteria for a lawful arrest, he may not legally conduct such a search because a full search of the person is a sufficient intrusion on privacy to require being tested by the same criteria applied to a custodial arrest.

Ordinarily there is no need to make the point that the criteria for conducting a lawful full search of the person and making a lawful custodial arrest are interchangeable, because ordinarily they are defined and circumscribed by the same constitutional standard. Cf. Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). In this case, however, we are also dealing with a nonconstitutional standard: the in-presence requirement, which heretofore has been expressed as a criterion for a lawful warrantless arrest. I conclude that it should be applied as well as a warrantless full search of the person in the absence of an attendant formal arrest. References herein to criteria for arrest are therefore to be understood as criteria for a search preceding formal arrest.

The criteria for the lawful arrest of a juvenile are those applicable to arrest for an adult offense (II hereafter) supplemented by criteria contained in rules of court pertaining to juvenile offenses (III hereafter). State v. Smith, 32 N.J. 501, 531--532, 161 A.2d 520 (1960); N.J.S.A. 2A:4--54.

II

A preliminary question is whether an officer may lawfully make a warrantless arrest for a motor vehicle offense. R. 7:6--1(a) provides in part that for motor vehicle violations 'the complaint and summons shall be a uniform traffic ticket * * *.' In State v. Jones, 122 N.J.Super. 585, 592, 301 A.2d 185 (Cty.D.Ct.1973), the court concluded that the rule thereby prohibited any warrantless arrest and that the rule supplanted the warrantless arrest procedure provided for in N.J.S.A. 39:5--25, citing Winberry v. Salisbury, 5 N.J. 240, 74 A.2d 406 (1950), for the supremacy of a rule over a statute. I do not read the rule as establishing the exclusivity of the complaint and summons procedure. R. 3:4--1, made applicable to motor vehicle offenses by R. 7:3--1, establishes procedures to be followed in making a warrantless arrest.

The state describes the offense which prompted the search as 'leaving the scene of an accident.' Conceding that the inpresence requirement applies to this motor vehicle offense, the state contends that it occurred in the presence of the arresting officers in that they had probable cause to believe that the juvenile was literally leaving the scene of an accident when he was stopped and searched.

The offense is defined in N.J.S.A. 39:4--129 which requires the driver of a vehicle involved in an accident to identity himself in various ways depending upon whether personal injury or property damage is involved and depending upon whether the other vehicle or vehicles are attended at the time of the accident. After an accident involving only property damage to an unattended vehicle it is sufficient if the driver attach a notice of his identity to the other vehicle. Thus the question raised is whether the juvenile's failure to leave behind notice of his identity was a continuing offense still occurring in the presence of the officers when they arrested him several blocks from the scene of the accident.

Whether failure to perform a legally mandated act in time, constitutes a continuing offense has met with varying judicial responses. See State v. Morse, Supra, overruling State v. Orr, 93 N.J.Super. 140, 225 A.2d 157 (App.Div.1966); Contra, Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). In the present case, however, that question need not be reached. There are two elements to the offense under consideration: (a) driving a vehicle involved in an accident and (b) failing to leave behind proper notice of identification. Unless all elements of an offense occur in the presence of the...