State in Interest of H.B.

• Citation: 381 A.2d 759,75 N.J. 243
• Parties: STATE of New Jersey In the Interest of H. B., Juvenile-Appellant.
• Decision Date: 02 December 1977
• Court: New Jersey Supreme Court

Page 243

75 N.J. 243

381 A.2d 759

STATE of New Jersey In the Interest of H. B., Juvenile-Appellant.

Supreme Court of New Jersey.

Argued April 26, 1977.

Decided Dec. 2, 1977.

Thomas A. Pavics, Asst. Deputy Public Defender, for appellant (Stanley C. Van Ness, Public Defender, attorney).

Patricia J. Arons, Asst. Prosecutor, for respondent (Joseph P. Lordi, Essex County Prosecutor, attorney).

The opinion of the court was delivered by

HUGHES, C. J.

The appellant was adjudicated a juvenile delinquent for possession of a revolver in violation of N.J.S.A. 2A:151-41, an offense which, had he been an adult, would have constituted a high misdemeanor. His appeal, here as of right under R. 2:2-1(a)(2), challenges the majority decision of the Appellate Division upholding that adjudication after approving the trial court denial of the motion to suppress evidence on which it depended.

The sound opinion of the majority, which we affirm and specifically adopt and incorporate herein, would ordinarily suffice without more. We deem some added discussion necessary, if only to emphasize the need for a realistic State approach to the dangers presented by the modern proliferation of handguns in the possession of millions of citizens including, of course, many violent criminals. The fact and relevance of this phenomenon were noted by Chief Justice Warren in the landmark case of Terry v. Ohio, 392 U.S. 1, 23-24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889, 907 (1968):

American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.

Continuing in a footnote, the Chief Justice mentioned:

Fifty-seven law enforcement officers were killed in the line of duty in this country in 1966, bringing the total to 335 for the seven-year period beginning with 1960. Also in 1966, there were 23,851 assaults on police officers, 9,113 of which resulted in injuries to the policemen. Fifty-five of the 57 officers killed in 1966 died from gunshot wounds, 41 of them inflicted by handguns easily secreted about the person. * * * See Federal Bureau of Investigation, Uniform Crime Reports for the United States 1966, at 45-48, 152 and Table 51.

The easy availability of firearms to potential criminals in this country is well known and has provoked much debate. See e. g., President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 239-243 (1967). Whatever the merits of gun-control proposals, this fact is relevant to an assessment of the need for some form of self-protective search power. (392 U.S. at 24 n.21, 88 S.Ct. at 1881, 20 L.Ed.2d at 907).

There are projected to be no less than 40 million handguns in circulation in this country today, with about 2.5 million being added to that pool each year. United States Conference of Mayors, National Forum on Handgun Control Proceedings at 6 (forum in Los Angeles, Ca. May 27-29, 1975).

This volatile mixture, of violence and the surfeit of handguns which is its primary co-efficient, presents much danger to law-abiding society and a particular threat to the uniformed law enforcement community which is so frequently its target. This astounding situation is a factor which cannot be ignored in considering the constitutionality of the police conduct here involved.

The danger is particularly acute in an urban community such as the City of Newark, where this case arose. The Eisenhower Commission found that in large United States cities handguns assisted in 86 percent of all aggravated assaults committed with guns, 92 percent of homicides by gunfire and 96 percent of robberies committed with guns. National Commission on the Causes and Prevention of Violence, To Establish Justice, To Insure Domestic Tranquility xxvi (1969). And while a few states, including New Jersey, have strong and strictly enforced gun control laws, N.J.S.A. 2A:151-32 et seq.; N.J.S.A. 2A:151-41 et seq., their effectiveness is limited because in many states gun controls are virtually non-existent or largely ignored. As of 1971, eight states had no law against felons buying firearms, and in 35 states mentally ill persons could legally own guns. Comment, "Shooting to Kill the Handgun: Time to Martyr Another American 'Hero'," 51 J. Urban Law, 491, 512 (1974).

New Jersey, highly congested and with its share of crime and it causes, is no stranger to this national malady. Twenty-four police officers were killed by guns in this State during the ten year period ending in 1976. During 1976, there were a record five New Jersey police officers killed and 3,903 assaulted in the line of duty. Of every 100 municipal police officers, 21.5 were assaulted during 1976. New Jersey State Police, Uniform Crime Reports for the State of New Jersey 1976, at iv. The State Police Superintendent reports that since 1971, 21,719 guns have been delivered to him for destruction, by police officials and prosecutors. These weapons were seized as a result of illegal use or possession, the vast majority having been used in the perpetration of a crime.

Such continuing trends would make even more relevant today the prophetic warning of the United States Supreme Court in Terry v. Ohio, supra, 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. (392 U.S. at 23-24, 88 S.Ct. at 1881, 20 L.Ed.2d at 907-08).

The Chief Justice went on to say:

A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1652, 18 L.Ed.2d 782, 794 (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a "full" search, even though it remains a serious intrusion.

* * * The protective search for weapons * * * constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person. It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime. * * *

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. (Id. at 25-27, 88 S.Ct. at 1882-83, 20 L.Ed.2d at 908-09 (emphasis added)).

Accepting these rules as representing bedrock constitutional law, it remains to apply them to the factual base as stated by the Appellate Division:

On December 16, 1974 Patrolman Finn of the Newark Police was on duty in a radio car when he received a radio dispatch from police headquarters that a black individual wearing a black hat, black leather coat and checkered pants was in Ray's Luncheonette at 407 South Orange Avenue with a gun in his possession.

Officer Finn and his partner proceeded to the location. As Finn entered the front door he saw approximately 15 persons in the luncheonette. He also observed a black man with a black hat, black leather coat, checkered pants and sneakers seated in a rear booth with three girls.

He thereupon walked up to the booth and told the male occupant, identified as defendant, to stand and put his hands on the wall. Finn then patted him down or frisked him, and as he was doing so he felt an object in the right hand coat pocket which felt like a gun. He reached into the pocket and removed a .32 caliber revolver. (139 N.J.Super. at 465, 354 A.2d at 368).

We will assume in the absence of evidence to the contrary that the information in the radio dispatch from police headquarters was based upon no more than an anonymous "tip." The record does establish, however, that the description therein of H.B.'s person and clothing was found to be precisely accurate; that none other of the 15 males in the luncheonette was similarly dressed or "fitted...