State v. Boykins

• Decision Date: 20 July 1967
• Docket Number: No. A--150,A--150
• Citation: 50 N.J. 73,232 A.2d 141
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Marvin BOYKINS, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 73

50 N.J. 73

232 A.2d 141

STATE of New Jersey, Plaintiff-Appellant, v. Marvin BOYKINS, Defendant-Respondent.

No. A--150.

Supreme Court of New Jersey.

Argued May 24, 1967.

Decided July 20, 1967.

Richard B. McGlynn, Asst. County Prosecutor, for appellant (George A. Franconero, Asst. County Prosecutor, on the brief, Brendan T. Byrne, Essex County Prosecutor, attorney).

William P. Ries, Newark, for respondent.

The opinion of the court was delivered by

WEINTRAUB, C.J.

Defendant, indicted for possession of a narcotic drug, obtained a pretrial order suppressing evidence obtained by a search of an automobile in which he was a passenger. The Appellate Division granted leave to appeal and affirmed the order. We granted the State's petition for certification. 48 N.J. 448, 226 A.2d 435 (1967).

At 8:45 P.M. on September 14, 1965 two detectives in plain clothes, riding in an unmarked car, saw an automobile with four men, of whom defendant was one, proceeding along Bergen Street in the City of Newark at a high speed and in a reckless manner. Because of a red light defendant's car stopped 50 to 75 feet short of the intersection of Bergen Street with 18th Avenue. The detectives drew up on the left, identified themselves as police officers, and directed the driver to pull to the curb. The driver said he would, but when the light changed, 'he took off with his wheels screeching,' swerving toward the police car in an effort to hit it, and then made a right turn into 18th Avenue. The police car had to be pulled sharply to the left to avoid the collision. The officers took up the chase at speeds in excess of 60 miles per hour. The police siren was turned on and shots were fired in the air and then at the car to disable it. Defendant's car narrowly missed two pedestrians, who had to climb a parked automobile 'like a squirrel climbing a tree.' The car turned into Jelliff Avenue 'on two wheels * * * managed to right itself and then came to a sudden stop' on the wrong side of the street, at the Waverly Freight Yards. Defendant, who was in a rear seat, and two others fled from the car, and stopped only after warning shots were fired. Other police cars, summoned during the chase, converged on the scene within a minute. Defendant became violent; it took four officers to confine him to a police car.

The fourth occupant of defendant's car, a passenger in the front, was dead at the scene. We gather that it was later determined that he had been hit by a bullet fired by the pursuing officers. The officers did not suggest they thought they were dealing with a homicide, and hence we will not consider that circumstance in deciding the issue before us. At the same time, it is irrelevant whether the shooting was warranted, and of course that matter was not tried.

Defendant and the others were searched on the spot. The search of defendant revealed nothing, and we gather that the search of the other men also produced no evidence of criminal involvement. But a search of the car, made at the scene while defendant and his companions were still there, revealed an open knife under the front seat on the driver's side and a brown manila envelope on the floor on the passenger's side. The envelope contained marijuana.

In granting the motion to suppress, the trial court discounted the claim that the driver of the fleeing car tried to commit an assault and battery in swerving toward the officers' car. The trial court then found that although the testimony warranted an arrest for speeding, N.J.S.A. 39:4--98; reckless driving, N.J.S.A. 39:4--96; or careless driving, N.J.S.A. 39:4--97, an arrest for such traffic violations would not justify the search of the automobile. The trial court relied upon State v. Scanlon, 84 N.J.Super. 427, 202 A.2d 448 (App.Div.1964), which held that an arrest for a broken taillight and for failure of the operator to have his driver's license with him, would not support a search of the vehicle.

Noting that a search could be made as an incident to an arrest if reasonably necessary to protect the arresting officer from attack, to prevent escape, or to prevent destruction of evidence (84 N.J.Super. at pp. 434--435, 202 A.2d 448), the trial court found no basis for the search in the present case because the occupants were no longer in the car and in fact were securely handcuffed by the time the vehicle was searched, even though the time interval was no more than minutes. And while apparently recognizing that the behavior of the defendant and his companions was strongly suggestive of involvement in crime, the trial court emphasized that the State was not able to point to any specific criminal event, known to the officers at the time of arrest. On that ground the trial court held inapplicable our decision in State v. Fioravanti, 46 N.J. 109, 215 A.2d 16 (1965), certiorari denied, 384 U.S. 919, 86 S.Ct. 1365, 16 L.Ed.2d 440 (1966).

The Appellate Division affirmed on the basis of the trial court's opinion.

Surely not every traffic violation will justify a search of every part of the vehicle. See, generally, annotation, 10 A.L.R.3d 314 (1966). A traffic violation as such will justify a search for things related to it. So, for example, if the operator is unable to produce proof of registration, the officer may search the car for evidence of ownership, People v. Prochnau, 59 Cal.Rptr. 265 (Ct.App.1967); Draper v. State of Maryland, 265 F.Supp. 718 (D.Md.1967); or if the officer has reason to believe the driver is under the influence of liquor or drugs, he may search the car for alcohol or narcotics, State v. Parker, 81 Idaho 51, 336 P.2d 318 (Sup.Ct.1959); People v. Jackson, 241 Cal.App.2d 189, 50 Cal.Rptr. 437 (Dist.Ct.App.1966). The State argues before us that the search here made could be justified on the latter ground. It could, if the officer had testified that the driver's behavior or condition had suggested he was under such influence but the record is silent in that regard.

If an officer decides to take a traffic violator into custody rather than to issue a summons, he may search the occupants and the car for weapons if he reasonably believes it necessary for his own protection or to prevent an escape. As noted above, the trial court rejected that basis for a search, saying that once the driver and his companions were securely handcuffed outside the car, there was no danger of injury to the officers or of escape. We assume the trial court found as well that the officers had already made a final decision not to transport the prisoners in defendant's car and that hence there was no need to search the automobile for weapons in connection with such use of it.

We need not pass upon the issue that limited context would raise, because the search was valid upon another basis. The facts recited above plainly suggest the driver and his passengers or one or more of them were involved in some substantial criminal affair. Ordinary men do not run the risks they ran to avoid a traffic ticket. There is no reason to suppose the driver doubted the detectives were in fact officers of the law. He acknowledged the order to pull to the curb and said he would. He was not in a desolate locale. On the contrary the scene was a populated area of a large city. Such behavior strongly suggests a probability that the occupants had on their persons or in the car contraband or instruments or the fruit of crime. It seems to us that in such circumstances the public interest requires that the men and the vehicle be searched even though at that stage the officers know of no specific offense, other than a traffic violation, upon which an arrest could be made.

The Fourth Amendment forbids only such searches as are unreasonable. The familiar doctrine that a search may be made as an incident to an arrest does not exhaust the subject of reasonable searches without a warrant. Rather it represents merely a category of reasonable searches. See People v. Webb, 56 Cal.Rptr. 902, 424 P.2d 342 (Sup.Ct.1967). This is made plain in Cooper v. State of California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). There a search was made a week after the vehicle had been seized in connection with a narcotics violation. It was argued on the basis of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), that the search could not be deemed an incident of the arrest because it was not made at the time of the arrest. The Supreme Court said that Preston did not hold that a search without a warrant can be reasonable only if it is made as an incident to an arrest. It pointed out that in Preston the search was sought to be sustained solely upon that basis, and that that effort failed because (1) the offense for which the defendant was there arrested was vagrancy and since there could not be an instrument, fruit, or evidence of that offense in the vehicle, there could not be a search upon that premise, and (2) insofar as the protection of the arresting officers and prevention of an escape are concerned, there was no need for a search long after the defendant was jailed. Stressing that Preston held no more and did not say that to be reasonable a search without a warrant must be connected with an arrest, the Court proceeded to consider whether the basis asserted for the search in the case before it repelled a charge of unreasonableness. The Court could see nothing unreasonable in searching a car which the police held in custody as evidence in connection with a forfeiture proceeding, saying 'It would be unreasonable to hold that the police, having to retain the car in their garage for such a length of time, had no right, even for their own protection, to search it' (386 U.S. at 61, 87 S.Ct. at 791, 17 L.Ed.2d at 733). ¹

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924), it was contended that the officers could not arrest the driver because the driver's offense constituted a mere misdemeanor which in the circumstances...