State v. Braxton

• Citation: 111 N.J.Super. 191,268 A.2d 40
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gordon Wilfred BRAXTON, Defendant-Appellant.
• Decision Date: 16 July 1970
• Court: New Jersey Superior Court – Appellate Division

Page 191

111 N.J.Super. 191

268 A.2d 40

STATE of New Jersey, Plaintiff-Respondent, v. Gordon Wilfred BRAXTON, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued May 4, 1970.

Decided July 16, 1970.

Barry S. Greenberger, New Brunswick, for defendant-appellant (Valenti & Greenberger, New Brunswick, attorneys).

Arthur J. Timins, Asst. Prosecutor, for plaintiff-respondent (Karl Asch, Union County Prosecutor, attorney).

Before Judges GOLDMANN, LEWIS and MATTHEWS.

The opinion of the court was delivered by

MATTHEWS, J.A.D.

Defendant moved to suppress certain evidence as being the fruit of an unlawful search and his motion was denied in the trial court. We granted leave to appeal, and now reverse.

On January 23, 1969 two Westfield police officers cruising in a patrol car saw a vehicle driving at a moderate speed through the business section of town. Because, they said, the driver was wearing gloves (note it was January); and because of the slow speed, and again because the two occupants, whom they did not recognize, appeared to be looking from side to side, the officers became 'suspicious' and trailed this vehicle at a distance. A short while later, the vehicle was stopped by the police who asked the driver for identification. He produced his driver's license and registration card. Due to the ragged condition of the registration, the police were unable, they said, to read the entire license number, although they could make out the three letters and the first two of the three numbers, all of which matched the license plates. Only the final digit was in doubt. Moreover, the name and address of the owner and the physical description of the vehicle completely matched defendant driver's license and the car itself. Nonetheless, the police felt the circumstances to be suspicious and allegedly ordered the occupants out of the car and frisked them. Defendant alleges that one of the officers ordered him to open the trunk, but the police state that the compliance with their request was wholly voluntary. A search of the trunk, however, disclosed nothing. The police then confiscated the keys to the vehicle and placed defendant and his companion in the patrol car, leaving the 'suspect' motor vehicle unlocked and unattended, although they stated that another officer would be along shortly to guard the vehicle. Defendant and his passenger were taken to police headquarters where they were questioned at length as to the ownership of the vehicle. Defendant allegedly requested permission to call a lawyer, but the request was denied. After approximately 1/2 hour, defendant's ownership of such a car was confirmed through Trenton, but the police evinced a desire to check the serial number of the vehicle. Defendant objected, but was physically taken back to the vehicle. There, one of the officers opened the car door and attempted to read the serial number on the doorpost. He claims at this point he saw something protruding from under the front seat. The protrusion proved to be a sawed-off shotgun, which was immediately seized and defendant was thereupon charged with illegal possession of a weapon.

As noted, defendant moved to suppress the evidence thus seized on the ground that it was the fruit of an illegal search and seizure. The trial judge, in a rather extended oral opinion, found that the police had no probable cause to conduct a search, but further held that the gun was discovered as an incident to a lawful stopping and investigation and was therefore admissible. We might observe that there is nothing in the facts stated to be found by the trial judge which supports his conclusion.

The threshold question here is whether the 'investigation' conducted by the police officer was or was not a 'search' so as to require a search warrant, an attendant valid arrest, or probable cause. The State contends that the entire incident was merely an investigatory detention of limited intended scope and that the discovery of the gun was merely a fortuitous by-product of the investigation.

It is, of course, well established that the fruits of an unconstitutional--I.e., legally 'unreasonable'--search and seizure must be suppressed at any later criminal proceeding. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, N.J.S.A. 39:3--29 explicitly authorizes the police to stop vehicles at random and to demand the production of a driver's license and a motor vehicle registration. Cf. N.J.S.A. 39:5--25; State v. Padavano, 81 N.J.Super. 321, 328, 195 A.2d 499 (App.Div.1963). In State v. Kabayama, 98 N.J.Super. 85, 236 A.2d 164 (App.Div.1967), aff'd o.b. 52 N.J. 507, 246 A.2d 714, the temporary stopping of automobiles for purposes of verifying ownership and driving credentials was held to be a valid and reasonable exercise of police power.

If contraband or weapons are visible from outside the vehicle, the observation of such evidence, absent a prior physical entry, does not constitute a 'search' within the constitutional meaning. State v. Gosser,50 N.J. 438, 447, 236 A.2d 377 (1967); State v. Griffin, 84 N.J.Super. 508, 517, 202 A.2d 856 (App.Div.1964); Campbell v. United States, 110 U.S.App.D.C. 109, 289 F.Supp. 775 (D.C.Cir.1961); United States v. Jankowski, 28 F.2d 800, 802 (2 Cir. 1928); see also State v. Smith, 37 N.J. 481, 496, 181 A.2d 761 (1962); State v. Murphy, 85 N.J.Super. 391, 399, 204 A.2d 888 (App.Div.1964), aff'd 45 N.J. 36, 211 A.2d 193 (1965); State v. Mark, 46 N.J. 262, 271--272, 216 A.2d 377 (1966).

Under the facts adduced below, the gun was not visible until the police further checked out the interior of the vehicle. While N.J.S.A. 39:3--9 authorizes temporary detention to check the license and registration, it is apparent that the Westfield police exceeded a simple documentary check and were actually conducting a 'search,' purportedly of limited intent. Indeed, the officer did not recognize the object as a gun until he removed it from under the seat. In State v. Taylor, 81 N.J.Super. 296, 195 A.2d 485 (App.Div.1963), it was held that an officer's opening of the car door and bending over into the vehicle to retrieve an unidentifiable object under the seat was 'unquestionably' a search and seizure. Further, we might note the particular language of State v. Boykins, 50 N.J. 73, 77, 232 A.2d 141 (1963), where it was said that if the motor vehicle operator were unable to produce adequate proof of ownership, the investigating officer might 'search' the car for proof of proper possession. See also, People v. Prochnau, 251 Cal.App.2d 22, 59 Cal.Rptr. 265 (Ct.App.1967); Draper v. Maryland, 265 F.Supp. 718 (D.Md.1967). It is evident, then, that the Westfield police did conduct a 'search' of defendant's vehicle, thus requiring compliance with the constitutionally mandated safeguard of 'reasonableness.'

The search of an automobile is not Ipso facto lawful or unlawful, but the permissibility of such a search is grounded on a fundamental inquiry as to its constitutional 'reasonableness.' Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); see also Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Annotation, 'Lawfulness of Search and Motor Vehicle Following Arrest for Traffic Violation,' 10 A.L.R.3d 314, 320 (1966). Moreover, the court must apply a commonsense analysis in scrutinizing the activities of the police and the reasonableness of searches. State v. Miller, 47 N.J. 273, 278, 220 A.2d 409 (1966); State v. Gosser, above, 50 N.J. at 447, 236 A.2d 377; State v. Fioravanti, 46 N.J. 109, 122--123, 215 A.2d 16 (1965), cert. den. 384 U.S. 919, 86 S.Ct. 1365, 16 L.Ed.2d 440 (1966).

As to probable cause, it is well established that the investigating officer must possess such information or suspicion as to warrant a man of reasonable caution to believe that an offense has been committed--something more than a mere incriminating inkling and less than absolute proof. State v. Taylor, above, 81 N.J.Super. at 308, 195 A.2d 485; Henry v. United States, above, at 361 U.S. 102, 80 S.Ct. 168; Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); see also Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). It is equally clear that, absent such probable cause, the citizen may proceed unimpeded--and unsearched. Clay v. United States, 239 F.2d 196 (5 Cir. 1956) (fact that driver was known gambler held insufficient to support search of car); State v. Valentin, 74 N.J.Super. 502, 181 A.2d 551 (Law Div.1962) (fact that police officer did not recognize driver or passenger not sufficient basis for search for car).

Ordinarily, an apprehension for a traffic violation will not justify a search except as to related matters--I.e., search of drunken driver's car for liquor-evidence. State v. Cusick, 110 N.J.Super. 149, 264 A.2d 735 (App.Div.1970); State v. Scanlon, 84 N.J.Super. 427, 434, 202 A.2d 448 (App.Div.1964); State v. Boykins, above, 50 N.J. at 77, 232 A.2d 141; see also United States v. Tate, 209 F.Supp. 762 (D.C.Del.1962). However, the police may search for proof of ownership where such proof is not satisfactorily produced by the driver. State v. Boykins, above, 50 N.J. at 77, 232 A.2d 141. It is tangentially material, in adjudging if the police had genuine probable cause to conduct the search, whether or not the citizen is arrested or prosecuted for the initial suspected offense. See State v. Taylor, above, 81 N.J.Super. at 309, 195 A.2d 485.

In the instant case the trial judge found that the police had no probable cause, as such, for the search. Given the minor 'discrepancy' on the ragged registration, the long period of detention, and the utter lack of indicia of guilt, it is clear that the police did, in fact, have no probable...