State v. Campbell

• Decision Date: 08 November 1967
• Docket Number: No. A--1249,A--1249
• Citation: 97 N.J.Super. 435,235 A.2d 235
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Herbert Lee CAMPBELL, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 435

97 N.J.Super. 435

235 A.2d 235

STATE of New Jersey, Plaintiff-Respondent, v. Herbert Lee CAMPBELL, Defendant-Appellant.

No. A--1249.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 23, 1967.

Decided Nov. 8, 1967.

Harvey Weissbard, Orange, for appellant (Querques & Isles, Orange, attorneys).

Lawrence S. Schwartz, Asst. County Prosecutor, for respondent (Brendan T. Byrne, County Prosecutor of Essex County, attorney, Barry H. Evenchick, Asst. County Prosecutor, of counsel and on the brief).

Before Judges KILKENNY, CARTON and FRITZ.

The opinion of the court was delivered by

CARTON, J.A.D.

The County Court, sitting without a jury, convicted defendant of possession of lottery slips in violation of N.J.S. 2A:121--3, N.J.S.A. Defendant seeks a reversal on the single ground that the search of his person was unreasonable and the evidence obtained thereby (lottery slips) should have been suppressed.

On the motion before trial an officer of the Newark police force testified that on October 21, 1966, while on motorcycle duty, he observed defendant driving a 1954 Chevrolet on Bergen Street. Defendant's car stopped for a traffic light and turned into Springfield Avenue. The officer observed that the automobile had only one headlight due to the absence of a left fender.

The officer requested defendant to pull the car over to the curb and then asked him for his license and registration. Defendant supplied his own name and address, but could produce neither a driver's license nor the car registration. Defendant told the officer he had borrowed the car from a man in a garage on Avon Avenue, about five blocks away. Defendant gave the officer the first name of the man whose car he said he borrowed, but did not know his last name. Asked what police action to took at that time, the officer replied:

'Under the circumstances, I had no valid identification to prove who he was. He didn't know the owner of the car. I informed him that he was going to be locked up for unlicensed driver and with no registration, so on, and I called for a radio car.'

The officer described what happened next in the following language 'When the radio car arrived, just before placing him in the rear seat for transportation to the precince, I gave him what we cosider a pat-down, at which time I felt a bulge in his coat. I put my hand in the pocket where the bulge was, and at this time I pulled out this envelope. Looking in the envelope there was several envelopes, I believe. There was the ten and also papers that appeared to be lottery slips.'

The officer said that he then took possession of the lottery slips.

On cross-examination the officer testified that the reason he stopped the car was because of the fact that it had no headlight and that it was being operated in violation of R.S. 39:3--56, N.J.S.A. The automobile had a license plate on it. His purpose, the officer stated, in 'patting the defendant down' was 'to check for weapons' and to make sure the defendant was not 'carrying anything dangerous.' He declared that when he felt the bulge and pulled out the envelope, it was a 'large envelope'; that he looked inside and saw 'smaller envelopes and lottery slips.' 'Some of the slips were in the large envelope and some in the smaller envelopes.'

Later he issued three traffic tickets to defendant for violations of R.S. 39:3--56 (lack of lighted headlight), 39:3--29 (lack of possession of operator's license and vehicle registration), and 39:3--10 (lack of driver's license). The officer testified that he had been on motorcycle duty approximately four years. During that time he had many occasions to stop other people who could not produce their registration. This type of occurrence, he said, was not considered particularly unusual.

At the trial the objection to the introduction of the evidence was renewed. The arresting officer iterated generally the testimony he gave at the hearing on the motion and gave some additional details. He said he found a manila envelope and other papers in defendant's coat pocket. He identified ten small manila envelopes found inside the larger envelope and described their dimensions as about 3 5 or 7 . He conceded they were not very bulky individually. He gave no details as to the size of the larger envelope, its thickness, weight or texture, nor could he recall whether the other two items (apparently lottery slips) were found in an envelope or loose.

The small manila envelopes were marked as exhibits, but the envelope from which they were removed was not. Another officer who examined the envelopes identified their contents as lottery slips. He conceded that the total bulk of the entire pack of envelopes was very, very thin--'about a quarter of an inch--give or take.' Our inspection of the exhibits confirms this description. Each of the envelopes measure 4 6 1/2 is very thin, contains only one or two single slips of paper, and resembles those frequently used by banks and business concerns to hold individual salary payments to employees.

The trial court, in denying the motion, found that the arrest of defendant was valid and the search of his person, which resulted in the discovery of lottery slips, was also valid as incidental to that arrest.

The validity of the arrest for the traffic violation cannot be disputed. A police officer is authorized by statute to arrest without a warrant any person violating, in his pressure, a provision of the Traffic Act, N.J.S. 39:5--25, N.J.S.A. Nor can it be disputed that a search may 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. See State v. Boykins, 50 N.J. 73, 76, 232 A.2d 141 (1967); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780 (1964).

But evidence of transgression of a traffic law does not authorize a general search either of the person or of the vehicle involved. The guidelines for the scope of the preliminary search permissible under such circumstances are laid down in Boykins, supra 'A traffic violation as such will justify a search for things related to it. * * * If an officer decides to take a traffic violator into custody rather than to issue a summons, he may search the occupants of the car for weapons if he reasonably believes it necessary for his own protection or to prevent an escape.' (50 N.J. at p. 77, 232 A.2d at 143)

In this case the officer announced his intention of taking defendant into custody. His purpose in 'patting down' defendant was to 'check for weapons.' Consequently, the 'pat-down,' which the officer also described as a 'frisk' (a term by which this practice is more commonly known), was permissible as incident to the traffic arrest if the officer reasonably believed it necessary for his protection.

The present inquiry is not as to the legality of such a police tactic under any circumstances, or as to the reasonableness of its use in conjunction with the investigation of a traffic arrest. It concerns the extent or scope of the officer's right to make such a precautionary search for weapons,assuming that the circumstances justify such search at all. Even more specifically, the question posed is whether he may investigate further once he has ascertained the defendant possessed no weapon.

This narrow issue is pinpointed in State v. Terry, 5 Ohio App.2d 122, 214 N.E.2d 114, 120 (App.Ct.1966), certiorari granted 387 U.S. 929, 87 S.Ct. 2050, 18 L.Ed.2d 989 (1967), a case involving the validity of stopping and frisking of a pedestrian:

'However,...