State v. Campbell

• Citation: 250 A.2d 1,53 N.J. 230
• Decision Date: 03 February 1969
• Docket Number: No. A--46,A--46
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Herbert Lee CAMPBELL, Defendant-Respondent.
• Court: United States State Supreme Court (New Jersey)

Page 230

53 N.J. 230

250 A.2d 1

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

No. A--46.

Supreme Court of New Jersey.

Argued Nov. 4, 1968.

Decided Feb. 3, 1969.

James R. Zazzali, Asst. County Prosecutor, for appellant (Joseph P. Lordi, County Prosecutor of Essex County, attorney).

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

The opinion of the court was delivered by

JACOBS, J.

The defendant's conviction of possession of lottery slips was reversed by the Appellate Division on the ground that the evidence was the product of an illegal search. 97 N.J.Super. 435, 235 A.2d 235 (App.Div.1967). We granted certification on the State's application. 51 N.J. 388, 241 A.2d 7 (1968).

While on motorcycle duty, Officer Delaney of the Newark Police Department observed the defendant driving a car with only one headlight. In response to the officer's direction, the defendant pulled over to the curb. He was asked for his driver's license and registration certificate but 'he could not produce a license or any substantial identification at that time.' When asked whose car it was he said 'he didn't know' and that he had 'borrowed it from some fellow in a garage on Avon Avenue.' At this point the officer told him he was being arrested and called for a radio car. When the radio car arrived and just before the defendant was placed in it for transport to the police precinct, the officer gave him what he called a 'pat-down'. He felt a bulge, put his hand in the pocket where the bulge was located, and pulled out a large envelope which contained smaller envelopes and lottery slips. The pat-down, in the officer's language, was 'to check for weapons' and to make sure the defendant was not 'carrying anything dangerous.'

Upon his arrest, the defendant was charged with violations of R.S. 39:3--56, N.J.S.A. (lack of a lighted headlight), R.S. 39:3--29 (lack of possession of driver's license and registration certificate) and R.S. 39:3--10, N.J.S.A. (lack of driver's license). He was later indicted for unlawfully and knowingly having 'in his possession certain slips, papers and memoranda pertaining to the business of a lottery or lottery policy so-called, contrary to the provisions of N.J.S. 2A:121--3.' Following the return of the indictment, he moved to suppress the lottery slips which had been taken from his person at the time of his arrest. His motion was denied and, after a waiver of jury trial, he was tried before Judge Hayden and was found guilty. In reversing the conviction, the Appellate Division took the position that while the officer had the right to pat-down for weapons he had no right to remove the envelope and inspect its contents. It relied upon the limitations voiced in the 'stop and frisk' cases such as State v. Terry, 5 Ohio App.2d 122, 214 N.E.2d 114 (1966), aff'd, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) though those cases dealt with situations, unlike the one before us, where there was no arrest or probable cause for arrest at the initiation of the frisk or pat-down. See State v. Dilley, 49 N.J. 460, 231 A.2d 353 (1967).

In Terry the Supreme Court upheld a stop and frisk for weapons in circumstances which made such police conduct reasonable though there was no antecedent arrest or probable cause for arrest. In the course of his opinion for the Court Chief Justice Warren differentiated 'a search incident to an arrest' from the more limited search for dangerous weapons which is the hallmark of the stop and frisk, saying:

The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (780) (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. 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 (Md. Penitentiary) 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. 392 U.S. 1, 25--26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889, 908.

See also State v. Mark, 46 N.J. 262, 271, 216 A.2d 377 (1966); State v. Boykins, 50 N.J. 73, 77, 232 A.2d 141 (1967).

The fourth amendment, in expressing the constitutional guarantee against unwarranted searches and seizures, balances the rights of the individual and society and embodies the acknowledged test of reasonableness; it is only the unreasonable search and seizure that it condemns. See State v. Davis, 50 N.J. 16, 22, 231 A.2d 793 (1967). In its administration, the courts have announced various general principles including the familiar one that a search may be made as an incident to a lawful arrest. In State v. Mark, supra, we noted that such incidental search is customarily justified in the cases by the need of seizing any weapons which the defendant might use to assault the arresting officer or to effect an escape and by the further need for preventing the destruction of any incriminating evidence on the defendant's person or under his immediate control. 46 N.J. at 272, 216 A.2d 377. And we held that under the circumstances of the arrest there, the removal of the prisoner's clothing at the jailhouse for examination and for inventorying of its contents was not unreasonable or violative of any constitutional rights. 46 N.J. at 277--279, 216 A.2d 377; see Cotton v. United States, 371 F.2d 385, 392--393 (9th Cir. 1967); Burroughs v. United States, 236 A.2d 319 (D.C.Ct.App. 1967); Arabia v. State, 82 Nev. 453, 421 P.2d 952 (1966).

Earlier decisions broadly applied the foregoing principles to all custodial arrests including those for traffic violations. See State v. Deitz, 136 Wash. 228, 239 P. 386 (1925); People v. Davis, 247 Mich. 536, 226 N.W. 337 (1929); Scott v. State, 84 Okl.Cr. 171, 180 P.2d 196 (Ct.Crim.App.1947); Rucker v. State, 225 Ind. 636, 77 N.E.2d 355 (1948); see also Simeone, 'Search and Seizure Incident to Traffic Violations,' 6 St. Louis Univ.L.J. 506, 511--512 (1961); Agula, 'A Reply to Professor Simeone,' 7 St. Louis Univ.L.J. 1 (1962); Notes, 1959 Wis.L.Rev. 347, 4 Willamette L.J. 247 (1966). More recent decisions, stressing the ultimate constitutional test of reasonableness, have declined to sanction general searches as automatically incidental to arrests for traffic infractions of minor nature. See People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783 (1967); Lane v. Commonwealth, 386 S.W.2d 743, 10 A.L.R.3d 308 (Ky.1964); cf. People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433, cert. denied, 346 U.S. 833, 81 S.Ct. 57, 5 L.Ed.2d 59 (1960); State v. Quintana, 92 Ariz. 267, 376 P.2d 130 (1962); Shelton v. State, 3 Md.App. 394, 239 A.2d 610 (1968); see also State v. Scanlon, 84 N.J.Super. 427, 434--435, 202 A.2d 448 (App.Div.1964); People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16 (1959).

In People v. Watkins, supra, the defendant was arrested for a parking violation. He was searched and some policy slips were taken from his person; his motion to suppress them was denied and he was convicted on a charge of possession. The prosecution contended that the search was valid as an incident to a lawful arrest. This contention was rejected though the search was upheld as reasonable under the circumstances, apart from the arrest. In the course of his opinion, Justice Schaefer pointed out that some traffic violations might justify a search whereas others might not; illustratively, he noted that the total absence of license plates 'could reasonably suggest a serious violation of the law, as could an obscured license plate upon a car being driven in the early morning hours.' 166 N.E.2d at 437. He expressed the thought that since the true test is reasonableness, each case must necessarily turn on its own facts rather than on any hard and fast rule of supposedly simple and uniform application; he put it in the following terms:

The constitution prohibits only unreasonable searches; it permits those that are reasonable. The critical issue in each case must be whether the situation that confronted the officer justified the search. That question can not be determined by an indiscriminate application of legal concepts that were evolved to meet quite different problems. A uniform rule permitting a search in every case of a valid arrest, even for minor traffic violations, would greatly simplify our task and that of law enforcement officers. But such an approach would preclude consideration of the reasonableness of any particular search, and so would take away the protection that the constitution is designed to provide. Other courts are in accord. They have refused to establish a uniform rule to govern all searches accompanying valid arrests, but rather have examined the nature of the offense and the surrounding circumstances to determine whether the search was warranted. Cf. People v. Blodgett, 46 Cal.2d 114, 293 P.2d 57; Elliott v. State, 173 Tenn. 203, 116 S.W.2d 1009; People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16; See: Einhorn, The Exclusionary Rule in Operation, 50 J.Crim.L., C. & P.S. 144, 160 (1959); 1959 Wis.L.Rev. 347. 166 N.E.2d at 436--437.

In State v. Quintana, supra, the defendant was stopped for speeding. In response to an inquiry, he said that the car was owned by 'a friend' who lived 'up here a ways.' He acted nervously and the officers, suspecting that the car was stolen, searched the defendant for a weapon and found a package containing heroin in his clothing. He was convicted of illegal possession of...