State v. Harbatuk, A--664

• Decision Date: 11 May 1967
• Docket Number: No. A--664,A--664
• Citation: 229 A.2d 820,95 N.J.Super. 54
• Parties: The STATE of New Jersey, Plaintiff-Appellant, v. John HARBATUK, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 54

95 N.J.Super. 54

229 A.2d 820

The STATE of New Jersey, Plaintiff-Appellant, v. John HARBATUK, Defendant-Respondent.

No. A--664.

Superior Court of New Jersey

Appellate Division.

Argued March 20, 1967.

Decided May 11, 1967.

William H. von Oehsen, Jr., Princeton, for appellant (Gordon D. Griffin and William H. von Oehsen, Jr., Princeton, attorneys for Township of Princeton, Henry A. Hill, Jr., Princeton, of counsel and on the brief).

Joseph A. Hoffman, Asst. Atty. Gen., for Arthur J. Sills, Atty. Gen., amicus curiae (Thomas J. Savage, Elizabeth, on the brief).

No brief and no appearance on behalf of respondent.

Before Judges LEWIS, LABRECQUE and LEONARD.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

Pursuant to leave granted plaintiff appeals from an order of the municipal magistrate of Princeton Township suppressing certain evidence in connection with the charge against defendant John Harbatuk of violation of N.J.S.A. 39:4--50 (driving while under the influence of intoxicating liquor).

On September 28, 1965 at about 10 P.M. the local police were alerted to be on the lookout for the allegedly intoxicated driver of an automobile which had been involved in an accident on Humbert Street in the Borough of Princeton (borough). The call was relayed to Sergeant Carnevale of the borough police who, with another officer, proceeded to the scene of the accident. By the time they arrived the driver had left the scene but they were given a description of the vehicle and its registration number.

While searching for the offending vehicle Carnevale observed a station wagon pass on U.S. Highway Route 206 which bore the registration number he had received, and began to follow it. As he did so he found himself in the adjacent Township of Princeton (township), so he radioed the township police giving his location and direction. As he proceeded on Route 206 the car ahead of him was weaving from side to side and he finally ordered the driver (defendant) to pull over, using his police car lights and siren for this purpose.

Carnevale's radio message to the township police was heard by Sergeant Petrone of that department. As he came out of police headquarters and was about to enter his car, defendant's station wagon went by, followed by Carnevale in the patrol car. Petrone followed them and arrived just as Carnevale was asking defendant for his license and registration.

On the basis of his observation of defendant, Petrone determined to test him for sobriety and directed him to get into the borough patrol car. Defendant did so and was thereafter driven by Carnevale to the borough police headquarters. In the meantime, Petrone drove defendant's car to the township parking lot and secured it. At borough police headquarters Petrone administered the test, using a Breatholizer which was kept there and shared by the police departments of both the borough and township. He concluded from the test that defendant was under the influence of intoxicating liquor, and a summons and complaint in the form of a uniform traffic ticket was issued by Carnevale calling for defendant's appearance in the municipal court of the township on October 6, 1965. Petrone had suggested that Carnevale sign the complaint because he had witnessed defendant's operation of the car.

On November 11, 1965, when the matter came on to be heard in the township municipal court, defendant moved for dismissal of the complaint on the ground that his arrest had been unlawful and the evidence obtained as a result thereof was inadmissible against him. The magistrate held a hearing on the motion and thereafter entered an order denying the motion to dismiss but granting 'the motion to suppress the evidence obtained after the unlawful arrest * * *.' In his written opinion the magistrate concluded that the arrest had occurred 'when the (borough) officers stopped the defendant,' and that the proceedings were not vitiated because a summons, rather than a warrant, had been utilized to bring defendant before the court. There is no appeal by defendant from the latter ruling.

The magistrate concluded that the arrest was unlawful because the jurisdiction of Carnevale as a police officer of the borough did not extend beyond the borough limits; hence he was without power to make an arrest in the township. Appellant urges, Inter alia, that (1) the magistrate lacked jurisdiction to suppress the cited evidence; (2) the initial stopping of the vehicle by Carnevale did not constitute an arrest, and (3) if it did, Carnevale was authorized to make the arrest because (a) as a police officer he had state-wide authority, or (b) the 'fresh pursuit' statute, N.J.S. 2A:156--1 et seq., N.J.S.A., authorized him to do so. The Attorney General argues that although Carnevale's jurisdiction as a police officer did not extend beyond the borders of the borough, he was vested with the authority as a private citizen to make an arrest in the township for a violation of N.J.S.A. 39:4--50 committed in his presence.

Passing first to consideration of the jurisdictional point raised, we hold that the township magistrate was without authority to enter that portion of the order which purported to suppress the evidence obtained following defendant's arrest. The applicable rule, R.R. 3:2A--6(a), requires that motions to suppress evidence be made only in the Superior Court of County Court for the county in which the evidence was obtained, even though the offense charged be within the jurisdiction of a municipal court. State v. Swiderski, 94 N.J.Super. 14, 19, 226 A.2d 728 (App.Div.1967); cf. State v. Ferraro, 81 N.J.Super. 213, 218, 219, 195 A.2d 227 (Cty.Ct.1963). Accordingly, that portion of the court's order is reversed and set aside.

We likewise disagree with the trial judge's conclusion that defendant's arrest took place when he was stopped by Carnevale and his companion, Harris.

While the order appealed from refers to 'the evidence obtained after the unlawful arrest,' we gather from the briefs and oral argument that the evidence suppressed consisted of the results of the Breatholizer test made by Petrone. Since State v. Swiderski, supra 94 N.J.Super. at p. 24, 226 A.2d 728, it can hardly be doubted that such a Breatholizer test constitutes a search of defendant's person and antecedently depends upon a valid seizure of his person. Whether in the instant case the challenged search and seizure was a lawful one depends primarily upon (1) when and (2) by whom the arrest of defendant took place. In determining those...