State v. Hock

• Decision Date: 20 October 1969
• Citation: 54 N.J. 526,257 A.2d 699
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Richard HOCK, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 526

54 N.J. 526

257 A.2d 699

STATE of New Jersey, Plaintiff-Respondent, v. Richard HOCK, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Sept. 8, 1969.

Decided Oct. 20, 1969.

Thomas Menchin, Asst. Deputy Public Defender, argued the cause for appellant (Stanley C. Van Ness, Public Defender, attorney).

William J. Cunnane, Asst. Prosecutor, argued the cause for respondent (James A. Tumulty, Jr., Prosecutor of Hudson County, attorney).

The opinion of the court was delivered by

FRANCIS, J.

Defendants Bird and Hock were convicted on an indictment charging them with unlawfully carrying 'concealed in a vehicle, to wit, an automobile, a certain firearm, to wit, a revolver, without first having obtained the requisite permit to carry same, contrary to the provisions of N.J.S.A. 2A:151--41.' Hock alone appealed to the Appellate Division where in an unreported opinion the conviction was affirmed. Thereafter he appealed directly to this Court under R.R. 1:2--1(a), now R. 2:2--1(a)(1), alleging that constitutional and other trial errors require reversal.

The statute under which the charge was laid provides:

'Except as hereinafter provided, any person who carries, holds or possesses in any automobile * * *:

(a) A pistol or revolver without first having obtained a permit to carry the same in accordance with the provisions of this chapter;

is guilty of a high misdemeanor.'

N.J.S.A. 2A:151--41.

Section 7 thereof, 2A:151--7, says:

'The presence of a firearm * * * in a vehicle, is presumptive evidence of possession by all persons occupying the vehicle at the time.'

Prior to 1966 the form of the statute was somewhat different. It forbade any person to carry a revolver 'in an automobile * * * or concealed on or about his clothes or person, or otherwise concealed in his possession: (a) * * * without first having obtained a permit * * *.' The change in the act is called to the prosecutor's attention because the indictment used here follows an old form in that it asserts that Hock 'unlawfully carried concealed in a vehicle, to wit, an automobile, a certain firearm, etc.' There is no longer any need to allege concealment, if in fact there ever was any such need. ¹ Moreover in its charge the court read the old statute and advised the jury that the State had the burden of proving beyond a reasonable doubt that the gun was concealed in the automobile in which Hock was a passenger. The allegation of concealment in the indictment being unnecessary, it could have been treated as surplusage at the trial. Furthermore, the court by imposing in its charge the duty to prove concealment laid a greater burden of proof on the State than was necessary. But the defendant made no complaint about either the indictment or the charge, and we do not see that he was prejudiced in any way.

The testimony adduced at the trial showed that on January 8, 1967 at about 3 A.M. Officer Ferolie of the Jersey City Police Department while on motorcycle patrol, observed a 1956 Cadillac turning from one street into another street at about five miles an hour. Its trunk lid was loose and banging up and down and the exhaust or muffler noise was very loud. Two men were in the car, Bird was driving and Hock was in the right front passenger seat. At Officer Ferolie's direction, Bird pulled over to the side of the road where production of his driver's license and registration was requested. The driver's license was in order. However, the car registration certificate had expired. Moreover, although the number on the certificate was the same as that on the license plates, the registration was for a different automobile, a 1955 or 1956 Oldsmobile. In view of the motor vehicle act violations as well as the officer's suspicion that the Cadillac might be a stolen vehicle, he ordered Bird and Hock to drive to the precinct headquarters. Ferolie followed the car a short distance to the rear. On the way he saw Hock, who was in the right front seat, bend forward toward the floor for a period he estimated variously at from 3 to 7 seconds. (In cross-examining on the pretrial motion to suppress, counsel for Hock asked the officer if any thought crossed his mind when he saw Hock bend over. On receiving an affirmative answer counsel inquired as to what it was, and the officer replied that he thought something was being put under the front seat.)

On arrival at the police station with Bird and Hock, Ferolie explained the situation to the desk sergeant who told him to impound the Cadillac so that the matter of ownership could be explored. Ferolie then took Bird outside with him while he searched the car and inventoried its contends. Such inventory is routine procedure so that a record of the contents may be made in the presence of the alleged owner. On opening the right front door the officer saw a revolver on the floor a few inches from the door and partially protruding from under the right front seat. It turned out to be a loaded .38 caliber revolver. Bird testified he saw the gun about the same time as Ferolie did. But each defendant denied ownership of it, or that he put it in the car or knew it was there, or that he ever saw it before it was found in the car.

Both men were then charged with unlawfully carrying the revolver concealed in a vehicle in violation of N.J.S.A. 2A:151--41. In addition Bird was given summonses for driving an unregistered vehicle contrary to N.J.S.A. 39:3--4, misuse of license plates contrary to N.J.S.A. 39:3--35, driving with a muffler not in working order, violative of N.J.S.A. 39:3--70, and failing to report a change of address contrary to N.J.S.A. 39:3--36.

At trial, Hock (whose credibility was assailed because of previous criminal convictions in 1961 for breaking and entry, and in 1963 for robbery) continued his denial that he owned the revolver or carried it into the car, or knew it was under the right front seat he occupied, or that he put it under the seat. He testified, as did Bird, that they had given a lift to a stranger they met outside the Old Bay House Tavern, not far from the scene of their arrest, and that they had dropped him off just before they were stopped by Officer Ferolie. Hock's uncle, with whom Hock lived near the tavern, testified to his own presence in the tavern from about 7 P.M. until closing time. He offered some corroboratory statements, asserting that when he left the tavern at closing time other persons, one of them Bird, left also. Another such person was a stranger with whom he had played pool at the tavern on a few occasions. He did not know the person's name or where he lived, and he never saw him again after that night. While waiting on the sidewalk for the bartender to close up, the uncle saw Hock walking toward him. Hock's purpose in coming to the tavern was to obtain a key from his uncle to that he could get into the house. Hock and Bird, who were friends, after some conversation decided to go to a restaurant for coffee. At this time the stranger mentioned was across the street waiting for a bus. The uncle said he asked the man if he wanted a lift since Hock and Bird were going his way. Everyone being agreeable, the stranger got into the rear seat of the car. Neither Hock nor Bird asked for his name of where he lived; he simply said he would let them know where they 'could let him off.' They claimed they discharged him at Merritt Street at his request, and that he was about 30 feet away when Officer Ferolie drew up alongside them. According to Hock the officer asked who the person was who had just gotten out of the car. Ferolie denied seeing anyone alight or that he made any such inquiry. His testimony was that the car was moving when he ordered Bird to pull into the curb, and that the only occupants were Bird and Hock.

Hock denied he put the revolver under his seat after the arrest and during the trip to police headquarters. He remembered having bent forward at one time but said that was only to put some cigarette ashes in the dashboard tray.

The jury obviously disbelieved the defense. A unanimous verdict of guilty was returned after a short period of deliberation.

I.

Hock claims that the revolver received in evidence against him at the trial was obtained as the result of a search and seizure which violated the Fourth Amendment of the Federal Constitution. The argument was first presented at a pretrial motion under R. 3:5--7(a) to suppress on the ground that there was no probable cause for the search and, in any event, a warrant should have been obtained before making the search and seizing the revolver. The motion was denied after hearing the testimony of Officer Ferolie which was substantially the same as that presented at the trial. We agree, as did the Appellate Division, that the contention has no merit.

Evidence obtained by means of searches and seizures made without a search warrant is not suppressible in all cases. The Fourth Amendment condemns only such warrantless searches as are unreasonable. State v. Campbell, 53 N.J. 230, 250 A.2d 1 (1969); State v. Kasabucki, 52 N.J. 110, 244 A.2d 101 (1968); State v. Boykins, 50 N.J. 73, 232 A.2d 141 (1967).

On the basis of the police officer's reasonable belief that the noisy muffler on the car violated the Motor Vehicle Act, he was legally justified in ordering Bird to pull into the curb and then requesting production of his driver's license and vehicle registration certificate. State v. Campbell, Supra; N.J.S.A. 39:3--29. When no registration certificate for the Cadillac was produced, and it appeared that the license plates on the car related to a different vehicle, a well-grounded suspicion that the car was stolen warranted arrest of its occupants. See N.J.S.A. 39:5--25. Search of the vehicle for evidence of ownership could have been made immediately at the scene. State v. Boykins, Supra; United States v. Washington, 249 F.Supp. 40 (D.D.C.1965), aff'd Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915 (1968); People...