State v. Hurtado

• Decision Date: 09 July 1987
• Citation: 219 N.J.Super. 12,529 A.2d 1000
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Jorge HURTADO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 12

219 N.J.Super. 12

529 A.2d 1000

STATE of New Jersey, Plaintiff-Respondent, v. Jorge HURTADO, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued May 19, 1987.

Decided July 9, 1987.

Peter M. Jacques, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; Peter M. Jacques, of counsel and on brief)

Leslie F. Schwartz, Deputy Atty. Gen., for plaintiff-respondent (W. Cary Edwards, Atty. Gen., attorney; Leslie F. Schwartz, of counsel and on letter brief).

Before Judges MICHELS, SKILLMAN and LANDAU.

The opinion of the court was delivered by

LANDAU, J.S.C. (temporarily assigned).

Jorge Hurtado appeals from the denial of his motion to suppress evidence. After his motion was denied, Hurtado pled guilty to unlawful possession of cocaine, and was sentenced thereunder.

On appeal, Hurtado urges:

POINT I

THE DETENTION OF THE DEFENDANT FOR FAILURE TO CARRY IDENTIFICATION AND FOR VIOLATION OF A MUNICIPAL LITTERING ORDINANCE CONSTITUTED AN UNREASONABLE SEIZURE IN VIOLATION OF THE FOURTH AMENDMENT AND ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION, REQUIRING SUPPRESSION OF THE FRUITS OF THE INVENTORY SEARCH CONDUCTED INCIDENT TO THAT DETENTION.

A. The Detention At The Scene And Conveyance To Police Headquarters Where The Defendant Was Placed In A Cell For Inability To Post Bail Constituted A Seizure Triggering Constitutional Protection.

B. The Seizure Of The Defendant Was Overly Intrusive And Thereby Unreasonable In Violation Of The Fourth Amendment And Article 1, Paragraph 7 Of The New Jersey Constitution.

POINT II

THE POLICE HAD NO AUTHORITY TO ARREST THE DEFENDANT, WITHOUT A WARRANT, FOR VIOLATION OF A MUNICIPAL ORDINANCE; THE SUBSEQUENT SEARCH CONDUCTED PRIOR TO PLACING THE DEFENDANT IN A CELL FOR INABILITY TO POST BAIL THEREFORE VIOLATED THE FOURTH AMENDMENT AND ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION, REQUIRING SUPPRESSION OF THE FRUITS OF THE INVENTORY SEARCH.

POINT III

THE VIOLATION OF A MUNICIPAL LITTERING ORDINANCE DOES NOT CONSTITUTE A "BAILABLE OFFENSE" FOR PURPOSES OF N.J.S.A. 2A:8-27; THEREFORE, THE INVENTORY SEARCH CONDUCTED PRIOR TO PLACING THE DEFENDANT IN A CELL FOR HIS INABILITY TO POST BAIL ON A LITTERING VIOLATION TRANSGRESSED THE FOURTH AMENDING VIOLATION TRANSGRESSED THE FOURTH AMENDMENT AND ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION REQUIRING SUPPRESSION OF THE TAINTED FRUITS OF THAT SEARCH.

FACTS

Hurtado and another male were observed by a Plainfield police officer walking back and forth on a block in Plainfield in a neighborhood known for muggings. Officer Paige of the Plainfield Police Force approached the pair, and inquired of the reasons for their presence in the area. Their response was that they were "taking a walk." During the discussion Hurtado dropped "a couple pieces of napkin." Paige cautioned him about the city ordinance against littering and Hurtado picked up the paper. Again, while Paige was still close to him, Hurtado threw down the napkin paper. At this point, Paige inquired as to his name and address and requested identification inasmuch as he was about to issue a summons for violation of the anti-littering ordinance.

Hurtado was unable to produce identification. The second male produced identification and was not detained, but Hurtado was taken to the police station. At the station, identification procedures were set in motion and it was discovered that Hurtado had a record, including, according to Officer Paige, incidents of failure to answer other municipal summonses. At that time, Hurtado was out on bail awaiting imminent sentence on prior C.D.S. convictions.

According to Paige, upon learning of the "numerous of [sic ] contempt of courts pending in his file," the Lieutenant in charge of the station house set $100 bail to secure his attendance for the summons under the municipal littering ordinance. Paige testified that initially Hurtado was "just detained, he wasn't arrested" for further identification, and that ordinarily he would give a city ordinance summons without taking someone to headquarters if they had an ID., such as a driver's license. For persons who had no ID, they were taken to headquarters, for identification purposes, before issuing the summons. When Hurtado was taken to the station house, his prior arrest cards, file and picture were located and his identification verified. Paige confirmed on cross-examination that he did not think there were any outstanding warrants at the time bail was set. Because Hurtado did not have the bail, he was placed in a holding cell, and an inventory search was conducted incident thereto. During the inventory a packet of cocaine was uncovered, which was the subject of the suppress motion.

When Hurtado was taken to the station, it developed that the name and address which he gave to the police officer on the street was accurate.

The history of Hurtado's prior failure to comply with summonses, as recounted by Officer Paige, was not disputed at the suppress hearing. His substantial adult record, dating to 1978 appears in the presentence report, now part of the record. That report discloses only one formal contempt of court charge, which had been dismissed. The transcript shows that the trial judge relied on the unrebutted testimony of Officer Paige as to Hurtado's prior failures to respond to summons.

The trial judge rejected defense counsel's argument that Officer Paige had no authority to arrest the defendant for violation of a municipal ordinance without first obtaining a warrant, and dismissed his contention that less intrusive means should have been employed to corroborate the defendant's identity, such as taking him to his alleged residence. Having determined that it was proper to take Hurtado to the police station, the trial judge determined that setting bail was also proper. In consequence, the inventory search conducted prior to placing the defendant in a cell was approved, and the suppress motion denied.

Hurtado contends that his detention at the scene and subsequent conveyance and detention at police headquarters constituted an unreasonable seizure under U.S. Const., Amend. IV and N.J. Const., (1947), Art. I, p VII. He argues therefore that the "fruit" uncovered by the subsequent inventory search should have been suppressed.

There is no dispute that Hurtado was involuntarily transported to police headquarters, although the State disputes that he was initially arrested, rather than detained.

Hurtado contends that even when an offense is committed in the presence of a police officer, the officer does not have power to arrest for violation of any municipal ordinance without first obtaining a warrant. In support, Hurtado cites State v. Scharfstein, 73 N.J.Super. 486, 489, 180 A.2d 210 (Cty.Ct.1962), rev'd on other grounds, 79 N.J.Super. 236, 191 A.2d 205 (App.Div.1963), aff'd, 42 N.J. 354, 200 A.2d 777 (1964). He says that "one is hard pressed to find an offense less innocuous or trivial" than discarding napkins on the street, a transgression for which the only sanction under Sec. 10:5-9 of the Plainfield Municipal Code is a fine not to exceed $250. Thus, he argues, even if temporary detention was appropriate, preliminary to issuing a summons, defendant's seizure was unreasonable after balancing the degree of intrusion and invasion of personal rights against the justification for initiating the intrusion. See United States v. Hensley, 469 U.S 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In the same vein, Hurtado also contends that the police had no authority to arrest him without a warrant merely for violation of a municipal ordinance. We disagree.

Inexplicably, Hurtado has failed to cite to this court N.J.S.A. 40A:14-152, the starting place for the determination of the authority of the arresting officer. That section provides that "the members and officers of a police department and force, within the territorial limits of the municipality, shall have all the powers of peace officers and upon view may apprehend and arrest any disorderly person or any person committing a breach of the peace." See also, N.J.S.A. 40:149-1 (Township Police). While the dictum in Scharfstein appears to have addressed the necessity for a warrant in connection with violations of municipal ordinances, its authority is dubious at best. Scharfstein was reversed for other reasons which made it unnecessary to consider the correctness of this dictum. Moreover, the cited dictum relies upon Mayor of Newark v. Murphy, 40 N.J.L. 145 (Sup.Ct.1878), a case which discussed common law powers of arrest in England but which is not authority to preclude the arrest by a police officer of a person seen by that officer to commit any ordinance violation. The Murphy court construed a specific charter, prior to the express grant of arrest powers to police officers in statutes such as N.J.S.A. 40A:14-152. Indeed, as observed in State v. Smith, 37 N.J. 481, 181 A.2d 761 (1962), under the common law of arrest, a peace officer could arrest without a warrant, if the offense was committed in his presence, for misdemeanors involving or likely to involve breach of the peace. Misdemeanors, in context, were meant to be petty offenses, not tied to the source of the legislation, but which entailed "breaches of the peace." Although the Smith court rejected the words "breach of the peace" in relation to arrest as "vague and of doubtful utility," id. at 494, 181 A.2d 761, legislative enactment of L.1971, c. 197 ( N.J.S.A. 40A:14-152) statutorily revived the "breach of the peace" verbiage. See also N.J.S.A. 40:149-1. Under these statutes, police power to arrest has been confirmed as to "any disorderly person" or "any person committing a breach of the peace." (Emphasis supplied) Thus, there is no...