State v. Lund

• Decision Date: 23 May 1990
• Citation: 119 N.J. 35,573 A.2d 1376
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Thomas E. LUND, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Michael X. HARRISON, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 35

119 N.J. 35

573 A.2d 1376

STATE of New Jersey, Plaintiff-Respondent, v. Thomas E. LUND, Defendant-Appellant.

STATE of New Jersey, Plaintiff-Respondent, v. Michael X. HARRISON, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Jan. 2, 1990.

Decided May 23, 1990.

James Michael Merberg, a member of the Massachusetts bar, for defendant-appellant Thomas E. Lund (Robert S. Eisenberg, Jersey City, attorney).

Lois De Julio, First Asst. Deputy Public Defender, for defendant-appellant Michael X. Harrison (Alfred A. Slocum, Public Defender, attorney; Lois De Julio and James Mayer, Designated Counsel, Bloomfield, of counsel, and on the briefs).

Janet Flanagan, Deputy Atty. Gen., for plaintiff-respondent (Peter N. Perretti, Jr., Atty. Gen., attorney).

The opinion of the Court was delivered by

O'HERN, J.

The Attorney General informs us in his brief:

One study of State Police officers killed nationwide in the line of duty from September 1976 to September 1982, shows that 40 percent of the troopers killed by gunfire were fatally wounded while making traffic stops.

Of such reality, Chief Justice Hughes spoke some years back:

Such continuing trends would make even more relevant today the prophetic warning of the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] dealing with police exposure and apprehension of harm:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. * * *

* * * [W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. [State ex rel. H.B., 75 N.J. 243, 247, 381 A.2d 759 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 23-24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889, 907-08 (1968)).]

This case involves an application of the Terry principles in the context of a highway stop of a vehicle during which a police officer discovered drugs in the motorist's car.

I

The principles that guide us are settled:

Certain fundamental propositions bear restatement at the outset. The Fourth Amendment to the United States Constitution requires the approval of an impartial judicial officer based on probable cause before most searches may be undertaken. E.g., Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428, reh. den., 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970). The same holds true for Article 1, paragraph 7 of the New Jersey Constitution. State v. Ercolano, 79 N.J. 25, 41-42 (1979), and cases cited therein. The warrant requirement of these provisions may be dispensed with in only a few narrowly circumscribed exceptions. The prima facie invalidity of any warrantless search is overcome only if that search falls within one of the specific exceptions created by the United States Supreme Court. Ercolano, supra, 79 N.J. at 42 . Where, as here, the State seeks to validate a warrantless search, it bears the burden of bringing it within one of those exceptions. State v. Sims, 75 N.J. 337, 352 (1978). [State v. Patino, 83 N.J. 1, 7, 414 A.2d 1327 (1980).]

Because no warrant existed for the search, we must ask under which exception the search may be brought. The problem with this case, as with so many others, is that the search fits neatly into no category, although arguably fitting into several. It partakes of aspects of a "stop," an intrusion less than a search or seizure, as well as a search. Each of these strands of search and seizure law must be considered.

This was not a search incident to an arrest of the recent occupant of an automobile as defined in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (allowing a search of the car's interior as incident to the arrest). Nor was it an automobile exception case, because the officers did not have probable cause to believe the vehicle contained contraband. It has always been recognized that although expectations of privacy in the contents of an automobile are significant, they have never been granted the protection accorded the home. State v. Patino, supra, 83 N.J. at 8, 414 A.2d 1327. Thus, under the automobile exception, police may stop and search a moving vehicle, or one readily movable, when there is probable cause to believe that the vehicle contains criminally-related objects. "The rationale for this exception is grounded in the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectation of privacy in one's vehicle." Id. at 9, 414 A.2d 1327. As a result, an automobile search is justified not by the existence of a warrant but by the circumstances that furnish the officers with probable cause. In State v. Alston, 88 N.J. 211, 440 A.2d 1311 (1981), we stressed the significance of weapons when these are the object of the search because of concern for the safety of the police officers. There we upheld a search of a car that revealed two handguns and a sawed-off shotgun after the police had seen live shotgun shells when shining a flashlight into the open glove compartment.

Another recognized exception to the probable-cause requirement allows the police to "stop and frisk" when a police officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest * * *." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968). In that circumstance, the officer's conduct is judged by "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Ibid. 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. Chief Justice Warren emphasized that the new exception to probable cause was to be applied only in very limited circumstances. He stated that "[t]he sole justification [for the new standard was] the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Id. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 911.

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Court upheld, without finding of probable cause, the brief detention or stop of the driver of a car outside his vehicle while the police officer issued a traffic summons. The Court reasoned that the detention involved only an incremental intrusion beyond an initial justified stop. The Court balanced that intrusion suffered by the individual against the heightened danger to the police officer in both dealing with people and automobiles and standing exposed to traffic. Id. at 111, 98 S.Ct. at 333, 54 L.Ed.2d at 337.

In New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), the Court authorized a limited search for a vehicle identification number on the theory that because the number is generally visible from outside an automobile, a police officer may reach in and move papers obscuring it from view. The Court reasoned that the regulatory importance of the number resulted in a diminished expectation of privacy, and therefore police acted properly in moving the papers after they had stopped the car for a traffic violation and the driver had stepped out voluntarily. The plain view doctrine authorized the subsequent seizure of a gun.

Finally, in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Court upheld the right of police to conduct a weapons search of the interior of a car when they have a reasonable belief that the motorist is potentially dangerous. In upholding the search, Justice O'Connor's opinion for the Court explained that a search of the passenger compartment of an automobile is "permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Id. at 1049, 103 S.Ct. at 3480, 77 L.Ed.2d at 1220 (quoting Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1879, 20 L.Ed.2d at 906).

We may summarize the essence of these protective principles again in the words of Chief Justice Hughes:

"Our evaluation of the proper balance that has to be struck * * * leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." * * *

Accepting these rules as representing bedrock constitutional law, it remains to apply them to the factual base [of the case]. [State ex rel. H.B., supra, 75 N.J. at 248, 381 A.2d 759 (quoting Terry v. Ohio, supra, 392 U.S. at 27, 88...