State v. McCarthy

• Decision Date: 06 April 1973
• Citation: 303 A.2d 626,123 N.J.Super. 513
• Parties: STATE of New Jersey, Plaintiff, v. James J. McCARTHY, Jr., Defendant. -Criminal, New Jersey
• Court: New Jersey County Court

Page 513

123 N.J.Super. 513

303 A.2d 626

STATE of New Jersey, Plaintiff, v. James J. McCARTHY, Jr., Defendant.

Essex County Court,

Law Division-Criminal,

New Jersey.

April 6, 1973.

James Fagen, Asst. Prosecutor of Essex County, for plaintiff (Joseph P. Lordi, Essex County Prosecutor, atty.).

Joseph E. Fund, Livingston, for defendant.

David S. Baime, Deputy Atty. Gen., for George F. Kugler, Jr., Atty. Gen., amicus curiae (Alfred J. Luciani, East Orange, on the brief).

ANTELL, J.C.C.

On this motion to suppress the results of a Breathalyzer test in a drunken driving prosecution, N.J.S.A. 39:4--50, the defendant's claim of invalidity rests upon the assertion that his prior arrest without a warrant was illegal because performed by a police officer who was then acting outside the territorial limits of the municipality where he held his appointment and where the offense occurred.

Because of the state-wide significance of the question presented--which has not been previously decided by a New Jersey court--and in the interest of achieving uniformity in the administration of pertinent legal principles, the Attorney General of New Jersey has filed a brief Amicus curiae.

Officer Fichter, of the Cedar Grove Police Department, saw defendant pass a red light on Bradford Avenue at its intersection with Ridge Road. The officer followed him west on Bradford Avenue to a red light on Pompton Avenue, where they stopped. Along the way he observed the defendant cross back and forth for no apparent reason over the double yellow lines on the surface of the roadway. The car continued to Grove Avenue where it turned left toward Verona and again crossed the double yellow lines on the surface of that highway. The events so far recounted occurred within the limits of Cedar Grove. Near the Verona-Cedar Grove line the officer turned on his dome light and siren and pursued defendant for about a mile to Ann Street in Verona. There defendant stopped and was interrogated. His appearance, breath odor, conduct and manner of performing coordination tests led the officer to suspect alcoholic intoxication, and defendant was thereupon arrested and returned to Cedar Grove where the Breathalyzer test was taken.

The reason given by the officer for not acting sooner was that he elected to observe further the manner in which defendant was driving.

In State v. Harbatuk, 95 N.J.Super. 54, 229 A.2d 820 (App.Div.1967), the precise question was raised in an identical context, but the appeal was decided on other grounds. The opinion leaves no doubt, however, that the breath test taken pursuant to N.J.S.A. 39:4--50.2 and 50.3 constitutes a search of the person, and its validity depends upon the lawfulness of the preceding arrest. (At 59, 229 A.2d 820). See also, State v. Swiderski, 94 N.J.Super. 14, 24, 226 A.2d 728 (App.Div.1967).

That the official powers of a municipal police officer are ordinarily viable only within the territorial limits of the municipality which he serves is made plain by N.J.S.A. 40A:14--152, which creates these powers in the following language:

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. Said members and officers shall have the power to serve and execute process issuing out of the courts having local criminal jurisdiction in the municipality and shall have the powers of a constable in all matters other than in civil causes arising in such courts.

Also see, 5 Am.Jur.2d, Arrest, § 50 at 742; 62 C.J.S. Municipal Corporations § 574 at 1108; 6 C.J.S. Arrest § 12 at 610.

But the policeman's power to arrest without a warrant is by no means invariably confined by the 'territorial limits' condition. In addition to his official powers, he may also exercise those which he enjoys in common with any private citizen. 5 Am.Jur.2d, Arrest, § 50 at 742. At common law a citizen could arrest without a warrant only where a felony was provable. Brown v. State, 62 N.J.L. 666, 695, 42 A. 811 (E. & A.1898), aff'd 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119 (1899). N.J.S.A. 2A:169--3 has broadened this. This statute, extant since 1898 (L.1898, c. 239, § 36, p. 953), allows any person to

* * * apprehend without warrant or process any disorderly person, and take him before any magistrate of the county where apprehended.

The only limitation of this provision is that the arrestee be taken before 'any magistrate of the county where apprehended' (emphasis added), obviously contemplating that arrests would be made in counties and in municipalities other than where the offense occurred. Since the arrest powers of a policeman are coextensive with those of a private citizen, and since this statute vests in the latter a right of warrantless arrest for disorderly conduct without limitation by territorial considerations, it follows that at least to this extent the policeman's powers are broadened beyond those fixed by N.J.S.A. 40A:14--152. Although drunken driving violations do not now occupy the status of disorderly conduct, such was their original classification. L.1913, c. 67. In 1921 what we now know as the Motor Vehicle Act was adopted, and drunken driving was transferred into its provisions from those of the Disorderly Persons Act. L.1921, c. 208. Contained in § 31 thereof was the forerunner of N.J.S.A. 39:5--25, which now provides, as it has in substance over the years:

Any constable, Police officer, peace officer, motor vehicle inspector or the director May, without a warrant, arrest any person violating in his presence any provision of chapter three of this Title (39:3--1 et seq.), or any person, other than a motorman or person having control of a street car or auto bus, running upon a route approved by the Board of Public Utility Commissioners, Violating in his presence any provision of chapter four of this Title (39:4--1 et seq.). The exemption from arrest of a motorman or person having control of a street car or auto bus, as conferred herein, shall not operate to prevent his arrest, however, for a violation of section 39:4--50 of this Title. The arresting officer shall bring any person so arrested before any magistrate of the county wherein the offense is committed, or before the director at any place designated as his office. (Emphasis added)

That this statute contemplates arrests without warrant outside the municipal and county limits where the offense occurred appears from the fact that the only duty imposed upon the arresting official is that he bring the offender before 'any magistrate of the county wherein the offense is committed, or before the director at any place designated as his office.' (Emphasis added). Yet, like N.J.S.A. 2A:169--3, it avoids any territorial constriction upon the authority to arrest.

Having disregarded entirely the role of local boundaries in defining the jurisdictional basis of the arrest, what reason is there to believe that the framers, merely by transferring the drunken driving proscription from the Disorderly Persons Act to the then newly enacted Motor Vehicle Act, intended to cramp its enforcement by anchoring a policeman's power of immediate arrest to the capricious circumstance of whether he is in the employ of one or another political subdivision of the State? The law is one which involves moving vehicles and rapid shifts of situs from one locality to another, with undiminished risks of harm to the public. Although time lost to secure a warrant in most motor vehicle cases is no detriment to the prosecution, it is otherwise in drunken driving cases where the law enforcement agent is in a race against the vanishing alcoholic content of the driver's blood. The enactment of N.J.S.A. 39:5--25, authorizing arrests without reference to local jurisdictional limits, was a suitable legislative response to the mobile character of this threat to the public safety, its clear lack of relationship to any intrastate governmental geography, and the necessity for prompt police action.

Every community shares a unitary interest in the prompt apprehension of offenders so that the highly perishable evidence of their misconduct be reliably secured. Extra-territorial arrests of this nature involve neither offense to the sovereignty of any municipality nor the constitutional liberties of the individual. These considerations militate strongly against the conclusion that the policeman's power of arrest for this offense as disorderly conduct was not intended to survive the statutory reorganization of 1921.

Although one departure from existing law, which was evidently intended by declassifying the offense as disorderly conduct and the enactment of N.J.S.A. 39:5--25, was to withdraw from private citizens the power of arrest without warrant in drunken driving cases, I do not conclude from this that it was also intended to discontinue the long standing correlation between the right to arrest anywhere without a warrant for disorderly conduct committed in one's presence and enforcement of the prohibition against drunken driving. However, at least one other court has taken a contrary view in a closely comparable setting. See State v. Hodgson, 200 A.2d 567 (Del.Super.Ct.1964).

Relevant also is the following provision of the Uniform Act on Intrastate Fresh...