State v. Pierce
| Decision Date | 19 June 1992 |
| Citation | 257 N.J.Super. 483,608 A.2d 952 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Eileen PIERCE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Wilfredo Caraballo, Public Defender, for defendant-appellant (M. Virginia Barta, Asst. Deputy Public Defender, of counsel and on the letter-brief).
Robert J. Del Tufo, Atty. Gen., for plaintiff-respondent (Linda A. Rinaldi, Deputy Atty. Gen., of counsel and on the letter brief).
Before Judges PRESSLER, SKILLMAN and D'ANNUNZIO.
The opinion of the court was delivered by
D'ANNUNZIO, J.A.D.
Pursuant to a plea agreement entered into after the denial of her motion to suppress evidence, defendant pleaded guilty to count three of Monmouth County Indictment 89-11-2062, charging possession of cocaine. The court sentenced her to three years probation.
The facts are not in dispute. Officer Rette stopped a vehicle owned and operated by codefendant Nicholas Grass because Rette had clocked the vehicle's speed at 51 miles per hour in a 40-mile-per-hour zone. Defendant Pierce and codefendant Bernardo were passengers in the Grass vehicle. Grass presented a Pennsylvania driver's license, which Rette determined through communication with his headquarters to have been suspended. Rette arrested Grass for operating a vehicle while his license was suspended, N.J.S.A. 39:3-40, handcuffed him and placed him in the police vehicle.
Pierce and Bernardo were ordered to exit the Grass vehicle. Rette searched the vehicle and found a loaded handgun in a metal container. He also found three jackets in the vehicle. One of the jackets belonged to defendant Pierce and in it officer Rette found a trace amount of cocaine in cellophane packaging. Defendant now appeals from the denial of her suppression motion and makes the following contentions:
POINT I
THE SEARCH OF THE VAN INCIDENT TO THE DRIVER'S ARREST FOR A MOTOR VEHICLE VIOLATION VIOLATED DEFENDANT PASSENGER'S RIGHTS UNDER ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION WHERE THE OFFICER HAD NO REASONABLE BELIEF THAT THE SEARCH WOULD PRODUCE WEAPONS OR EVIDENCE OF CRIME
THE ARREST OF THE DRIVER FOR DRIVING WHILE SUSPENDED WAS IMPROPER WHERE ANOTHER LICENSED DRIVER WAS PRESENT AND ABLE TO DRIVE THE VAN; THEREFORE, THE EVIDENCE SEIZED IN A SEARCH INCIDENT THERETO SHOULD NOT BE SUPPRESSED (Not Raised Below)
We rejected similar contentions in the companion case of State v. Grass, 250 N.J.Super. 74, 593 A.2d 379 (App.Div.1991). In Grass we applied New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981), which held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" including any containers found within the passenger compartment. We perceive no basis in this record for not applying the bright line rule announced in New York v. Belton and, therefore, we affirm substantially for the reasons expressed in State v. Grass, supra.
We deem it necessary, however, to make some observations regarding our holding in this case and in Grass.
N.J.S.A. 39:5-25 (hereafter § 25), authorizes any law enforcement officer to arrest without a warrant any person violating "in his presence" any provision of Chapter 3 or Chapter 4 of Title 39. The grant of authority in § 25 coupled with the principle announced in New York v. Belton, supra, create a potential for abuse. Unrestricted application of § 25 and Belton would permit a law enforcement officer to convert any prosaic motor vehicle violation into an occasion for the full search of the automobile merely by exercising the § 25 authority to arrest rather than issuing a summons.
This case, however, does not involve the abuse of § 25 authority. Operation of a motor vehicle by a person whose license is suspended is one of the more serious Title 39 offenses. A first offender must be fined $500. A second offender must be fined $750 and be imprisoned in the county jail for a period not to exceed five days. A third offender must be fined $1,000 and be imprisoned in the county jail for a period not to exceed ten days. N.J.S.A. 39:3-40a, b and c. See State v. Pavao, 239 N.J.Super. 206, 210-213, 570 A.2d 1285 (App.Div.1990); State v. Duva, 192 N.J.Super. 418, 421-422, 470 A.2d 53 (Law Div.1983). In addition, violators shall suffer additional license suspension, not to exceed six months. N.J.S.A. 39:3-40d. A person who operates a vehicle while suspended and is involved in an accident resulting in injury to someone other than the violator, must serve 45 days in the county jail. N.J.S.A. 39:3-40e. Moreover, violation of N.J.S.A. 39:3-40 almost always involves purposeful, premeditated disregard of the statute, unlike many other motor vehicle violations which usually involve impulsive or careless behavior. Based on the seriousness of the offense and Grass' purposeful disregard of his legal incapacity to operate his vehicle, we are satisfied that Grass' arrest was a reasonable exercise by Officer Rette of § 25 authority. However, whether Belton should be applied in the context of an irregular exercise of § 25 authority is an open question.
Affirmed.
PRESSLER, P.J.A.D., dissenting.
I am constrained to dissent because I believe the majority's holding, notwithstanding its expressed reservations, constitutes a serious compromise of the Fourth Amendment.
The majority reads New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), as standing for the proposition that a police officer is at liberty to arrest a motorist stopped for a traffic violation and then, without running afoul of the Fourth Amendment, the officer may search both him and his vehicle as incident to the arrest. I think this reading is overbroad. In Belton itself, the police had probable cause prior to their arrest of the motorist to believe that a crime, namely use and possession of marijuana, had been or was being committed. It is true that in holding that a lawful arrest of a motorist permits the ensuing search, the United States Supreme Court relied on United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), both of which involved a search following an arrest, as here, for driving without a valid license. But in Gustafson, the defendant had not challenged the lawfulness of his arrest, and the Court expressly declined to address that issue. And in Robinson, the arrest of the motorist was in accord with specific police regulations prescribing the circumstances pursuant to which the officer was required to take a traffic violator into custody. I am, therefore, not at all convinced that Belton does establish the bright-line rule enunciated by the majority.
The majority also relies on N.J.S.A. 39:5-25, which authorizes a police officer to arrest a person committing a traffic violation in the officer's presence. But this broad statutory authorization obviously does not compel such an arrest. Nor does it relieve the officer from exercising the authority so conferred upon him consistently with the reasonableness keystone of the Fourth Amendment. And I think it clear, as the majority itself recognizes, that the arrest of a motorist for a routine traffic violation with the attendant loss of liberty and the intrusiveness and humiliation implicit in arrest procedures is not ordinarily reasonable in Fourth Amendment terms.
I am also satisfied that even if Belton could be read as enunciating a rule that permits an arrest for a routine traffic violation, that rule has not, as this court pointed out in State v. Grass, 250 N.J.Super. 74, 78, 593 A.2d 379 (App.Div.1991), been expressly accepted by the New Jersey Supreme Court. I also note that the New Jersey Supreme Court vigorously embraces the proposition that
... American federalism confers upon this Court the power to afford the citizens of this State greater protection against unreasonable searches and seizures than may be required by the Supreme Court's interpretation. [State v. Alston, 88 N.J. 211, 225, 440 A.2d 1311 (1981) ].
I start, therefore, from the perception that we are not bound by the Belton rule even if it is as broad as the majority asserts.
I am convinced, moreover, that an unqualified application of such a rule would contravene the Fourth Amendment. I am not alone. Justice Stewart opened his concurring opinion in Gustafson with the observation that since the defendant had not raised the issue of the legality of his arrest for driving without a valid driver's license, the Court would not deal with it. He nevertheless opined that "a persuasive claim might have been made in this case that the custodial arrest of the petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments." 414 U.S. at 275, 94 S.Ct. at 492, 38 L.Ed.2d at 462. The leading scholar on the Fourth Amendment, Wayne R. LaFave, has also condemned a blanket authority of the police to arrest for traffic violations, viewing such an authority as leading to pretextual arrests and permitting arbitrary inequality of enforcement. See 2 LaFave, Search and Seizure § 5.2(g) at 465 (2d ed. 1987). See also LaFave, "Case-By-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 158. A number of states have enacted legislation qualifying the right of police to arrest for minor traffic violations, 1 and a number of others have done so by way of developing Fourth Amendment jurisprudence. 2 And the majority of this court has itself recognized that "[u]nrestricted application of ... [ N.J.S.A. 39:5-25] would permit a law enforcement officer to convert any prosaic motor vehicle violation into an occasion for the full search of the automobile...." (Opinion at 485, 608 A.2d at 953).
My...
To continue reading
Request your trial
-
State v. Pierce
...her to three years probation. A divided panel of the Appellate Division affirmed the judgment of conviction. State v. Pierce, 257 N.J.Super. 483, 608 A.2d 952 (1992). Defendant appeals to this Court as of right. R. The facts are essentially undisputed. On August 19, 1989, Officer Rette of t......