State v. Scanlon

• Citation: 84 N.J.Super. 427,202 A.2d 448
• Decision Date: 06 July 1964
• Docket Number: No. A--162,A--162
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. John Joseph SCANLON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 427

84 N.J.Super. 427

202 A.2d 448

The STATE of New Jersey, Plaintiff-Respondent, v. John Joseph SCANLON, Defendant-Appellant.

No. A--162.

Superior Court of New Jersey Appellate Division.

Argued June 15, 1964.

Decided July 6, 1964.

Richard J. Murray, Somerville, assigned counsel, for appellant.

Raymond R. Trombadore, Asst. County Pros., for the State (Arthur S. Meredith, County Pros., attorney).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

COLLESTER, J.A.D.

Defendant John Joseph Scanlon was indicted along with James Francis Hampson for the crimes of breaking and entering the premises of Tellepsen Construction Company, in the township of Branchburg, on December 28, 1962, and for larceny of a steel safe therefrom containing money and postage stamps, with a total value of $1,487.75, contrary to N.J.S. 2A:94--1, N.J.S.A., and N.J.S. 2A:119--2, N.J.S.A. Scanlon and Hampson were tried together and found guilty by a jury in the Somerset County Court. Defendant Scanlon appeals, urging as grounds for reversal: (1) the evidence used to obtain his conviction was the result of an illegal arrest and/or search; (2) he was denied due process of law, and (3) the trial court erred in its charge to the jury.

At about 6:30 A.M. on December 28, 1962, and while it was still dark, gerald Reynolds, an officer of the Delaware State Police, while patrolling northerly on U.S. Route 113 just south of Ellendale, Delaware, observed a 1958 Chevrolet station wagon proceeding southerly on the highway. He noted that the right taillight lens on the vehicle was broken. He turned his patrol car around, caught up with the vehicle and signaled it to a stop on the side of the road. The police officer then halted his patrol car about ten feet to the rear of the station wagon.

The station wagon was operated by James Hampson. It was owned by defendant Scanlon, who was riding as a passenger in the Front seat. After the station wagon stopped, both occupants left the vehicle and conferred with the state trooper on the shoulder of the highway. Hampson was unable to produce his driver's license when the officer requested it, stating that he did not have it with him. Defendant produced the automobile registration and his driver's license, which the officer examined. The trooper then informed Hampson he was under arrest for driving without a license. He also informed Scanlon and Hampson that the right rear taillight was defective.

Officer Reynolds then walked to the left side of the station wagon, the door of which was open, and glanced inside. He observed clothing and blankets in the rear thereof and noticed that a blanket was covering a square object. He asked both men what it was, and defendant Scanlon stated it was a tool box and that they were going to his brother's cottage in Berlin, Maryland. Reynolds alleges that he then said, 'It wouldn't be a safe would it?' to which Scanlon replied, 'Well, what would I be doing with a safe?' The officer reached inside the car and tapped the blanket covering the object. The testified that there was a hard object underneath and there was no hollow sound--it 'didn't sound like a tool box.'

The state trooper directed Hampson to ride with him to the magistrate's office and told Scanlon to follow with the station wagon. This was done. At the magistrate's office in Ellendale Reynolds told Hampson to stay in the patrol car and he then walked back to the station wagon, which was parked immediately behind the patrol car and alongside the curb outside the office. He told Scanlon he 'would like to search his vehicle.' Defendant got out of the station wagon and 'never said anything.' The officer reached inside and lifted the blanket from the object it covered. He found that it was a safe with a rifle underneath it. The state trooper said to defendant, 'I thought you told me this was a tool box.' Scanlon allegedly replied, 'I knew you wouldn't believe me if I told you it was a safe.' Reynolds asked defendant to open it. Defendant said he did not know the combination.

Both defendant and Hampson were taken into the magistrate's office where the officer signed a complaint charging Hampson with driving without a driver's license in his possession in violation of the Delaware motor vehicle laws, and also issued to Hampson a written 'warning slip' for operating the motor vehicle with a defective taillight. Reynolds questioned defendant further about the safe and Scanlon said it was his brother's. He was told to telephone his brother to ascertain the combination. He replied that he didn't know how to contact him. Thereafter defendant changed his story and informed the officer that he and Hampson had found the safe in the woods near a restaurant in the vicinity of Aberdeen, Maryland.

Trooper Reynolds notified his station of the incident and Lieutenant Ralph Richardson, Jr. was sent to the magistrate's office to investigate. While Richardson was En route, Hampson entered a plea of guilty to the motor vehicle charge lodged against him and the magistrate imposed a fine of $10. Upon Richardson's arrival, the rifle was removed from the station wagon. A charge of carrying a concealed weapon was made against defendants Scanlon and Hampson. The safe was taken to police headquarters where later it was learned that it had been stolen from the Tellepsen Construction Company in Branchburg, New Jersey.

The charge against defendant of carrying a concealed weapon in Delaware was subsequently dropped. Scanlon and Hampson were indicted and convicted of the offenses in this State, from which convictions defendant Scanlon now appeals.

I.

The main thrust of Scanlon's appeal is directed to the contention that there was an unlawful arrest, search and seizure, and that the evidence seized was used at his trial to bring about his conviction. Motions to suppress such evidence were made by both defendant Scanlon and codefendant Hampson prior to and during the course of the trial. In each instance the trial court denied the motions on the ground that the search of the motor vehicle and seizure of the safe were lawful because they were incidental to a lawful arrest.

Defendant Scanlon contends the search and seizure were unreasonable and contrary to the provisions of the Fourth Amendment. He alleges that no valid arrest occurred and hence the search of his motor vehicle was unlawful. He further argues that the search and seizure were not supported by probable cause for the officer to believe that a crime had been committed and therefore it was unreasonable and in violation of his constitutional rights. The position of the State is to the contrary.

We digress for the moment to state that our review of the record of the trial below compels but one conclusion--defendant Scanlon and codefendant Hampson were guilty of the crimes charged. They were literally 'caught with the goods'--the safe which earlier had been stolen from Tellepsen Construction Company was in their possession when by sheer accident they fell into the hands of the law. Defendant Scanlon admitted his participation in the crime to police officers and did not testify in his own defense at the trial. However, following the landmark decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), holding that all evidence obtained by searches and seizures in violation of the Fourth Amendment is inadmissible in state courts, it has become our responsibility to enforce this exclusionary rule. It is in this light that we approach and must deal with the issues raised by defendant Scanlon on this appeal.

Since the search of defendant's station wagon was made without a search warrant's having been obtained, the first issue for determination is whether it was a lawful search made incidental to a lawful arrest. It is well settled that when a person is lawfully arrested, the police have a right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Such right to search and seize without a search warrant extends to things under the accused's immediate control and, to an extent, depending on the circumstances of the case, to the place where he is arrested. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed. 777, 780 (1964). See also Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950).

In the instant case it is conceded that officer Reynolds stopped defendant's station wagon on the highway because it had a broken taillight and arrested the codefendant Hampson only because of his failure to have a driver's license in his possession. An arrest for such a violation of the motor vehicle laws, without more, is not sufficient cause for a search of the motor vehicle. United States v. Tate, 209 F.Supp. 762 (D.C.Del.1962); People v. Mayo, 19 Ill.2d 136, 166 N.E.2d 440 (Sup.Ct.1960); People v. Zeigler, 358 Mich. 355, 100 N.W.2d 456 (Sup.Ct.1960); People v. Roache, 237 Mich. 215, 211 N.W. 742 (Sup.Ct.1927); cf. People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433 (Sup.Ct.1960); People v. Sanson, 156 Cal.App.2d 250, 319 P.2d 422 (D.Ct.App.1957) . A search incident to an arrest is authorized when it is reasonably necessary to protect the arresting officer from an assault, to prevent the prisoner from escaping, or to prevent the destruction of evidence of the crime--things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. Preston v. United States, supra.

However, the motor vehicle violations on the part of Hampson in...