State v. Slockbower

• Citation: 368 A.2d 388,145 N.J.Super. 480
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Joseph Vincent SLOCKBOWER, Defendant-Respondent.
• Decision Date: 13 December 1976
• Court: New Jersey Superior Court – Appellate Division

Page 480

145 N.J.Super. 480

368 A.2d 388

STATE of New Jersey, Plaintiff-Appellant, v. Joseph Vincent SLOCKBOWER, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Oct. 26, 1976.

Decided Dec. 13, 1976.

Lawrence H. Posner, Asst. Prosecutor, for plaintiff-appellant (James T. O'Halloran, Hudson County Prosecutor, attorney).

Jon P. Campbell, Newark, for defendant-respondent (Eric A. Summerville, Director, Patrick House Legal Clinic, Newark, attorney).

Before Judges HALPERN, ALLCORN and BOTTER.

PER CURIAM.

By our leave granted, the State appeals from an interlocutory order suppressing evidence seized by the police without a warrant from an automobile driven by defendant. The uncontroverted proofs offered by the State at the suppression motion--defendant did not justify--revealed the following facts:

On March 13, 1975, at about 12:30 p.m., Detectives Frank Roth and Phillip Koscielecki, of the Jersey City Police Department, stopped and arrested defendant while he was driving on a street in Jersey City. Admittedly, there was an outstanding arrest warrant against defendant, issued January 9, 1975, for driving while on the revoked list. After arresting defendant had removing him from the car he was driving and which was owned by his wife, the detectives, in accordance with their established standard police procedure, impounded the car, intending to drive it to police headquarters. While inventorying the car's contents at the scene of arrest in his presence, the police found a loaded .22-calibre pen gun in the unlocked glove compartment. After a more complete inventory was made at police headquarters, and after a standard impounding sheet was completed and signed by the officers, the car was removed to a pound. We pause here to say that the validity of the inventory or search did not depend on whether it was made at the scene or at police headquarters. See Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).

Based upon the above undisputed facts, the trial judge suppressed the seizure of the gun because he found, among other things, the impoundment not to be normal police procedure and, in any event, it did not occur prior to the search of the glove compartment. ¹ In addition, he found the police had no valid reason to impound the car because they could have locked it and safely left it in the street or make inquiry of the owner to remove it. We disagree with the result reached and reverse.

We start with the basic premise that the Fourth Amendment proscribes only unreasonable searches, including warrantless searches. United States v. Gravitt, 484 F.2d 375, 378 (5 Cir. 1973), Cert. den. 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974); State v. Davis, 50 N.J. 16, 22, 231 A.2d 793 (1967), Cert. den. 389 U.S. 1054, 88 S.Ct. 805, 19 L.Ed.2d 852 (1968). The test is not whether the police followed the wisest course of action, but whether they acted reasonably under the circumstances.

We believe the instant case is controlled by South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, decided July 6, 1976, about six months after the trial judge rendered his opinion herein. Opperman reiterated the long-established rule that significantly less rigorous warrant requirements govern car searches than those relating to searches of homes or offices. It also recognized and approved the standard police procedure of impounding, inventorying and taking custody of a car when its occupant is arrested and removed therefrom. These caretaking procedures were approved in order to protect the owner's property while in police custody; to protect the police against the claims or disputes of disgruntled arrestees as to the contents of the car when police custody was assumed, and to protect the police from potential danger. Opperman further held that an inventory car search conducted after the police assume custody is a reasonable intrusion and, therefore, constitutionally permissible. It follows, therefore, that evidence obtained during such inventory process is admissible. In particular, and relevant to the instant case, Opperman points to many cases holding that 'standard inventories often include an examination of the glove compartment * * *.'

With these principles in mind, we turn to the proofs in the instant case to determine whether the detectives acted reasonably in impounding and inventorying defendant's car. Defendant concedes the validity of his arrest based upon the outstanding arrest warrant. Having removed defendant from the car and assumed control over it, they merely complied with police regulations when they impounded and inventoried the car. Furthermore, N.J.S.A. 39:4--136 would appear to permit the police to remove and store a motor vehicle which cannot be moved by the operator, or is improperly parked and left unattended upon a roadway. Nor are the police circumscribed by express statutory authority to impound motor vehicles. The inherent power of the police to impound motor vehicles may arise in a myriad of factual situations too numerous to attempt to define.

We find no support in the record for the trial judge's finding that defendant's car was searched before it was impounded. As indicated, the undisputed testimony is to the contrary. The existence of printed inventory sheets attests to the fact that the police merely used standard inventory procedures in the instant case. In refusing to accept officer Roth's testimony that impoundment was a normal police procedure, the trial judge relied upon the completed impoundment sheet which contained as the reason for the impoundment 'Pen Gun found in auto.' The impoundment sheet was signed by officers Frank Roth, Kenneth Calabrese and Phillip Kuscielecki, but it does not indicate which one filled in the report. In view of Roth's unequivocal and uncontradicted testimony, given before Opperman was decided giving his reasons under oath for the impoundment, the mistaken or carelessly given reason on the impoundment sheet should not vitiate an otherwise valid search. The good faith of the police has in no way been impugned, and there is nothing in this record to justify the conclusion that Roth orchestrated his testimony to meet constitutional standards. Since the philosophy behind the Fourth Amendment is to deter future police behavior violative of the amendment, our suppression of the instant search where no misbehavior exists would be counterproductive and injurious to the well-being of society. See State v. Hock, 54 N.J. 526, 257 A.2d 699 (1969), Cert. den. 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970).

It appears entirely reasonable to us that the police should impound defendant's car rather than leave it unattended on the streets of Jersey City, with all the attendant risks of vandalism, theft or unfounded charges against them for doing so. While other alternatives may have been available to them, their failure to adopt those suggested by the trial judge does not make their actions unreasonable within the meaning of the Fourth Amendment. As previously indicated, and in all fairness to the trial judge, had Opperman been decided before he rendered his decision, he might well have sustained the legality of the search.

We have also considerd whether as a matter of state law and policy we should impose more stringent standards when dealing with inventory searches than were established by Opperman, but decline to do so. Although we have such right, ² the philosophy expressed in Opperman comports with the standard of reasonableness ³ in this type of case and, therefore, a more stringent approach should not be adopted. Our views are reinforced by the American Law Institute's Model Code of Pre-Arraignment Procedure, § 230.6(3), adopted May 20, 1975 and which provides:

Vehicles impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents.

In light of our determination that the inventory search was unassailable, we do not pass upon the issues of whether the search was sustainable as a car search under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), or as a search incidental to a lawful arrest under United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

The judgment suppressing the search is reversed.

BOTTER, J.A.D. (dissenting).

By a 5--4 decision in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court upheld a routine inventory search of an unattended automobile after it had been lawfully towed away and impounded by the police for multiple violations of a municipal parking ordinance. However, Opperman does not compel the nesult reached by the majority in this case. Nor, in my opinion, should we adopt a rule that would sustain the search here either under the Fourth Amendment or the search and seizure clause of our own Constitution. N.J.Const. (1947), Art. 1, par. 7; ¹ see State v. Johnson, 68 N.J. 349, 353, 346 A.2d 66 (1975), adopting a 'higher standard' for consent search under state law than required by the Federal Constitution.

In Opperman, a vehicle was illegally parked overnight in a downtown area of Vermillion, South Dakota. It was ticketed at 3 a.m. and 10 a.m., then towed to the police impound lot and inventoried according to usual procedures. In upholding the seizure of marijuana found in the glove compartment, the court found that (a) the police were 'indisputably engaged in (a routine, community) caretaking search of a lawfully impounded automobile'; (b) the inventory was made only after the car had been impounded for multiple parking violations; (c) the owner was not present 'to make other arrangements for the safekeeping of his belongings'; (d) there...