Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d. Sullivan, J.A.D. (dissenting).
This is an appeal by the State, by leave of this court, from an order of the Mercer County Court dated October 8, 1962 suppressing evidence intended by the State for use in the trial of an indictment of the three defendants for carrying a concealed firearm in an automobile on the ground that it was discovered by an unconstitutional search of the automobile. The evidence consisted of the firearm in question.
A jury was impaneled for the trial of the case on September 18, 1962, and it was at once excused temporarily for what appears to have been a prearranged hearing of a motion by defendants to suppress the firearm as evidence because obtained by the authorities as the result of an unconstitutional search and seizure within principles binding the State enunciated in Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081 (1961). A hearing took place forthwith on proofs adduced by the State. Defendants offered to submit counter-proofs, but refrained when the court implied it was ready to rule in their favor on the basis that the State's own proofs demonstrated the illegality of the search. The court then made a formal ruling to that effect, holding the State had shown only "suspicious activity" by defendants prior to the search, not probable cause for a search of the car without a warrant, as here. After so ruling, the court recalled and discharged the jury.
The evidence adduced on the motion was as follows. One Miga, owner of a bar at Pine and Ohio Avenues, Trenton, went into the street from the bar at 1 A.M. on July 25, 1962 when he heard his dog bark. He testified:
"In the meantime when I looked I seen a car across the street with three men in it, * * * at the time it looked like a light chocolate car, it was real light. Then as I went in they just shot right by. That is all."
One Ozga, owner of a bar at New York and Mulberry Avenues, Trenton, testified that shortly after 1 A.M. on the same date,
"three persons looked in through the screen door so I paid no mind to it. A few minutes later I seen it again, so I was curious. I walked out. I looked out toward New York Avenue. I didn't see nobody. So I went the opposite side of Mulberry. I looked up and I didn't see nothing, so I came back to the bar, I got a flash light and I went out the ladies' entrance on Mulberry Street. I looked in the cars and trucks. I even looked in the back yard. I didn't see nobody. I headed back again, and as I got out Mulberry Street they just happen to walk by me. When they seen me they walked fast. So at that time I took notice one had a glove, a yellow glove, * * *. Then as they got out further they started running, they run up as far as, past Ohio Avenue, turned into the alley toward Pine Street.
Q. As a result of that what did you do?
A. Well, when I seen the glove and all, I called up headquarters and explained to them. They asked me what happened. I gave them the details; so after that two officers came over and questioned me, asked me all questions. I told them the same thing.
Q. Did you give the description of these men to the officers?
A. Yes. The officers and headquarters."
On cross-examination Ozga was asked:
"Q. Did you make any complaint to the police officer about the commission of any crime specifically related to these young men?
A. No crime committed, nothing. All they did I thought was fishy was wearing the glove. That's the reason I called headquarters."
Trenton police officer Crerand testified as follows. He and an associate patrolman, Vandeleur, were detailed on the morning in question to the location of Ozga's bar. Ozga informed him "that a few minutes before our arrival he had heard a noise in the rear of his building. He went out with a friend and a flashlight and he saw three * * * youths running from the back of the building, run north on Mulberry Street toward Ohio Avenue, and they disappeared from view." In the description given the officers one of the "teenagers" was described as wearing a yellow glove on one hand. The officers began "checking the neighborhood" when they were stopped by Miga, who informed them that "about one o'clock that morning three * * * youths -- Well, he heard his dog was barking and he came out to investigate and three * * * youths were in a tan car which he thought was a Pontiac, was parked across from his house. As he came out the car
pulled away from him and turned in front of him, down Ohio toward Mulberry." The officers "associated the first job with the second" and "put out an alert for that auto."
Crerand further testified that at 2:30 A.M. the car in which defendants were riding was stopped as a result of the alert by two other Trenton patrolmen and held by them for questioning by Crerand and Vandeleur at the request of the latter. Crerand saw a yellow glove which was visible through the window "on the back of the car inside." On interrogation, defendant Lee told Crerand it was his glove; that he had been in the vicinity of Mulberry and New York Avenues to use the bathroom; and that he used the yellow glove for sparring because he had a "bad wrist." The glove, which was offered in evidence, was left-handed. Defendants were ordered out of the car, Vandeleur went around to the right side of the car, and shortly reported to Crerand, "Hold them * * * here's a gun." The defendants were then searched personally, the car was searched thoroughly, and defendants were taken into custody. There is no evidence that the defendants were personally searched before the gun was found.
On cross-examination, asked as to his intention in asking defendants to leave the car, Crerand said: "We wanted to check them. We saw the glove. We wanted to check the men personally." Checking the car "wasn't particularly in my mind at that particular time." Neither of the bar owners mentioned seeing a gun to the officers, and Crerand admitted that he had no information which "even remotely pointed in the direction of the existence of a gun in that car."
Vandeleur testified that after Crerand asked the defendants to get out of the car and he came around to the passenger's side,
"I had the door open and as they were getting out I had my flashlight. I was observing their movement, procedure. I just seen an object down on the floor. I just reached down and I grabbed it and it was a gun so then I told my partner to hold everything right there, as I felt possibly they might have another weapon, similar type, on their person, so I retrieved the gun as they got out."
On cross-examination, Vandeleur said:
"I was, when they were getting out I had the light on. I was just, I was observing, watching and I seen this here. I didn't know what it was laying on the floor. I just reached in.
Q. You didn't know what it was when you first saw it?
Q. You didn't know what it was until you reached in and had it in your hand?
Q. Can you tell the court what part of the gun was protruding and caught your eye sight?
A. I recall, I believe it was the barrel. I remember reaching in and grabbing the barrel.
Q. Now, can you tell the court precisely where in the vehicle the gun was found?
A. It was near the center, underneath the front seat, just as there's a hump that comes over the transmission. That is where the crank shaft runs under and it was over there. I couldn't say whether, which side it ...