Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d. Sullivan, J.A.D. (dissenting).
Defendant appeals from a conviction of receiving stolen property in contravention of N.J.S. 2A:139-1. The principal ground of appeal concerns an allegedly illegal search of defendant's automobile resulting in the seizure by the police of six tires found in the trunk of the car. One of these was introduced in evidence at the trial at which defendant was convicted. The trial took place before a jury June 19 and 20, 1962.
On February 4, 1961, at about 1:30 a.m., a resident telephoned Elizabeth police headquarters to report he and his wife had just seen someone breaking into the nearby "Pires Gas Station." A radio patrol car with two police officers was dispatched to the scene. One of them, Officer Iannaccio, testified that when they arrived the resident informed them that the man came out of the gas station, got into an automobile parked nearby, and while attempting to drive away "got stuck" in the snow after a few feet (it was snowing heavily at the time). He was not observed to have carried anything out of the gas station. The man then had departed on foot, leaving the car "partially in the street." The police also interviewed one Blackshear, who was on a nearby street corner, and who told them he had seen and briefly spoken with an individual who was leaving the scene where the car was parked. He also described the person to the police. (Some time later Blackshear identified the defendant in a police line-up.) Thereafter, Iannaccio's fellow officer, who did not testify, opened the trunk of the car and the officers found therein six new tires which later turned out to have been stolen the night before from another gas station. These were the subject matter of the instant conviction.
Officer Iannaccio professed not to know whether the car trunk was locked or how his fellow officer opened it. Iannaccio also testified that he reported the license number on the car by radio-phone to police headquarters and was shortly informed that a teletype inquiry revealed a registered ownership name and address for the car identical with those of
defendant, who resided in Elizabeth. The testimony does not indicate whether the search of the car trunk preceded the ascertainment of the registered ownership of the car,*fn1 but it is clear that these events took place at about the same time, soon after the police arrived at the scene and interviewed the people mentioned above. Defendant was arrested when he went to police headquarters to claim his car several days later.
The State has not argued on this appeal that the question as to the illegality of the search of the car was not timely raised by the defendant at trial level. However, we notice the point since the trial court was of the view that objection should have been made by motion antecedent to trial. The search in this case preceded the decision in Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2 d 1081, 84 A.L.R. 2 d 933 (1961) by several months. However, trial herein took place a year after that ruling, which holds evidence seized in violation of the Fourth Amendment is inadmissible in a state court criminal prosecution. When one of the stolen tires was first offered in evidence by the State, counsel for defendant (assigned) stated that he had no objection. The same position was taken as to a photograph of all the tires admitted in evidence. At the conclusion of the State's case, however, the defense moved for dismissal on two grounds, one of which was that the objects received in evidence were the result of an illegal search and seizure. The court reserved decision in order to consider whether the motion should have been made before trial, and it ultimately denied the motion.
R.R. 3:2A-6, requiring a motion to suppress illegally seized evidence to be made before trial, became effective January 2, 1963, after the trial, and therefore does not control this case. The only procedural barrier against defendant pertinent here was R.R. 1:5-1(a) which required defendant to have stated his objection to the evidence at the time adduced. State v. Smith , 37 N.J. 481, 489 (1962). However, in view
of the plain error rule, the importance of the constitutional right involved, the fact that objection was actually made during the trial, although not until the conclusion of the State's evidence, and the absence of objection to our consideration of the issue by the State, we shall in the interests of justice entertain it.
The search here was conducted without a warrant and was not incidental to an arrest. It can be justified as reasonable within the Fourth Amendment, therefore, only if the circumstances fairly bring it within the exception to the requirement of a search warrant generally known as the "exceptional circumstances" doctrine, referred to in Johnson v. United States , 333 U.S. 10, 14, 15, 68 S. Ct. 367, 92 L. Ed. 436 (1948); McDonald v. United States , 335 U.S. 451, 454-455, 69 S. Ct. 191, 93 L. Ed. 153 (1948); United States v. Jeffers , 342 U.S. 48, 51, 52, 72 S. Ct. 93, 96 L. Ed. 59 (1951); Chapman v. United States , 365 U.S. 610, 615, 81 S. Ct. 776, 5 L. Ed. 2 d 828 (1961); Ker v. California , 374 U.S. 23, 42, n. 13, 83 S. Ct. 1623, 10 L. Ed. 2 d 726 (1963); cf. Taylor v. United States , 286 U.S. 1, 5, 6, 52 S. Ct. 466, 76 L. Ed. 951 (1932); and more aptly described as the "urgent necessity" rule in State v. Macri , 39 N.J. 250, 254 (1963). Compare the concept of "exigent circumstances" in an analogous situation mentioned by the court in Miller v. United States , 357 U.S. 301, 308-309, 78 S. Ct. 1190, 2 L. Ed. 2 d 1332 (1958).
It is of interest that no federal or New Jersey appellate decision has been found actually sustaining a search without a warrant, not incidental to an arrest, on the express basis of the exceptional circumstances rule.*fn2 And this notwithstanding a plethora of cases striking down searches for illegality [83 NJSuper Page 569] although involving situations where the police authorities may reasonably have thought it necessary from a law enforcement standpoint to search without a warrant. In United States v. Jeffers, supra , it was emphasized that while an exemption from the requirement of a search warrant lies both for searches incident to a valid arrest and in "exceptional circumstances," in both instances "the burden is on those seeking the exemption to show the need for it" (342 U.S. , at p. 51, 72 S. Ct. , at p. 95).*fn3 "The exigencies of the situation" must appear to make the by-passing of the warrant "imperative." McDonald v. United States, supra (335 U.S. , at p. 456, 69 S. Ct. , at p. 191). And in every case of claim of exceptional circumstances, what is measured by the court is the justification for not first obtaining a search warrant -- generally speaking a sine qua non of a lawful search -- in the light of the urgency of the circumstances being invoked to excuse its absence. Chapman v. United States, supra (365 U.S. , at pp. 614-615, 81 S. Ct. , at p. 776); Johnson v. United States, supra (333 U.S. , at pp. 14, 15, 68 S. Ct. , at p. 367). In both of the cases last cited the court stresses: (1) that inconvenience to the officers and the slight delay involved in processing the application for a warrant is never a convincing reason for proceeding without one; and (2) the fact alone that the officers are in possession of information of crime adequate to procure a warrant can never justify them in searching without it. Ibid. On principle and logic, these precepts must govern no matter how strong the evidence of criminal activity on the part of the person whose home or effects are searched.
In the case before us the State contends the exceptional circumstances rule is applicable, and our dissenting colleague holds the same view. Before analyzing the precise facets of the instant fact-complex thought to warrant its invocation here, we look to expressions of the United States Supreme Court in the decisions cited above which have recognized the rule for an insight into its rationale. In rejecting the pertinence of the principle to the facts of the Johnson case, supra , where it was for the first time clearly formulated as a comprehensive concept, the court there said: "No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction * * *." (333 U.S. , at p. 15, 68 S. Ct. , at p. 369.) Essentially similar expressions are to be found in the later cases, e. g., Chapman v. United States, supra (365 U.S. , at p. 615, 81 S. Ct. , at p. 776), supplemented by allusions to situations of imminent danger to life, health or the like, e. g., McDonald v. United States, supra (335 U.S. , at p. 454, 69 S. Ct. , at p. 191); see also footnote 2, p. 4, supra.
Reflection on the excerpt quoted above from the Johnson case, illuminated by the facts of that and other decisions mentioning the same criterion of "exceptional circumstances," makes it evident that the controlling rationale (of course, assuming probable cause) is that if first going for a search warrant means that items of seizable evidence or the person of a suspect on which or whom the police are closing in will escape seizure or arrest, the prerequisite of the warrant may be dispensed with. In all the cases mentioned the facts showed that the time which would have been involved in first obtaining a warrant would not have impaired the then existing likelihood of seizing either the suspect or the evidence, as the case might be, on the spot. In addition to the Johnson and McDonald cases, supra , see, exemplifying the foregoing, United States v. Jeffers, supra (342 U.S. , at p. 52, 72 S. Ct. , at p. 93); Walker v. United States , 225 F.2d 447, 450 (5
Cir. 1955); Hall v. Warden, Maryland Penitentiary , 313 F.2d 483, 493 (4 Cir. 1963).
It is further plain, significantly to the present case, that when the Johnson and other cited opinions refer to the fact that "no suspect was fleeing or likely to take flight," they are speaking in the context of the searching officers assumedly coming upon fleeing or imminently fleeing suspects taking the evidence in question with them or destroying it. In none of the opinions were the facts suggestive of an intent by the court to negate the hypothesis that in the specific case under consideration a search of premises or of a vehicle without a warrant was necessitated by the fact that the suspect was already gone therefrom and in the process of flight. In Johnson , where the "fleeing suspect" notion was born, for example, the suspect was in the apartment when entry took place, ...