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 and N.J.S. 2A:119-2. 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. He 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 and he then walked back to the station wagon, which was station wagon. This was done. At the magistrate's office in Ellendale Reynolds told Hampson to stay in the patrol car
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.
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 ...