Gaulkin, Foley and Collester. The opinion of the court was delivered by Collester, J.A.D.
Defendants Wean, Clark and Barrett appeal from convictions adjudging them disorderly persons, following a trial de novo in the Hudson County Court, based on complaints charging violation of N.J.S. 2A:170-3 (carrying weapons or burglar tools with intent to break and enter). Sentences of 90 days in the county penitentiary were imposed.
The trial in the County Court was heard and determined on a stipulation of facts which stated, inter alia,
"On November 23, 1962, while police were investigating an attempted burglary [they] attempted to stop a suspicious automobile in which there were three individuals. The car did not stop but speeded away, with police in pursuit. The car subsequently stopped and three men [the defendants] fled from said automobile, two running in a southerly direction therefrom and one in a northerly direction. They were apprehended by the police and arrested. A search of the automobile brought forth burglary tools in the trunk of said car.
In connection with this appeal, which is being heard on stipulated facts, the following are conceded:
(a) at the time of the arrest the defendants were searched and no burglary tools were found on their persons.
(b) the burglary tools were found in the trunk of the automobile.
(c) the three defendants were in possession of and in said automobile.
(e) the items found in said trunk of said automobile are conceded to be burglary tools.
(f) for the purposes of this hearing 'intent to break and enter' and 'intent to steal' are conceded by the defendants.
(g) there was a legal arrest."
The above facts are amplified by the undisputed findings of the County Court judge in an opinion denying a motion to suppress evidence. Such findings indicate that when the defendants were taken into custody, Wean, operator of the automobile, was charged with violation of the motor vehicle laws, and the three men were taken to the police station where they were ordered to remove the contents of their pockets. On Wean's person was the key to the automobile trunk. Police, using this key, opened the trunk and found the alleged burglar tools. Following this search and seizure the complaints were made charging defendants as disorderly persons under N.J.S. 2A:170-3.
The motion to suppress such evidence as the product of an illegal search and seizure was made to and denied by the County Court prior to trial and conviction of the defendants in the municipal court. The ...