Conford, Foley and Leonard.
[96 NJSuper Page 3] Defendants appeal from their conviction of breaking and entering with intent to commit larceny, N.J.S. 2 A:94-1, and of knowing and unlawful possession of burglary tools with intent to use them unlawfully, N.J.S. 2 A:94-3. The case was tried to a jury. The sole ground of appeal
is that the seizure of defendants' shoes by the police after their arrest was an unlawful invasion of their constitutional rights.
Defendants did not testify in this case. The State's proofs showed the following. The Paramus Diner is situated on Route 17, a north-south highway. The Rounders Restaurant is located 116 feet south of the diner. At about 4 A.M. on July 26, 1965 Wilford Teague, a truck driver, parked his car at the rear of the diner which was then open for business. (The restaurant closed at 3 A.M.) Teague noticed defendant Cacciola and three other men drive up in a car which they parked in front of his. Teague, who was also a part-time special patrolman of the Borough of Paramus, entered the diner with another truck driver, Vincent Terhune. Shortly thereafter Cacciola entered the diner.
Teague, Terhune and Mrs. Frances Donohue, a waitress then on duty, told basically the same story as to Cacciola's conduct within the diner. He ordered some food and then left the diner proper through a rear door leading to rest rooms and telephones. He did this about six or seven times. Teague testified that the intervals during which Cacciola was out of sight were too brief for use of the men's room, and Frances Donohue similarly felt he was not using the telephone. Teague became suspicious and called the police department.
Patrolman Garris of the Paramus Police arrived at 4:20 A.M. in response to the call. While conversing with Teague, Garris observed three men walking from the rear of the restaurant toward the diner. He ordered them to stop. They "started to split up in three directions." Garris again ordered them to stop. They hesitated and then came over to the officer. Garris asked them for identification, but they were unable to produce any. In response to his inquiry concerning their presence behind the restaurant they stated that they had been urinating behind the building. When Garris asked them why they did not use the facilities of the diner and join Cacciola with whom they admitted having been, they
simply said that they did not want to go in the diner. Garris informed them that they were under arrest as disorderly persons for failure to give a good account of themselves, see N.J.S. 2A:170-1, and prepared to take them to the police station in his car. Just before they left, Cacciola emerged from the diner and came to the car. On request he produced identification and was not then arrested. He was subsequently arrested at about 9:30 or 10:00 A.M. the same day. Garris identified Speciale, Viera and Faggiole as the three men he had arrested.
At about 6 A.M. Frances Donohue found a valise of burglar tools behind the restaurant. At about 7:30 A.M. Detective Majcher of the Paramus Police investigated and found evidence of attempted burglary. He observed a heelprint in the soil near a window at the southwest end of the restaurant building, made a plaster cast impression of it, and took samples of soil found on the outside window ledge at this part of the building. He also found a heelprint on the interior ledge and a soiled heelprint on a rug beneath the window. Additionally, he took samples of pink and gray paint from a door to the ladies' lounge, which appeared to have been forced, and fragments of paint from the frame of the door to the photography room, which also appeared to have been forced.
At the station house Captain Elliot questioned Speciale, Viera and Faggiole briefly as to their presence behind the restaurant and their knowledge of the burglar tools which had been taken to the station. He terminated his questioning when defendants refused to answer. He then went to the Rounders Restaurant and after investigating and conferring with Detective Majcher returned to the station and, as he put it, arrested them for breaking and entering "in addition to" the arrest for disorderly conduct. They were then asked for their shoes. They complied with the request and the shoes were turned over to Majcher. The shoes, together with the soil, paint samples, heelprints and burglar tools were sent to the F.B.I. laboratory for analysis.
Special agent Thompson of the F.B.I. testified that soil from the bottom of Speciale's shoes matched generally the samples taken from the window ledge and areas just beneath the window, both inside and outside the building, and that the paint from the door of the ladies' lounge matched paint chips on two chisels found in the bag of burglar tools, in color, texture, layer construction and composition. He testified further that cement material found on Speciale's shoes was also present in the valise and on the tools. Another agent testified that the paint samples taken from the photography room doorframe accorded with the paint taken from the sole of Speciale's shoes with respect to color, thickness and texture.
On this appeal defendants argue solely that the taking of their shoes while in custody violated their rights under the Fourth, Fifth and Sixth Amendments of the United States Constitution. ...