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State v. Dilley

Decided: July 5, 1967.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THEODORE DILLEY, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

[49 NJ Page 461] The defendant Dilley was convicted of carrying a concealed weapon in violation of N.J.S. 2A:151-41. His appeal to the Appellate Division resulted in a judgment of affirmance and he then appealed to this Court alleging that

the State's case was based on an unconstitutional search and seizure of the weapon.

During the early weekday morning of December 29, 1964 Lieutenant Conway, a veteran member of the New Brunswick Police Department, was patrolling the New Brunswick streets in a radio police car. He was in a low income, high crime rate, section of the city when he saw two men walking on Neilson Street between Oliver and Morris Streets. It was then about 3 A.M. and as the men walked, they kept turning their heads every few steps looking to the rear. He drove on, making a series of turns, until he observed the men standing between two automobiles in a municipal parking lot. As he pulled into the lot, the men turned and walked back to the street. He followed and called to them to stop. He got out of his car, asked them what they were doing there and they replied "nothing." He told them they were under arrest and he gave the defendant Dilley "a quick frisk" by patting him on the right side of his ski jacket. He felt a gun in Dilley's pocket and removed it. It was a loaded .38 caliber revolver. The other man, named Brinkley, was also found to be armed. Brinkley was convicted, along with Dilley, of carrying a concealed weapon but Brinkley has not taken any appeal.

On Dilley's pretrial motion to suppress the weapon as having been illegally obtained, Lieutenant Conway testified as to the circumstances. He knew the area very well, having been born and brought up there, and he described it in detail. He had worked in the area as a police officer for fifteen years, knew the people there and both Dilley and Brinkley were strangers to him. Their appearance and conduct in view of the time and place had naturally aroused his interest and had furnished him, as an experienced officer, with more than enough reason to suspect and inquire. Cf. People v. Beasley, Cal. App., 58 Cal. Rptr. 485, 490-491 (1967). When he heard their answer to his question as to what they were doing, he considered that there was sufficient cause for their arrest under the New Brunswick Ordinance which provides that an apprehended person who cannot give a good account of himself

and is in the city for an unlawful purpose is a disorderly person. See N.J.S. 2A:170-1; State v. Salerno, 27 N.J. 289 (1958); cf. United States v. Margeson, 259 F. Supp. 256 (E.D. Pa. 1966). When he frisked Dilley he did it for self-protection. He described his action as "common police procedure" in accordance with formal instructions he had received in both federal and state police schools. He stressed that he was alone when he confronted the two men, that he did not know "what they were carrying" and that it was "very well possible" he could have been "killed by one of them."

In denying the motion, the trial court found that, in view of the circumstances, there was a valid arrest and incidental taking of the gun and, in the alternative, there was a lawful right to question Dilley and incidentally frisk him for the officer's protection. As to the first ground the defendant denies that the arrest was a lawful one and he suggests that it was a sham rather than a bona fide arrest (Taglavore v. United States, 291 F.2d 262, 265 (9 Cir. 1961)) although the record furnishes no basis whatever for that charge. He does not attack the ordinance's validity (cf. Douglas, "Vagrancy and Arrest on Suspicion," 70 Yale L.J. 1 (1960)) but urges that the evidence did not establish that Dilley was in fact in the city for an unlawful purpose in violation of it. See State v. Salerno, supra, 27 N.J., at p. 293. However the issue is not whether there was sufficient proof to establish an offense under the ordinance; the issue is rather whether the officer had probable cause to believe that Dilley had offended its terms by failing to give a good account of himself while in New Brunswick for an unlawful purpose. See Ricks v. United States, 228 A. 2 d 316, 321-322 (D.C. Ct. App. 1967); Remington, "The Law Relating to 'On the Street' Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General," 51 J. Crim. L.C. & P.S. 386, 391 (1960); Note, "Detention, Arrest, and Salt Lake City Police Practices," 9 Utah L. Rev. 593, 606 (1965).

In State v. Mark, 46 N.J. 262 (1966) we pointed out that probable cause means less than legal evidence necessary

to convict though more than mere naked suspicion; that it is a commonsensible rather than a technical concept; and that it deals with the reasonable probabilities upon which officers must act quickly for the protection of society rather than with the proof beyond reasonable doubt which the State must have to proceed to trial and conviction. 46 N.J., at p. 271; see Brinegar v. United States, 338 U.S. 160, 175-177, 69 S. Ct. 1302, 93 L. Ed. 1879, 1890-1891 (1949). Lieutenant Conway had observed the suspicious behavior of Dilley and Brinkley along Nielson Street, he knew they were strangers to the area and he observed them at three o'clock in the morning standing between two cars in the municipal parking lot, he saw them leave the parking lot as soon as they saw him arrive, and, in response to his inquiry as to what they were doing, he received an answer which tended to strengthen his suspicions that they were up to no good. Considering all of the circumstances, may it not fairly be said that the officer had probable cause for believing that Dilley and his companion were intent on stealing a car (as was confirmed by their later disclosures) and, that being so, the arrest and incidental taking of the weapon were lawful without regard to the State's ultimate ability to obtain a conviction under the ordinance. See State v. Mark, supra, 46 N.J., at pp. 271-273; State v. Cook, 47 N.J. 402, 414 (1966). However, we need not pursue this issue for we are satisfied that the trial court's alternative ground for denial of the motion represented a sound approach to the important constitutional and enforcement problems presented and should be reaffirmed here.

The police officer's duties include vital preventive roles. In their performance he clearly should have the right to stop persons on the street for summary inquiry where, as here, the circumstances are so highly suspicious as to call for such inquiry. Reason and common sense support this procedure as do many statutory enactments and judicial decisions here and elsewhere. See People v. Rivera, 14 N.Y. 2 d 441, 252 N.Y.S. 2 d 458, 201 ...


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