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State v. Campbell

Decided: November 8, 1967.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HERBERT LEE CAMPBELL, DEFENDANT-APPELLANT



Kilkenny, Carton and Fritz. The opinion of the court was delivered by Carton, J.A.D.

Carton

The County Court, sitting without a jury, convicted defendant of possession of lottery slips in violation of N.J.S. 2A:121-3. Defendant seeks a reversal on the single ground that the search of his person was unreasonable and the evidence obtained thereby (lottery slips) should have been suppressed.

On the motion before trial an officer of the Newark police force testified that on October 21, 1966, while on motorcycle duty, he observed defendant driving a 1954 Chevrolet on Bergen Street. Defendant's car stopped for a traffic light and turned into Springfield Avenue. The officer observed that the automobile had only one headlight due to the absence of a left fender.

The officer requested defendant to pull the car over to the curb and then asked him for his license and registration. Defendant supplied his own name and address, but could produce neither a driver's license nor the car registration. Defendant told the officer he had borrowed the car from a man in a garage on Avon Avenue, about five blocks away. Defendant gave the officer the first name of the man whose car he said he borrowed, but did not know his last name. Asked what police action he took at that time, the officer replied:

"Under the circumstances, I had no valid identification to prove who he was. He didn't know the owner of the car. I informed him that he was going to be locked up for unlicensed driver and with no registration, so on, and I called for a radio car."

The officer described what happened next in the following language:

"When the radio car arrived, just before placing him in the rear seat for transportation to the precinct, I gave him what we consider a pat-down, at which time I felt a bulge in his coat. I put my hand in the pocket where the bulge was, and at this time I pulled out this envelope. Looking in the envelope there was several envelopes, I believe. There was the ten and also papers that appeared to be lottery slips."

The officer said that he then took possession of the lottery slips.

On cross-examination the officer testified that the reason he stopped the car was because of the fact that it had no headlight and that it was being operated in violation of R.S. 39:3-56. The automobile had a license plate on it. His purpose, the officer stated, in "patting the defendant down" was "to check for weapons" and to make sure the defendant was not "carrying anything dangerous." He declared that when he felt the bulge and pulled out the envelope, it was a "large envelope"; that he looked inside and saw "smaller envelopes and lottery slips." "Some of the slips were in the large envelope and some in the smaller envelopes."

Later he issued three traffic tickets to defendant for violations of R.S. 39:3-56 (lack of lighted headlight), 39:3-29 (lack of possession of operator's license and vehicle registration), and 39:3-10 (lack of driver's license). The officer testified that he had been on motorcycle duty approximately four years. During that time he had many occasions to stop other people who could not produce their registration. This type of occurrence, he said, was not considered particularly unusual.

At the trial the objection to the introduction of the evidence was renewed. The arresting officer iterated generally the testimony he gave at the hearing on the motion and gave some additional details. He said he found a manila envelope and other papers in defendant's coat pocket. He identified ten small manila envelopes ...


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