For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.
The defendant's conviction of possession of lottery slips was reversed by the Appellate Division on the ground that the evidence was the product of an illegal search. 97 N.J. Super. 435 (1967). We granted certification on the State's application. 51 N.J. 388 (1968).
While on motorcycle duty, Officer Delaney of the Newark Police Department observed the defendant driving a car with only one headlight. In response to the officer's direction, the defendant pulled over to the curb. He was asked for his driver's license and registration certificate but "he could not produce a license or any substantial identification at that time." When asked whose car it was he said "he didn't know" and that he had "borrowed it from some fellow
in a garage on Avon Avenue." At this point the officer told him he was being arrested and called for a radio car. When the radio car arrived and just before the defendant was placed in it for transport to the police precinct, the officer gave him what he called a "pat-down". He felt a bulge, put his hand in the pocket where the bulge was located, and pulled out a large envelope which contained smaller envelopes and lottery slips. The pat-down, in the officer's language, was "to check for weapons" and to make sure the defendant was not "carrying anything dangerous."
Upon his arrest, the defendant was charged with violations of R.S. 39:3-56 (lack of a lighted headlight), R.S. 39:3-29 (lack of possession of driver's license and registration certificate) and R.S. 39:3-10 (lack of driver's license). He was later indicted for unlawfully and knowingly having "in his possession certain slips, papers and memoranda pertaining to the business of a lottery or lottery policy so-called, contrary to the provisions of N.J.S. 2 A:121-3." Following the return of the indictment, he moved to suppress the lottery slips which had been taken from his person at the time of his arrest. His motion was denied and, after a waiver of jury trial, he was tried before Judge Hayden and was found guilty. In reversing the conviction, the Appellate Division took the position that while the officer had the right to patdown for weapons he had no right to remove the envelope and inspect its contents. It relied upon the limitations voiced in the "stop and frisk" cases such as State v. Terry, 5 Ohio App. 2 d 122, 214 N.E. 2 d 114 (1966), aff'd, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2 d 889 (1968) though those cases dealt with situations, unlike the one before us, where there was no arrest or probable cause for arrest at the initiation of the frisk or pat-down. See State v. Dilley, 49 N.J. 460 (1967).
In Terry the Supreme Court upheld a stop and frisk for weapons in circumstances which made such police conduct reasonable though there was no antecedent arrest or probable cause for arrest. In the course of his opinion for the Court,
Chief Justice Warren differentiated "a search incident to an arrest" from the more limited search for dangerous weapons which is the hallmark of the stop and frisk, saying:
The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 883, 11 L. Ed. 2 d 777, 780 (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310, 87 S. Ct. 1642, 1652, 18 L. Ed. 2 d 782, 794 (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a "full" search, even though it remains a serious intrusion. 392 U.S. 1, 25-26, 88 S. Ct. 1868, 1882, 20 L. Ed. 2 d 889, 908.
The fourth amendment, in expressing the constitutional guarantee against unwarranted searches and seizures, balances the rights of the individual and society and embodies the acknowledged test of reasonableness; it is only the unreasonable search and seizure that it condemns. See State v. Davis, 50 N.J. 16, 22 (1967). In its administration, the courts have announced various general principles including the familiar one that a search may be made as an incident to a lawful arrest. In State v. Mark, supra, we noted that such incidental search is customarily justified in the cases by the need of seizing any weapons which the defendant might use to assault the arresting officer or to effect an escape and by the further need for preventing the destruction of any incriminating evidence on the defendant's person or under his immediate control. 46 N.J., ...