Goldmann, Lewis and Matthews. The opinion of the court was delivered by Matthews, J.A.D. Lewis, J.A.D. (dissenting).
Defendant moved to suppress certain evidence as being the fruit of an unlawful search and his motion was denied in the trial court. We granted leave to appeal, and now reverse.
On January 23, 1969 two Westfield Police officers cruising in a patrol car saw a vehicle driving at a moderate speed through the business section of town. Because, they said, the driver was wearing gloves (note it was January); and because of the slow speed, and again because the two occupants, whom they did not recognize, appeared to be looking from side to side, the officers became "suspicious" and trailed this vehicle at a distance. A short while later, the vehicle was stopped by the police who asked the driver for identification. He produced his driver's license and registration card. Due to the ragged condition of the registration, the police were unable, they said, to read the entire license number, although they could make out the three letters and the first two of the three numbers, all of which matched the license plates. Only the final digit was in doubt. Moreover, the name and address of the owner and the physical description of the vehicle completely matched defendant
driver's license and the car itself. Nonetheless, the police felt the circumstances to be suspicious and allegedly ordered the occupants out of the car and frisked them. Defendant alleges that one of the officers ordered him to open the trunk, but the police state that the compliance with their request was wholly voluntary. A search of the trunk, however, disclosed nothing. The police than confiscated the keys to the vehicle and placed defendant and his companion in the patrol car, leaving the "suspect" motor vehicle unlocked and unattended, although they stated that another officer would be along shortly to guard the vehicle. Defendant and his passenger were taken to police headquarters where they were questioned at length as to the ownership of the vehicle. Defendant allegedly requested permission to call a lawyer, but the request was denied. After approximately I/2 hour, defendant's ownership of such a car was confirmed through Trenton, but the police evinced a desire to check the serial number of the vehicle. Defendant objected, but was physically taken back to the vehicle. There, one of the officers opened the car door and attempted to read the serial number on the doorpost. He claims at this point he saw something protruding from under the front seat. The protrusion proved to be a sawed-off shotgun, which was immediately seized and defendant was thereupon charged with illegal possession of a weapon.
As noted, defendant moved to suppress the evidence thus seized on the ground that it was the fruit of an illegal search and seizure. The trial judge, in a rather extended oral opinion, found that the police had no probable cause to conduct a search, but further held that the gun was discovered as an incident to a lawful stopping and investigation and was therefore admissible. We might observe that there is nothing in the facts stated to be found by the trial judge which supports his conclusion.
The threshold question here is whether the "investigation" conducted by the police officer was or was not a "search" so as to require a search warrant, an attendant valid arrest, or
probable cause. The State contends that the entire incident was merely an investigatory detention of limited intended scope and that the discovery of the gun was merely a fortuitous by-product of the investigation.
It is, of course, well established that the fruits of an unconstitutional -- i.e. , legally "unreasonable" -- search and seizure must be suppressed at any later criminal proceeding. Mapp v. Ohio , 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Wong Sun v. United States , 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). However, N.J.S.A. 39:3-29 explicitly authorizes the police to stop vehicles at random and to demand the production of a driver's license and a motor vehicle registration. Cf. N.J.S.A. 39:5-25; State v. Padavano , 81 N.J. Super. 321, 328 (App. Div. 1963). In State v. Kabayama , 98 N.J. Super. 85 (App. Div. 1967), aff'd o.b. 52 N.J. 507, the temporary stopping of automobiles for purposes of verifying ownership and driving credentials was held to be a valid and reasonable exercise of police power.
If contraband or weapons are visible from outside the vehicle, the observation of such evidence, absent a prior physical entry, does not constitute a "search" within the constitutional meaning. State v. Gosser , 50 N.J. 438, 447 (1967); State v. Griffin , 84 N.J. Super. 508, 517 (App. Div. 1964); Campbell v. United States , 110 U.S. App. D.C. 109, 289 F. Supp. 775 (D.C. Cir. 1961); United States v. Jankowski , 28 F.2d 800, 802 (2 Cir. 1928); see also State v. Smith , 37 N.J. 481, 496 (1962); State v. Murphy , 85 N.J. Super. 391, 399 (App. Div. 1964), aff'd 45 N.J. 36 (1965); State v. Mark , 46 N.J. 262, 271-272 (1966).
Under the facts adduced below, the gun was not visible until the police further checked out the interior of the vehicle. While N.J.S.A. 39:3-29 authorizes temporary detention to check the license and registration, it is apparent that the Westfield police exceeded a simple documentary check and were actually conducting a ...