The opinion of the court was delivered by: LACEY
Edward Clark, who is presently on probation under the supervision of Respondent Mulligan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, et seq. Petitioner has standing to seek such relief notwithstanding his enlarged status. Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963); Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968).
Petitioner's conviction was affirmed by the New Jersey Superior Court, Appellate Division, in an unpublished opinion dated February 23, 1972. The New Jersey Supreme Court denied a petition for Certification on April 18, 1972. State v. Clark, 60 N.J. 351, 289 A. 2d 796 (1972). Petitioner has thus exhausted his state remedies. 28 U.S.C. § 2254. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
Petitioner claims that his conviction is constitutionally defective because the heroin admitted into evidence at his trial was procured through an illegal search of his automobile. This issue was first raised on a pre-trial motion to suppress which was heard and denied on March 26, 1971. (Ex. P-1)
The testimony adduced at the suppression hearing and at trial (Ex. P-2) was as follows: On the afternoon of November 3, 1970, petitioner was standing in front of his automobile which was parked on North 14th Street in Newark. The battery in the automobile had been stolen the night before and petitioner was attempting to start it with an old battery. As he worked, petitioner was speaking with several other persons.
An unmarked police car, on routine patrol, was parked near petitioner. The officers observed a pink card on the windshield of the automobile. This card is given to the purchaser of an automobile and allows him fourteen days in which to have a State inspection. The police officers approached petitioner and asked him for his license and registration. They were produced and verified. The police officers then made a phone call and discovered that petitioner was wanted on an outstanding narcotics charge. During this check petitioner was evidently sitting in the police vehicle.
Petitioner was placed under arrest. The police then drove back to the automobile. One of the officers opened the door and saw a packet of glassine envelopes protruding halfway from between the back rest and front seat. The officer examined the envelopes and concluded that they contained heroin.
The purpose of opening the door to the automobile was to inventory its contents before having it towed away. According to the officers, the impounding of automobiles is standard procedure carried out subsequent to arrest except on traffic violations where an individual claims he can make bail.
As a general principle, automobile searches may not demand the same variety of probable cause required for a search of a home or other structure. Chambers v. Maroney, 399 U.S. 42, 48, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). See United States v. Squires, 456 F.2d 967 (2d Cir. 1972). There is, however, no "automobile exception" to the fourth amendment because some variety of probable cause in addition to exigent circumstances is still normally required for a warrantless search. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). Mobility of the vehicle is a normal justification for dispensing with a search warrant. See United States v. Day, 455 F.2d 454 (3d Cir. 1972); Castaldi v. United States, 453 F.2d 506 (7th Cir. 1971), cert. denied, 405 U.S. 992, 92 S. Ct. 1263, 31 L. Ed. 2d 460 (1972). We cannot, however, forget that "the word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge v. New Hampshire, supra, 403 U.S. at 461-462, 91 S. Ct. at 2035.
Turning now to the matter sub judice, we note first that the automobile was without a battery and therefore inoperable. The normal mobility justification is thus not present here. See United States ex rel. Johnson v. Johnson, 340 F. Supp. 1368 (E.D. Pa. 1972). Nor can the search be justified as incident to arrest. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); cf. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538 (1968). See generally Note, Chimel v. California, a Potential Roadblock to Vehicle Searches, 17 U.C.L.A.L. Rev. 626 (1970).
Respondent, however, argues that the search was a reasonable one because the officers here were following established police procedure designed to safeguard the automobile and its contents. It is also asserted that discovery of the drugs was inadvertent.
We conclude that a search did occur here, Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). The automobile was not forfeited by reason of the drug charge, Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967). Nor was the automobile itself evidence of a crime. Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). We therefore pass to the troublesome question of whether the ...