This is a motion to suppress evidence seized as a result of an inventory of an automobile conducted by a police officer on August 17, 1972. As a result of said inventory the officer discovered a paper containing green vegetation on the floor between the console and passenger bucket seat. Defendants were charged with possession of marijuana (less than 25 grams), contrary to N.J.S.A. 24:21-20(a)(3). After the arrest defendants' persons were searched and two plastic bags containing green vegetation were discovered in the purse of defendant Jones. A search of the trunk disclosed a pipe with marijuana residue.
The facts are undisputed: At approximately midnight on August 17, 1972 Patrolman Adcock observed an automobile being driven in a westerly direction on Route 46 in the Borough of Hasbrouck Heights. His attention was attracted to the vehicle by its studded snow tires and an inspection sticker indicating that it had failed inspection. Patrolman
Adcock signaled the driver of the vehicle to pull over to the side of the highway, and after inspecting the operator's license and registration informed the driver and his passenger, defendants in this case, that he was impounding the automobile because he considered it unsafe and because of the studded snow tires. At that time Patrolman Adcock conducted an inventory of the vehicle as part of the policy of the Bergen County Police Department. In the course of the inventory he discovered marijuana between the console and the passenger bucket seat. Defendants were then arrested. They contend that the search and seizure in this case were illegal and violative of their constitutional rights. They contend that the officer had no right under New Jersey law, and the facts here present, to impound the car, and that with no right to impound there was no right to enter the vehicle for the purpose of an inventory. Defendants further contend that even if there were a right to impound and a concurrent right to inventory, that right was limited to inventory and did not encompass the right to search between the console and the seat.
The determination of whether a "search" has been made is prerequisite to the determination of whether an unlawful search and seizure has taken place. A search is a search and cannot be anything different simply because the police officer conducting the same chooses to characterize it as an "inventory." It is well settled in New Jersey that the term "search" necessarily implies some exploratory investigation and is predicated upon the fact of physical entry into the automobile. State v. Griffin , 84 N.J. Super. 508 (App. Div. 1964); State v. Lowry , 95 N.J. Super. 307 (App. Div. 1967); In re Estate of Shivers , 105 N.J. Super. 238 (App. Div. 1969); State v. Bell , 55 N.J. 239 (1969). In the present case Patrolman Adcock's physical entry into the automobile, coupled with his exploratory investigation of the same, is readily conclusive of the fact that a search had been made.
Since the search of the automobile was associated with the impounding of the vehicle, the validity of the search depends upon the legitimacy of the impounding. Patrolman Adcock testified that he determined that the automobile should be impounded because the vehicle was fitted with studded snow tires in violation of N.J.S.A. 39:3-81, was in poor general condition, and did not bear a current inspection certificate of approval.
If there was a right to impound the vehicle, then the right to enter the vehicle for the purpose of an inventory is a concurrent right which must exist for the protection of the property rights of the defendant to those chattels then in the vehicle, as well as for the protection of the officer and the persons who tow the vehicle and who take and keep custody of it. Thus, it is necessary to determine if the right to impound a vehicle for a violation of the Motor Vehicle Law exists.
An examination of N.J.S.A. 39:8-9 and other pertinent sections of the Motor Vehicle Act requires the conclusion that the impounding of the automobile driven by defendant Richard Buist was without statutory authority. N.J.S.A. 39:3-81, which prohibits the operating of a motor vehicle in August with studded tires, expressly provides for a fine to be paid by any person violating the statute:
When used on a state highway, no motor vehicle tire shall be fitted with any blocks, hobs, studs or other projections and no wheel shall be locked so as not to revolve. A person violating this section shall be liable to a fine of not less than ten nor more than twenty dollars for each offense together with the costs of prosecution, to be recovered at an action at law in the name of the state, before a court of competent jurisdiction by the state highway department. The fine shall be paid into the state treasury to the credit of the funds available for the construction, maintenance and repair of roads.
The above-quoted statute provides as penalty for a violation thereof the imposition of a fine only, and then not in excess of $20. Fines are imposed by a court, however, and we are here concerned with the authority of a police officer
in the performance of his duties. N.J.S.A. 39:5-25 authorizes a police officer to arrest without warrant any person who violates any provision of Chapter 3 of Title 39 in the officer's presence, or the officer may serve a summons upon such violator. No arrest was made for the motor vehicle violation; in fact, the testimony was clear that no arrest was made until after the discovery of the marijuana. But even if there had been an arrest, the statute permits detention only for such length of time necessary for the arresting officer to make a complaint and obtain an arrest warrant. This statute has, however, been held to be supplanted by R. 7:6-1 et seq. (formerly R.R. 8:10-1 et seq.). See Winberry v. Salisbury , 5 N.J. 240 (1950); State v. Nimmo , 11 N.J. Super. 606 (Cty. Ct. 1951); State v. Ahrens , 25 N.J. Super. 201 (App. Div. 1953).
R. 7:6-1 provides that for motor vehicle violations "the complaint and summons shall be a uniform traffic ticket in the form prescribed * * *" (Emphasis supplied). The Administrative Director of the Courts has prescribed such complaint and summons (Municipal Court Bulletin III, May 1965). Thus, although in this case there was no arrest made for the violation of N.J.S.A. 39:3-81 or N.J.S.A. 39:8-9, there was no authority to make such arrest. The mandate of R. 7:6-1 is the issuance of a uniform summons and complaint.
There was no power to arrest for a violation of N.J.S.A. 39:3-81. Likewise, there is no power of arrest for a violation of N.J.S.A. 39:8-9. There is no dispute that the vehicle had failed to pass inspection. The owner of the vehicle, Audrey Buist, mother of defendant Richard Buist, was required to make repairs to the vehicle. N.J.S.A. 39:8-4. The Director of Motor Vehicles has the power to revoke the registration of the vehicle for her failure to make such repairs. N.J.S.A. 39:8-7. The courts may assess a fine of not more than $100 against Audrey Buist or imprison her for 30 days. N.J.S.A. 39:8-9. But nowhere in Title 39 is there a provision which authorizes a complaint
or penalty against the operator of an inspected or unapproved vehicle who is not the owner thereof. Indeed, the only reference to operator in Chapter 8 is contained in N.J.S.A. 39:8-6 which requires an operator to display an official certificate of approval. There is no penalty provided against an operator who fails to display such certificate.
Thus, defendant Richard Buist could not be arrested for operating a vehicle in violation of N.J.S.A. 39:3-81; only a summons and complaint could be issued to him. He could not be arrested or served with a summons and complaint for violation of N.J.S.A. 39:8-9. Since this is true of defendant Richard Buist, a fortiori it is true of defendant Cathleen Jones.
With no right to arrest and, in fact, without an arrest, the search cannot be sustained as incident to a valid arrest.
The Legislature has provided for the seizure of motor vehicles in certain circumstances. N.J.S.A. 24:21-35 authorizes a police officer to seize a vehicle which is used in the transportation of dangerous substances in violation of the narcotics laws, and N.J.S.A. 33:1-66 authorizes a police officer to seize a motor vehicle where he has reasonable cause to believe that it contains illicit alcoholic beverages.
An examination of Title 39 reveals that there are four sections which do authorize the seizure of motor vehicles operated over the highways of this State.
None of these sections is applicable to the facts of this case, and the State does not urge their application. However, we will briefly consider them. N.J.S.A. 39:5-47 provides:
The commissioner may authorize the seizure of a motor vehicle operated over the highways of this state when he has reason to believe that the motor vehicle has been stolen or is otherwise being operated under suspicious circumstances and may retain it in the name of the department until such time as the identity of ownership is established, whereupon he shall order the release of the motor vehicle to its owner.
It is clear that this statute does not apply to the facts of this case. At no time did Patrolman Adcock testify that he had suspicions concerning the ownership of the automobile driven by defendant Buist, or that defendant was operating the automobile "under suspicious circumstances." He was aware from the registration certificate produced that the ownership of the vehicle was in the name of defendant's mother, Mrs. Audrey Buist. The seizure of the vehicle, Patrolman Adcock testified, was related to the physical condition of the vehicle.
N.J.S.A. 39:3-4 authorizes a motor vehicle inspector or police officer to remove any unregistered vehicle from the public highway. N.J.S.A. 39:10-6 allows for the seizure of a motor vehicle for failure to produce a certificate of ownership or registration. N.J.S.A. 39:10-21 allows the Commissioner to seize a motor vehicle if the dealer who has possession of same is unable to produce a certificate of origin or a certificate of ownership.
N.J.S.A. 39:8-7 provides for the revocation of the registration of a motor vehicle registered in this State and operated on the highways of this State which (a) does not display a current certificate of approval and (b) is shown by the inspection to be incapable of being placed in a proper condition to make its use safe on the highway. N.J.S.A. 39:8-9 provides for the imposition of a fixed fine on any person who is guilty of violating the provisions of Chapter 8 of the Motor Vehicle Act. However, nowhere in Chapter 8 is authority granted to impound a motor vehicle which is violating the law.
The impounding of the automobile has thus been seen not to have been incident to an arrest and not to have been authorized by any statutory provisions of the ...