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State v. Porte

Decided: March 5, 1973.


For reversal -- Chief Justice Weintraub, Justices Jacobs, Hall, and Judges Sullivan and Lewis. For affirmance -- Justice Mountain and Judge Conford. The opinion of the Court was delivered by Sullivan, P.J.A.D., Temporarily Assigned.


[62 NJ Page 314] Following a jury trial, defendant was convicted of the armed robbery of David W. Leuice, an employee of the American Finance Corporation in Belleville. On appeal the Appellate Division, although it found overwhelming evidence of defendant's guilt of such charge, reversed his conviction on the ground that "the jurors could not avoid being prejudiced" by the improper disclosure during trial that (1) defendant was wanted for a holdup and robbery in Roselle Park, and (2) defendant had been arrested for the crime of embezzlement from a former employer. We granted the State's petition for certification, 62 N.J. 68 (1972). We also granted defendant's cross-petition for certification to review his contention, rejected by the trial court and the Appellate Division, that the warrantless search of his car and seizure of evidence therefrom was in violation of defendant's constitutional rights.

On September 4, 1970, the American Finance Corporation's branch office on Washington Avenue, Belleville, was held up by a lone gunman carrying a briefcase. There were two employees in the office at the time, David W. Leuice and Elizabeth Olejnik. Leuice recognized the man as having been there the night before inquiring about a loan. The man remained in the office about fifteen minutes during the course of the robbery. After he left, the police were called and given a detailed description of him and his attire, which included dark sunglasses. The get-away vehicle was described as a 1967-1970 car, dark blue with a black top, possibly an Oldsmobile or General Motors' make. The weapon used during the robbery was described as a .38 caliber revolver.

The Belleville police had little immediate success in solving the robbery. The two employees were shown several hundred photographs at the Essex County Bureau of Identification, but were unable to make an identification.

The case was broken on September 30, 1970 as the result of a police teletype from Roselle Park that one Anthony John LaPorte was wanted there for a holdup and robbery, and to be on the lookout for his car which was described as a 1970 two-door blue Pontiac, license KRU400. The teletype was received at about 5:00 P.M. At about 11:30 P.M. the car was located parked in front of 31 Honiss Street, in Belleville. Two detectives from the Belleville Police Department, together with two police officers from Roselle Park who had a warrant for defendant's arrest for armed robbery, went to the address, found defendant there and placed him under arrest. His car was impounded and towed to police headquarters where it was searched and a .38 caliber revolver was found in the glove compartment. Also recovered from the back seat and floor of the car were a pair of sunglasses and a briefcase, as well as items related to the Roselle Park holdup. After the arrest, one of the Belleville detectives noticed the resemblance of LaPorte to the description of the robber in the American Finance holdup. David Leuice was reached by telephone and came to police headquarters.

There he "instantaneously" recognized LaPorte as the man who had committed the American Finance robbery.

At trial both Leuice and Olejnik positively identified defendant as the robber. Leuice also identified pictures of defendant's car as similar to the get-away vehicle. He also identified the revolver and briefcase found in defendant's car, and a holster and jacket found in defendant's apartment, as the items worn or used by the robber at the time the holdup was committed. Without detailing all the incriminating evidence, we are satisfied that the proofs of defendant's guilt are convincing.

We first consider defendant's contention, raised on a motion to suppress, that the warrantless search of his automobile at police headquarters following his arrest was illegal. We find this contention to lack merit. The search was not in connection with the American Finance holdup, but rather grew out of defendant's arrest on a charge of armed robbery committed in Roselle Park. The police had the right to seize defendant's automobile since it had been reported as an instrumentality used in the robbery. The search of it was clearly justified since the officers had probable cause to believe that it contained evidence of the Roselle Park armed robbery (as it actually did). Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). The vehicle was mobile. See State v. Smith, 113 N.J. Super. 120 (App. Div.), certif. den. 59 N.J. 293 (1971). Had the police not seized it it might have been moved and whatever evidence it contained lost. (Defendant testified that his ex-wife had a duplicate key to the car and drove it quite a bit.) Since the police had probable cause to search defendant's automobile, and the circumstances were such that it was not practicable to secure a warrant, their actions in seizing the vehicle, bringing it to police headquarters and searching it there, were not unreasonable. As stated in Chambers, supra, 399 U.S. at 52, 90 S. Ct. at 1981, 26 L. Ed. 2d at 428, for constitutional purposes there is "no difference between

on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment."

Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), relied on by defendant, cannot be interpreted as a modification of Chambers, supra. There is no majority opinion in Coolidge so holding. Moreover, the plurality opinion of the court stressed the fact that the vehicle searched was regularly parked in the driveway of the Coolidge home plainly visible from the street, and that the police had known for some time of the probable role of the car in the crime they were investigating. The opinion stated that by no possible stretch of the legal imagination could the situation be made into a case where it was not practical to secure a warrant. Here, on the other hand, the police, late at night, had just come upon defendant's parked car, a mobile vehicle. Based on the teletype they had received, there was a necessity for immediate action.

We next consider the alleged improper disclosure to the jury that defendant was wanted by the police of a neighboring community for armed robbery.*fn1 The disclosure came about during the testimony of Detective Falcone of the Belleville Police Department. The transcript of his ...

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