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State v. McCarthy

Decided: April 6, 1973.

STATE OF NEW JERSEY, PLAINTIFF,
v.
JAMES J. MCCARTHY, JR., DEFENDANT



Antell, J.c.c.

Antell

[123 NJSuper Page 515] On this motion to suppress the results of a Breathalyzer test in a drunken driving prosecution, N.J.S.A. 39:4-50, the defendant's claim of invalidity rests upon the assertion that his prior arrest without a warrant was illegal because performed by a police officer who was then acting outside the territorial limits of the municipality where he held his appointment and where the offense occurred.

Because of the state-wide significance of the question presented -- which has not been previously decided by a New Jersey court -- and in the interest of achieving uniformity in the administration of pertinent legal principles, the Attorney General of New Jersey has filed a brief amicus curiae.

Officer Fichter, of the Cedar Grove Police Department, saw defendant pass a red light on Bradford Avenue at its intersection with Ridge Road. The officer followed him west on Bradford Avenue to a red light on Pompton Avenue, where they stopped. Along the way he observed the defendant cross back and forth for no apparent reason over the double yellow lines on the surface of the roadway. The car continued to Grove Avenue where it turned left toward Verona and again crossed the double yellow lines on the surface of that highway. The events so far recounted occurred within the limits of Cedar Grove. Near the Verona-Cedar Grove line the officer turned on his dome light and siren and pursued defendant for about a mile to Ann Street in Verona. There defendant stopped and was interrogated. His appearance, breath odor, conduct and manner of performing coordination tests led the officer to suspect alcoholic intoxication, and defendant was thereupon arrested and returned to Cedar Grove where the Breathalyzer test was taken.

The reason given by the officer for not acting sooner was that he elected to observe further the manner in which defendant was driving.

In State v. Harbatuk , 95 N.J. Super. 54 (App. Div. 1967), the precise question was raised in an identical context, but the appeal was decided on other grounds. The opinion leaves no doubt, however, that the breath test taken pursuant to N.J.S.A. 39:4-50.2 and 50.3 constitutes a search of the person, and its validity depends upon the lawfulness of the preceding arrest. (At 59). See also, State v. Swiderski , 94 N.J. Super. 14, 24 (App. Div. 1967).

That the official powers of a municipal police officer are ordinarily viable only within the territorial limits of the municipality which he serves is made plain by N.J.S.A. 40A:14-152, which creates these powers in the following language:

The members and officers of a police department and force, within the territorial limits of the municipality, shall have all the powers of peace officers and upon view may apprehend and arrest any disorderly person or any person committing a breach of the peace. Said members and officers shall have the power to serve and execute process issuing out of the courts having local criminal jurisdiction in the municipality and shall have the powers of a constable in all matters other than in civil causes arising in such courts.

Also see, 5 Am. Jur. 2d, Arrest , § 50 at 742; 62 C.J.S. Municipal Corporations § 574 at 1108; 6 C.J.S. Arrest § 12 at 610.

But the policeman's power to arrest without a warrant is by no means invariably confined by the "territorial limits" condition. In addition to his official powers, he may also exercise those which he enjoys in common with any private citizen. 5 Am. Jur. 2d Arrest , § 50 at 742. At common law a citizen could arrest without a warrant only where a felony was provable. Brown v. State , 62 N.J.L. 666, 695 (E. & A. 1898), aff'd 175 U.S. 172, 20 S. Ct. 77, 44 L. Ed. 119 (1899). N.J.S.A. 2A:169-3 has broadened this. This statute, extant since 1898 (L. 1898, c. 239, § 36, p. 953), allows any person to

The only limitation of this provision is that the arrestee be taken before " any magistrate of the county where apprehended" (emphasis added), obviously contemplating that arrests would be made in counties and in municipalities other than where the offense occurred. Since the ...


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