Troast, J.d.c., Temporarily Assigned.
This is an amplification of an oral opinion rendered on a motion to suppress evidence under the "fruit of the poisonous tree" doctrine. Wong Sun v. United States , 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Nardone v. United States , 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939). Movant contends that the fruits of an initial warrantless search resulted in the three subsequent searches involved in this case and that notwithstanding the issuance of search warrants prior to those searches, all the evidence seized must be suppressed. Cf. State v. Roccasecca , 130 N.J. Super. 585 (Law Div. 1974); see also, Annotation, "Fruit of Poisonous Tree," 43 A.L.R. 3d 385.
The facts are that Sergeant William J. Smith of the Saddle River police department was on routine patrol at about 10 p.m. on May 12, 1976 when he observed what he considered a suspicious motor vehicle parked on Old Woods Road. The vehicle was legally parked and there was no basis for believing that there had been any violation of the law at that time. He proceeded to investigate and observed that the key was in the ignition of the vehicle. The vehicle was not locked and the officer proceeded to search the interior by entering the vehicle and opening the glove compartment. In the glove compartment he found a wallet containing $135 in cash, movant's driver's license and a college identification card
with movant's photograph. The officer removed the key case containing the ignition key and several other keys and the wallet containing the $135 and the identification card.
Sergeant Smith had returned to his patrol car when he received a call over the police radio advising that a burglar alarm had sounded at the Dukes residence on Winding Way in Saddle River. As a result of the radio alarm Smith proceeded to the Dukes residence which was about two tenths of a mile away. At the Dukes residence he found evidence of a breaking and entry, and an investigation of that crime led the police back toward movant's vehicle. Further investigation revealed that certain items of personal property taken from the Dukes residence were in bushes near movant's vehicle. Thereafter at about 1:20 a.m. the police observed a suspicious motor vehicle passing movant's vehicle at a slow speed. The police caused the suspicious vehicle to be stopped in an adjacent municipality, and using the identification card seized from movant's vehicle one of the occupants of the suspicious vehicle was identified as movant.
After movant's arrest and the impounding of his vehicle a search warrant providing for a further search of his vehicle was issued, and a search of the trunk revealed a screw driver, a crow bar and surgical gloves. Subsequent search warrants provided for a search of movant's home.
The court has granted movant's application to suppress the evidence seized as a result of the initial warrantless search of movant's motor vehicle. Coolidge v. New Hampshire , 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). In the present case there was no violation of the motor vehicle and traffic regulations and no other reason was given for the search of the lawfully parked vehicle. Movant's vehicle had not been impounded and there is no evidence that Smith intended to take the vehicle into police custody. Cf. South Dakota v. Opperman , 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). However, movant seeks to suppress all evidence, arguing that the evidence seized after issuance of the search warrants was based in part on information
obtained as a result of the unlawful search. In the absence of decisions of appellate courts in New Jersey, decisions in the federal courts are persuasive. State v. Chance , 71 N.J. Super. 77, 79 (Cty. Ct. 1961). In James v. United States , 135 U.S. App. D.C. 314, 418 F.2d 1150 (1969), it was noted that the United States Supreme Court has not had occasion to consider the issue of whether the "fruit of the poisonous tree doctrine" is applicable to a search warrant that issues on the basis of information both lawfully and unlawfully obtained. In James , a police officer, while looking through a garage door which was partially opened, observed a completely stripped car. The officer entered the garage, copied the rear license plate of the car and conducted a search which disclosed an owner's manual. A check at police headquarters revealed that the vehicle had been stolen. The officer thereafter applied for a search warrant. In holding that the District Court had properly suppressed the rear license plate and owner's manual but properly admitted in evidence items seized after the issuance of the warrant, the Court of Appeals said:
When an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue. Wong Sun v. United States , in announcing the "fruit of the poisonous tree" doctrine, limited the exclusionary rule to evidence which the police could not trace to some "independent" and lawful source. While the Supreme Court has not specifically had occasion to consider whether this doctrine is applicable to a search warrant that issues on the basis of an affidavit setting forth information both lawfully and unlawfully obtained, other circuits have applied the "independent source" test. If the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is admitted. [at 1151]
Similarly in United States v. Sterling , 369 F.2d 799 (3 Cir. 1966), a government agent was investigating an individual who had a previous record of violating the liquor laws. From a ...