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State v. Cohen

Decided: May 19, 1977.


For modification and affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the court was delivered by Hughes, C.J. Pashman, J., concurring. Justice Schreiber joins in this opinion. Clifford, J., concurring in result. Judge Conford authorizes me to record his concurrence in this opinion. Clifford, J., and Conford, P.J.A.D., concurring in the result.


[73 NJ Page 333] On the petition of the State we certified this case, 71 N.J. 344 (1976), primarily because we were concerned with the basis on which the Appellate Division had affirmed (139 N.J. Super. 561 (1976)) a Law Division order suppressing evidence seized on a warrantless search of a motor vehicle. The Appellate Division, setting aside all other issues, approved the invalidation of the search upon the single ground that those police officers who conducted it were police of the Port Authority of New York and New Jersey and had no legal or jurisdictional authority to arrest at the particular place where it occurred. The former Port of New York Authority, now the Port Authority of New York and New Jersey, N.J.S.A. 32:1-4, L. 1972, c. 69, ยง 1 (hereafter "Authority"), was admitted as amicus curiae. It challenges the determination of the Appellate Division that the port authority police lacked territorial jurisdictional authority in the present case, because of limitations in the statute conferring jurisdiction.*fn1

While the gravamen of the questioned rulings concerns the jurisdictional matter, the intrinsic validity of the search and seizure, territorial jurisdiction apart, is also challenged.

On March 20, 1974, Corey Cohen was arrested while driving his van on the George Washington Bridge, an Authority facility. The arresting officer was Authority police officer Richard Murphy, who charged Cohen with two offenses, possession of more than 25 grams of marijuana in violation of N.J.S.A. 24:21-20 subd. a(4), and operating his van while his license was revoked, in violation of the motor vehicle statutes. Cohen was released on bail and his vehicle was impounded. It remained briefly on Authority property and was later removed for storage to a garage in Fort Lee, New Jersey. Fort Lee is outside the "bridge" area of the Authority but is wholly within the "Port District" delineated by N.J.S.A. 32:1-3, which includes all or part of nine New Jersey counties, as well as all or part of several counties in New York. The garage proprietor was advised to notify the Authority police when Cohen sought to retrieve his van.

A Bergen County Grand Jury promptly indicted Cohen and he was haled to court on April 26, 1974, but did not appear. A bench warrant was issued for his arrest, but upon his appearance for arraignment on May 31, 1974, the court withdrew or "cancelled" the warrant and restored him to bail.*fn2

On June 11, 1974, Cohen called the garage owner to arrange to retrieve his vehicle, and the owner advised Officer

Murphy, requesting instruction as to whether to release the van. Murphy reviewed his "arrest file" which did not show the intervening invalidation of the bench warrant. Believing it still in effect, he consulted his superiors and was ordered, along with a fellow officer, Sergeant Garcia, to apprehend Cohen at the Fort Lee garage.

On arrival there he learned from a phone call which Cohen made while en route to the garage that Cohen was preparing to depart the state as soon as he obtained his van. Cohen eventually arrived at the garage, as a passenger in another vehicle occupied by two companions, Pate and Cooperman, Pate being the driver. Cohen entered the garage office and was arrested because he was unable to convince the officers that the bench warrant had been withdrawn.

After a few minutes Cooperman entered the garage office and he too was detained. Pate had remained in the driver's seat of the vehicle, and Garcia and Murphy approached it warily from opposite sides. After a sequence of events about which there is sharp factual dispute, the officers, noting the odor of marijuana fumes, searched the vehicle. They discovered a tin containing marijuana and a pipe filled with marijuana, still smoking, in the ash tray. The officers then placed Pate, Cooperman and Cohen under arrest for possession of that marijuana.

The motion to suppress evidence was brought before the court pending the presentation of this alleged later offense to the grand jury.

With regard to the dispute over what occurred immediately before the search, the motion judge accepted the version of the police officers as true, as shall we (with one important exception which we shall discuss after examining the jurisdictional question involved):

[W]hen Cohen entered the office, he was placed under arrest and when one of the officers walked over to the van, a door was open; marijuana was smelled and a quantity of marijuana was found concealed in the van. The officer testified that upon smelling the marijuana

he placed the other two defendants under arrest and made a search incident to such arrest.


It would seem appropriate to deal first with the principal basis upon which both decisions below were predicated, namely, that under the statute footnoted above the powers of Authority police officers, no matter their inherent scope, may be exercised only within the narrow geographical ambit of the "bridge," "tunnel," "plaza," or "approach" facilities mentioned therein.

One would be inclined to pause at the threshold to question this narrow supposition for several reasons, not the least being the broad scope of the statutory language itself:

In addition, the members of such police force shall have all the powers conferred by law on police officers or constables in the enforcement of laws of this state and the apprehension of violators thereof. [ N.J.S.A. 32:2-25].

But the courts whose actions we review sensed a relationship between this clause and the sentence which preceded it. The motion judge held:

The Port Authority police had absolutely no authority to pursue the course of conduct that was followed by them on June 11, 1974. N.J.S.A. 32:2-25 * * * states the ambit of the Port Authority police's power. The legislature gave the police express authority to act in the same capacity as any other police ...

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