Halpern, Larner and King. King, J.A.D.
We granted the State's motion for leave to appeal from the trial court's ruling in favor of defendant's motion to suppress a sawed-off shotgun as evidence in this criminal prosecution. The trial judge found the shotgun was seized by the police following "a fishing expedition not based upon reasonable cause." We agree and affirm.
Defendant was indicted for possession of a sawed-off shotgun, in violation of N.J.S.A. 2A:151-41. The following circumstances led to the discovery of the gun by the police. On July 10, 1976, at about noon, Officer Mager of the Maplewood Police was dispatched to investigate a bank robbery in progress. He received radio information that two male suspects were identified leaving the scene in a blue and white vehicle. En route to the scene he spotted and stopped a vehicle occupied by two suspects fitting the radio descriptions. He asked the suspects to step out and the passenger Valentine admitted they robbed the bank. Defendant driver Parker was patted down and arrested. The vehicle was towed from the scene to the police garage, searched and inventoried pursuant to standard departmental procedure. Several personal items, including sun glasses, a belt, a hat, a jacket and a watch were found inside the automobile. An inoperable .45-calibre handgun replica with a plugged barrel was also removed from the interior of the car. During the inventory search the police could not gain entry into the locked trunk or glove compartment because no key was available.
The car was owned by defendant's mother, Elaine Parker. Concerned about her son's arrest, she went to police headquarters later that day. She was told her car was impounded and could not be released. On July 15 she secured a written release of the car from the prosecutor's office and returned to police headquarters to obtain her vehicle. She signed an impound release sheet at police headquarters. Detective DeJohn stated that the only formalities for release remaining after she signed the impound release sheet were to settle the towing bill and give Mrs. Parker the keys. DeJohn took Mrs. Parker to the service station to settle the towing bill and thereafter to her apartment to obtain the keys because the police could not locate the defendant's keys.
On returning to the police garage DeJohn asked permission to search the trunk and glove compartment "for her protection" since the police could not gain entry previously. DeJohn wanted to be sure Mrs. Parker could not be blamed for transporting contraband. Mrs. Parker agreed to allow the police to open the trunk. She said she felt "more or less" compelled to open the trunk because "if I didn't they would hold my car." DeJohn opened the trunk and observed two satchels. Both bore tags with defendant's name. DeJohn then unzipped one of the closed satchels, without asking permission. He found the sawed-off shotgun inside a plastic bag in the satchel.
The police investigation of the bank robbery had disclosed no use of firearms. The police had no knowledge of any shotgun throughout their investigation of the crime. DeJohn agreed under cross-examination that he went into the trunk on a fishing expedition for anything he might find in the way of contraband and "also to protect the owner of the vehicle as I explained to her."
The State seeks to justify the search of the satchel on several grounds, i.e. , (1) an inventory search, (2) a search pursuant to exigent circumstances for an instrument of the crime, and (3) a consent search. Evidence obtained
during a standard police inventory search is clearly admissible in a criminal proceeding. South Dakota v. Opperman , 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); State v. Slockblower , 145 N.J. Super. 480 (App. Div. 1976), certif. granted 74 N.J. 255 (1977). See also, Cooper v. California , 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967). The search of the satchel by Detective DeJohn does not fall within the inventory search exception. The inventory search was conducted and completed on the day of the arrest. The car remained in the police garage for five days. The vehicle was then released by the prosecutor and Mrs. Parker signed the police impound release sheet. She paid the towing bill and was ready to drive away when the request for a further search was made by DeJohn. The police had not thought it necessary to search the trunk or glove compartment during the five days the vehicle was in custody prior to its release, either for an inventory or any other reason. In Cooper v. California, supra , the United States Supreme Court upheld a warrantless search of a vehicle impounded for forfeiture proceedings. The search was conducted one week after seizure but several months before forfeiture. In Cooper the vehicle had not been released to the owner but was in the police garage under impoundment awaiting the forfeiture proceeding when the search was undertaken. Cooper does not control the situation before us.
The actual conduct of the police in this case belies the State's contention that the search of the satchel was justified because of exigent circumstances and to secure instruments of the crime. The police found no reason to search the glove compartment or the trunk during the impoundment, either for weapons, evidence or the fruits of the crime. When the search was conducted after the vehicle was released to the owner, it was undertaken for the alleged protection of Mrs. Parker and for general exploratory purposes, -- not in connection with the pending criminal charge against defendant Parker. State v. McCarthy , 130 N.J. Super. 540
(App. Div. 1974), relied upon by the State, is distinguishable. In McCarthy the police returned to defendant's car following defendant's arrest, but on the same day. They searched the trunk for evidence of the crime with which defendant had been charged when arrested. The search in McCarthy was conducted in a public parking area, on the day of arrest, at the scene of the arrest, and before the vehicle was impounded. The State here admits there was no reason to believe contraband was present at the time DeJohn opened the trunk and searched the satchel and that any warrantless search required by exigent circumstances could have been made at the scene of the arrest or in the police garage after the vehicle was impounded. See Texas v. White , 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed. 2d 209 ...