Lynch, Bischoff and Kole.
[156 NJSuper Page 350] Defendant appeals from his conviction for possession of a controlled dangerous substance (heroin) with intent to distribute contrary to N.J.S.A. 24:21-19a(1).*fn1
Prior to trial defendant had moved to suppress certain evidence seized from a car owned by the mother of his codefendant, William J. Super, and in which defendant was a passenger. Also defendant sought to suppress evidence seized from his person after the vehicle had been stopped by police. The motion was denied. The propriety of said denial is the sole issue on appeal.
On July 18, 1975, at about 5:00 a.m., Newark Police Sergeant Raymond McGuinness and Patrolman Daniel Helber were on routine patrol, traveling east on 14th Avenue in their squad car. While passing through the intersection of 14th Avenue and Bergen Street the officers noticed a white, 1966 Chevrolet come to an "erratic stop" at the light on Bergen Street with a "loud screech of brakes." The officers then made a "U-turn" and noticed that the vehicle had turned onto 14th Avenue, traveling eastward in the westbound lane.
At this point they stopped the vehicle and Patrolman Helber asked the driver, William Super, to produce his license, registration and insurance card. Sergeant McGuinness stood near the rear of the car. The registration showed that the car belonged to Super's mother. A "routine check" of the license plate number and Super's driver's license revealed that Super was "wanted on a bench warrant." Super was then arrested and asked the officers if defendant McDaniel could take the car. However, the officers decided "to take the whole thing down to the Precinct" and defendant "requested to go along to take the vehicle."
It was decided that Sergeant McGuinness would drive Super and defendant to the precinct station in the squad car and that Patrolman Helber would drive Super's car. "For protection" Helber frisked both men and discovered a "bulge" in defendant's left trouser pocket. Defendant pulled the object from his pocket at the request of Patrolman
Helber and it appeared to be a ball of "tissue paper" containing nine, empty glassine envelopes. Defendant explained that his sister found the envelopes somewhere and he had taken them from her. Although defendant had not been arrested at this point, "[a]fter finding the glassine bags [the officers] brought him down [to the precinct] so that [they] could further check him" and release the car to him. Sergeant McGuinness noted that he could have released the car to defendant on the spot, but decided to bring the car down to the station "rather than tie up the air."
After the vehicles were brought to the precinct Patrolman Helber and another "went out to make a search of the car * * * for valuables or any contraband * * *." Helber explained further that the search was "partially for valuables" because the officers did not want to be held liable for any personal property which the car might have contained. During the course of the search the officers discovered 47 glassine bags of heroin wedged behind the back of the front seat. None was visible upon a "plain view" of the interior of the car. After the contraband was found, the officers left the vehicle and placed Super and defendant under arrest. At trial they discovered bags of heroin and the empty glassine envelopes were introduced into evidence.
The theory advanced by the State below, and that relied upon by the trial judge in denying defendant's suppression motion, was that the search and seizure at issue were undertaken pursuant to a "routine check or inventory" and thus were not violative of defendant's Fourth Amendment rights.*fn2 The State on appeal advances an alternative justification, as well: i.e. , the search and seizure were justified by "probable cause" and "exigent circumstances."
Implicit in the trial judge's holding herein are two "findings," each representing a mixed question of law and fact: (a) the officers were justified in impounding the vehicle in which defendant was a passenger and (b) the subsequent "search" was not a "pretext concealing an investigatory police motive." South Dakota v. Opperman , 428 U.S. 364, 376, 96 S. Ct. 3092, 3100, 49 L. Ed. 2d 1000 (1976). In Opperman Chief Justice Burger, expressing the view of five members of the court, upheld the inventory of a vehicle lawfully impounded by police for violations of municipal parking ordinances. The inventory, undertaken pursuant to "standard police procedures," revealed a bag of marijuana located in the glove compartment.
Justice Burger, after noting that the police are often justified in taking custody of vehicles "[i]n the interests of public safety," declared that an inventory of such vehicles is also justified in order to protect the owner's property, to protect the police against claims over lost or stolen property and to protect the police from "potential danger." 428 U.S. at 368-369, 96 S. Ct. 3092. He stated that "this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents." Id. at 373, 96 S. Ct. at 3098.
And, in relating the rule to the facts in that case, he declared:
The Vermillion police were indisputably engaged in a caretaking search of a lawfully impounded automobile. Cf. United States v. Lawson, 487 F.2d 468, 471 (CA8 1973). The inventory was conducted only after the car had been impounded for multiple parking violations. The owner, having left his car illegally parked for an extended period, and thus subject to impoundment, was not present to make other arrangements for the safekeeping of his belongings. The inventory itself ...