On appeal from the Superior Court of New Jersey, Law Division, Union County.
Fritz, Botter and Ard. The opinion of the court was delivered by Ard, J.A.D.
On leave granted, the State appeals from an order granting a motion of James Walton to suppress certain evidence seized without a warrant from the rear of defendant's motor vehicle. After the seizure defendant and another were indicted on various charges of breaking and entering with intent to steal, larceny, possession of burglary tools and receiving stolen property.
The evidence before the trial court consisted of the testimony of a police officer and that of defendant. Much of what occurred is not disputed, and where the testimony varied the trial judge "believed every word that the detective said" and found defendant's testimony to be entirely "incredible and unbelievable." However, the judge determined that the police officers arrested defendant and another for
failure to give a good account of themselves without giving them an opportunity to explain the circumstances of their presence at the time of their arrest. He concluded that this was a fatal defect in the arrest, citing State v. Zito , 54 N.J. 206, 218 (1969), and therefore any search incidental to this arrest was illegal. We disagree.
It is axiomatic that all searches without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant and the burden is upon the State to show that the search comes within an exception. Coolidge v. New Hampshire , 403 U.S. 443, 468 (1971), reh. den. 404 U.S. 874, 90 S. Ct. 26, 30 L. Ed. 2d 120 (1971); Stoner v. California , 376 U.S. 483, 486, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964); United States v. Jeffers , 342 U.S. 48, 51, 72 S. Ct. 93, 96 L. Ed. 59 (1951); State v. Whittington , 142 N.J. Super. 45, 51-52 (App. Div. 1976); State v. Brown , 132 N.J. Super. 180, 185 (App. Div. 1975); State v. Hannah , 125 N.J. Super. 290, 294 (App. Div. 1973), certif. den. 64 N.J. 499 (1974).
Although the failure to give defendant and his companion an opportunity to explain the circumstances of their presence makes the validity of their arrest under N.J.S.A. 2A:170-1 questionable, the subsequent seizure of the goods in question was not incidental to that arrest but the result of their being found in "plain view." Seizable items which inadvertently come into the view of an officer who has a right to be where he is, may be retained and used in prosecution of the crime to which they relate. Coolidge v. New Hampshire, supra; Harris v. United States , 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); United States v. Lee , 274 U.S. 559, 47 S. Ct. 746, 71 L. Ed. 1202 (1927); State v. Waltz , 61 N.J. 83, 88 (1972). We are satisfied that the items sought to be suppressed were in plain view of the police officers and the owner who had a right to be in the position to have that view and were therefore legally seized.
It is uncontroverted that on February 26, 1975 two Mountainside police officers were dispatched to the parking lot of the Echo Lanes Bowling Alley, having "received a call from one of our patrol units regarding a suspicious vehicle traveling in the parking lot." Upon arriving at the parking lot the officers parked in a row of vehicles and observed a car with the same license plates as described in the dispatching message. It contained defendant and another and was traveling very slowly up and down the rows of cars ignoring open parking slots.
Detective Semancik, at times referring to a diagram of the area, testified to the following:
We observed the vehicle traveling very slowly up this alleyway here between cars, continuing up to the area, headed towards us. The vehicle then made a left turn down this row of vehicles and proceeded to come ...