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State v. Marsh

Decided: August 14, 1978.


Brody, J.c.c. (temporarily assigned).


Exigent circumstances usually excuse the failure to obtain a search warrant. But what of the case where police have probable cause and are able to predict the exigency well in advance of their warrantless search? These motions to suppress require dealing with some of the problems raised by that question.

On July 6, 1977 at 10 A.M. Elizabeth Desk Sergeant Leonard Giacalone received an anonymous telephone tip describing a theft in progress. The caller claimed to be watching warehouse employees unlawfully removing cartons of shoes from the building and loading them into a private van parked in the warehouse lot. He described the van as a tan vehicle bearing New York license plate number 638-7AY and stated that the loaded van would be driven out of the lot at about 3 P.M. that day. Then, advising Giacalone not to trace the call or he would "blow the whole thing," the caller hung up.

When the call came in, Detective Warren White and his partner were patrolling the neighborhood of the warehouse in an unmarked car available, according to White's testimony,

for any assignment from Giacalone. The municipal court judge was on the bench in a room adjoining the police desk. Giacalone disturbed neither the detectives nor the judge over the call. Instead, he asked his dispatcher to determine from a computer whether the license number matched the description of the van. When the dispatcher replied that the computer was broken indefinitely, Giacalone did not press the inquiry and did nothing more for several hours.

About 1:45 P.M. Giacalone summoned White and his partner to headquarters. When they arrived he advised them of the call and sent them to the warehouse with instructions to "intercept" the van when it left the lot. This instruction was intended and understood to mean that White should stop and search the van as soon as it pulled into the street.

On arriving at the warehouse around 2 P.M. White spotted a van fitting the informant's description. A guard at the lot advised him that it belonged to a truck driver employee who was expected back from the road about 3 P.M. White walked over to the van and tried to open its doors but they were locked. He then looked through a window and saw cargo covered by a quilt. White, who had become familiar with their shape through previous investigations of thefts at the warehouse, thought that shoe cartons may have been under the quilt. He and his partner then waited in their car outside the lot.

The van pulled out about 4:30 P.M. When it turned into the street, the police car blocked its path. White and his partner approached the van with guns drawn, ordered its occupants, the defendants, to step out, and asked the driver whether he had any stolen shoes in the back. The driver replied, "I don't know what's back there." White lifted the quilt, uncovering several cartons of shoes, and then placed defendants under arrest. White testified that he did not believe he had probable cause until he saw what was under the quilt. Defendants move to suppress the cartons of shoes which they are charged with having stolen from the warehouse.

Any number of circumstances prompt law enforcement officers to conduct warrantless searches. Reviewing courts must measure the particular circumstances of a search against evolving interpretations of the Fourth Amendment. Understandably, the results are sometimes difficult to predict. As some police make out the case law, however, one common situation can be counted on to justify a warrantless search: where there is probable cause, a moving motor vehicle can be stopped and searched. This oversimplification of the exigency rule as it applies to motor vehicles leads to the false corollary that once there is probable cause to search a parked vehicle, no warrant is required so long as the search is conducted after the vehicle gets under way.

The starting point, as always, is the Fourth Amendment mandate that a police search must be reasonable and, subject to recognized exceptions, may not be conducted unless a judge authorizes it by issuing a warrant. Coolidge v. New Hampshire , 403 U.S. 443, 454, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The issuing judge not only passes upon probable cause but also fashions in the warrant those particulars relating to its execution that contribute to the reasonableness of the search.

Our fundamental inquiry in considering Fourth Amendment issues is whether or not a search or seizure is reasonable under all the circumstances. The judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate * * * Once a lawful search has begun, it is also far more likely that it will not exceed proper bounds when it is done pursuant to a judicial authorization "particularly describing the place to be searched and the persons or things to be seized." Further, a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need ...

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