Decided: November 22, 1978.
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
MARY MANGOLD, JAMES ASCUITTO AND STEPHEN LA BIANCA, DEFENDANTS-RESPONDENTS
On appeal from Monmouth County Court reported in 156 N.J. Super. 382 (Law Div. 1978).
Halpern and Ard.
[164 NJSuper Page 75]
These are consolidated interlocutory appeals by the State from a judgment suppressing evidence seized by the police during a warrantless automobile inventory search.
In this case we must strike a proper constitutional balance between the competing interests of society in the detection of crime and defendant's Fourth Amendment right to be free from unreasonable intrusions. The facts material to the issue involved are not in serious dispute and are fully set out in the opinion below and need not be repeated.
The State contends the police had the right to impound the car because it was disabled (N.J.S.A. 39:4-136) and
[164 NJSuper Page 76]
was blocking the roadway, and that they could then inventory the car for the reasons set forth in South Dakota v. Opperman , 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), and State v. Slockbower , 145 N.J. Super. 480 (App. Div. 1976), motion for leave to appeal granted, 74 N.J. 255 (1977). The impounding was justified but we disagree that the inventory search was valid and affirm essentially for the reasons set forth in Judge Shebell's opinion reported in 156 N.J. Super. 382 (Law Div. 1978).
Because of the frequency with which warrantless auto inventory searches are coming into question, we supplement his opinion by emphasizing that under the existing admitted facts (1) the police had no reason to suspect that defendants had committed any crime or that the Ford van contained any contraband, and (2) LaBianca, the owner of the van, was not under arrest and was fully capable of taking control of his few possessions in the van. We therefore hold that in warrantless auto inventory search cases, where the police have no reason to suspect that criminality is afoot, before the police may inventory the contents of a car when the owner is present, they should give the owner the opportunity of removing his possessions from the car. A failure to give an owner, present at the scene, an opportunity to remove his possessions would be an unwarranted and unreasonable intrusion into defendant's privacy and violative of his constitutional rights.
In the instant case, where a reasonable alternative existed, we are satisfied from the record, as was the trial judge, that the inventory conducted by the police was nothing more than a subterfuge to make an unlawful search. The holding by this court in Slockbower, supra , is inapposite.