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State v. Ercolano

Decided: January 12, 1979.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
ANTHONY ERCOLANO, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Appellate Division.

For affirmance -- Justices Sullivan, Pashman, and Clifford and Judge Conford. For reversal and remandment -- Chief Justice Hughes and Justices Schreiber and Handler. The opinion of the court was delivered by Conford, P.J.A.D. (temporarily assigned). Pashman, J., concurring. Schreiber, J., dissenting. Chief Justice Hughes join in this opinion. Handler, J., dissenting. Pashman, J., concurring in the result.

Conford

[79 NJ Page 29] We confront here the same general question we dealt with in State v. Slockbower, 79 N.J. 1, decided this day. That is the matter of the circumstances under which the police in arresting an individual may take custody of his automobile (i.e., impound it) and search it for purposes of making an inventory of its contents. In State v. Slockbower the arrest was for a motor vehicle offense. We there held such action by the police was in violation of the federal and State constitutional protections against unreasonable search and seizure "unless the driver either consents or is given a reasonable opportunity to make other arrangements for the custody of the vehicle." Id. at 4. Although the arrest here was for conspiracy of bookmaking, we hold the Slockbower rule still applicable in the absence of any indication at the time of the purported impoundment that the purpose of the police was anything other than to perform the "community

caretaking functions" mentioned in South Dakota v. Opperman, 428 U.S. 364, 368 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976). As in Slockbower, our holding reflects our interpretation of the requirements both of the Fourth Amendment of the federal Constitution and of the comparable provision of our State Constitution. N.J. Const. (1947), Art. I, par. 7.

I

Defendant was arrested in an apartment on July 7, 1976 on a bookmaking charge. His automobile, properly parked on a street, was towed by the police and later searched without a warrant. Incriminating matter was found. Defendant was indicted along with seven others for conspiracy to commit the crime of bookmaking, contrary to N.J.S.A. 2A:98-1(a) and N.J.S.A. 2A:112-3, and in a second count for bookmaking, contrary to N.J.S.A. 2A:112-3. Thereafter defendant moved before Judge Barbieri in the Law Division to suppress evidence. The judge granted that aspect of the motion which was addressed to lottery slips discovered during the search of defendant's automobile. The Appellate Division denied the State's motion for leave to appeal but this Court granted leave to appeal and consolidated the appeal, for purposes of oral argument alone, with State v. Slockbower, supra, a similar question of search and seizure law being presented.

During the early summer of 1976, a bookmaking investigation was taking place in Elizabeth. Electronic surveillance was maintained by the Union County Prosecutor on one Michael Verlingo at 1381 North Avenue, Apartment A-4 in Elizabeth. On June 30, 1976 Detective Lynch of the Prosecutor's Organized Crime/Narcotic Strike Force intercepted a call from an unidentified individual saying that he wanted to pick up his money from Verlingo. Verlingo replied that the caller could pick up his money the following day at 1 P.M. Lynch advised Sergeant Robert Rowland,

leader of the Union County Prosecutor's Gambling Unit Office, concerning the call. Lynch monitored another call on July 7, 1976 indicating that an unidentified caller would see Verlingo at 8 P.M. that evening. Lynch again notified Rowland. This was shortly before search warrants were to be executed on the Verlingo premises.

At the suppression hearing, Lynch indicated that he believed the unidentified callers of June 30 and July 7 were one and the same person. He said that he had heard this voice five to seven times prior to July 7.

After being informed of the June 30 call, the Elizabeth Police Department stationed two detectives at the Verlingo residence on July 1 for the purpose of identifying the party who was scheduled to arrive at 1 P.M. They observed a gray Lincoln Continental pull up to 1381 North Avenue. A man entered the building and emerged five minutes later. The officers ascertained by radio that the vehicle was registered to Enrico Ercolano (defendant's brother), of Jersey City.

A search warrant for the apartment was obtained on July 7, 1976 and planned for execution that evening. The warrant was executed on the evening of that day while police awaited the arrival of the expected visitor. They had orders to arrest him. Defendant arrived at the premises in the same Lincoln automobile which had been observed on July 1. As he entered the building after parking the vehicle at the curb he was arrested on grounds of conspiracy in gambling activity. At the direction of an assistant Union County prosecutor present on the occasion, the police had the car towed to a police garage for its own protection from tampering while its driver was being investigated. It is entirely clear from the testimony of all the State witnesses that the protection of the vehicle was the only purpose of the police in impounding the car. Defendant was subsequently asked for permission to search the car but refused, saying the vehicle belonged to his brother. It was conceded that the car was legally parked on North Avenue. The street was a residential but well trafficked one. The particular reasons given by the

police for the impoundment at the hearing on the motion to suppress were that the car was new, the thoroughfare was a busy one and the driver was not the owner. Before the car was towed away it was subjected to an "outside" inventory extending to the hubcaps, antennae and "things from the front of the car." No further explication of this was given.

About an hour and a half after the car was towed to police headquarters Sergeant Rowland went to the garage where the car had been placed and searched it, "for the safety of the vehicle"; to make sure it was "in the same shape" as when it was towed away. However, he also said that before entering the vehicle he observed from outside some papers with writing on them on the console between the front seats. He could not read the papers but he "surmised" they might be evidence in the investigation. When the papers were retrieved from the car during the search they were seen to constitute records of amounts owed to or from bettors or bookmakers.

Judge Barbieri, for the Law Division, granted defendant's motion to suppress the papers taken from the car. He concluded that the concern purportedly manifested by the police for the safety of the car was not a sufficient justification for its search without a warrant in these circumstances. We agree.

We emphasize preliminarily that at no time in the history of this case has the State contended that the car was searched on probable cause of its containing seizable objects such as fruits, instrumentalities or evidence of crime. Had the State argued such a theory at the motion to suppress it would have been of at least questionable merit on the proofs taken.*fn1 Sergeant Rowland testified that when the car was impounded he was not "curious to find out whether or not there was any gambling paraphernalia in the car."

If he had been "curious," he said, that would have had nothing to do with the reason the car was taken -- which was solely for its own protection. If the police had no probable cause to search the car when it first reached the North Avenue building, they certainly would have had no legal ground to search it without a warrant on probable cause grounds later, after it had been removed to the police garage, even if factual probable cause existed at the later time based on the observation of the paper slips. The vehicle was then no longer mobile and was under control of the police. A warrant would have been requisite. See Coolidge v. New Hampshire, 403 U.S. 443, 462-464, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).*fn2

Thus the validity vel non of the search must depend completely on whether there was a valid impoundment in relation to which the search constituted a reasonable inventorying of the contents of the vehicle. In this case it does not appear that an inventory was ever made of the contents of the vehicle after the retrieval of the gambling slips. But more important, the impoundment of the car by the police in the first instance was unreasonable in a Fourth Amendment or Art. I, par. 7 sense because not reasonably necessary for community safekeeping purposes as against an appropriate regard for the privacy interests of the driver of the car.

In our opinion in State v. Slockbower, supra, we reviewed the impoundment-inventory cases throughout the country, including South Dakota v. Opperman, supra, and concluded that the most soundly reasoned of them "insisted upon a factual showing of substantial police need, in the light of the constitutional regard for the privacy interests of automobile

drivers, before approving the impoundment of a motor vehicle." 79 N.J. at 8. In particular we approved the rationale of a number of such cases, developed with a sense of balancing the right of privacy against legitimate police safekeeping functions, "that if the circumstances that bring a vehicle properly to the attention of the police are such that its driver, even though arrested, is able to make his own arrangements for its custody, or if the vehicle can be conveniently parked and locked without constituting an obstruction of traffic or other public danger, the police should permit that action to be taken rather than impound it against the will of the driver and thereafter search it routinely" Id. at 9.

Application of the foregoing principles to the instant case fully justifies the grant of the motion to suppress. The taking of the car by the police and its search were unreasonable as against both the Fourth Amendment and N.J. Const. (1947), Art. I, par. 7. Leaving the properly parked and locked car on the street where defendant had left it, for a reasonable period of time, presented no more danger to the car and its contents than if defendant had been on a legitimate visit to a tenant in the apartment house. In the meantime, and until he could obtain release on bail, defendant should have been afforded an opportunity to telephone his brother or others to assume custody of the car. Absent such action by the police, their seizure of the car was illegal, and so must be the inseparable concomitant thereof, the later search of the vehicle. Wong Sun v. United States, 371 U.S. 471, 485-486, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

The Attorney General as amicus curiae raises the contention, never made by the Prosecutor, that the taking of the betting slips out of the car can be defended on the "plain view" doctrine. Passing the consideration that we do not ordinarily accept issues for appellate argument not posed at trial level and that if the issue were now entertained it would have to be remanded for a hearing so as to give defendant due opportunity to contest it on the evidence, we

conclude the point lacks merit as a matter of law. The applicability of the plain view doctrine depends upon the right of the officer "to be in the position to have that view," Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 993, 19 L. Ed. 2d 1067 (1968); Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S. Ct. 2022. Here the police did not have the right to be in the position to have the view of the slips when they saw them. For the reasons already set forth, their assumption of control of the car was illegal. Had they complied with defendant's rights in the manner set forth above, the car presumably would not have been available for the so-called plain view. Secondly, the observation of the slips was not the result of an "inadvertent" viewing by the police of the interior of the car while conducting a lawful search activity, but of a purposeful inspection of it from the outside, clearly for investigative purposes. This is in violation of the legitimate boundaries of the plain view doctrine, as explained in Coolidge v. New Hampshire, supra, 403 U.S. at 466-471, 91 S. Ct. 2022.

Finally, the State makes another belated argument, never proffered at motion level, that the slips "would have been discovered even if the custody of the vehicles was improper." Again, a remand for hearing would be required if the contention were colorable. There is some authority that if items in fact discovered by the police as a direct result of illegal police activity, and therefore normally subject to exclusion from evidence under the "fruits" doctrine, would have "inevitably" been discovered by the police even if the illegality had never taken place, the items will be admissible. See Government of the Virgin Islands v. Gereau, 502 F.2d 914 (3 Cir. 1974), cert. den. 420 U.S. 909, 95 S. Ct. 829, 42 L. Ed. 2d 839 (1975); People v. Fitzpatrick, 32 N.Y. 2d 499, 346 N.Y.S. 2d 793, 300 N.E. 2d 139 (Ct. App. 1973), cert. den. 414 U.S. 1050, 94 S. Ct. 554, 38 L. Ed. 2d 338 (1973). But cf. United States v. Paroutian, 299 F.2d 486 (2 Cir. 1962).

We need not consider whether the principle stated is a proper exception to the exclusionary rule. It is not applicable here. The police never saw these slips until after they had illegally impounded the car although they had made a previous search of its exterior. Had they not impounded the vehicle, there is no probable, let alone, "inevitable" predicate for the hypothesis that they would have found the slips. For the same reasons as discussed above in relation to the "plain view" contention, the slips would have been beyond the purview of the prosecutor's investigation had defendant's right to have his car left undisturbed by the police been respected.

The search of the car was illegal, and the evidence taken therefrom was properly suppressed.*fn3

II

Justice Schreiber's dissent proposes that in considering the validity of this search the Court may properly ignore the facts established at the hearing as to the basis for the officers' action discussed above and remand for a new hearing and findings as to whether there was probable cause (in an abstract sense) for the search of the automobile. This without regard to whether the officers believed probable cause existed and their search of the car was pursuant to such hypothetical probable cause, or whether, to the contrary, for purely investigatory or other invalid purposes. Upon a hypothetical

finding by the trial court that probable cause existed, the dissent would validate the search on the basis of the automobile exception to the warrant requirement. Respect for the earnestly held views of the dissenting members of the Court impels a response. We propose first to show that a remand for that purpose would be inappropriate, and, in the next section of this opinion, that even on the premise assumed by the dissent the automobile exception would not be effective to validate the search.

We begin with the preliminary observation that law enforcement is the obligation of the Executive branch of government and that the function of the Judiciary is the dispassionate and even-handed adjudication of the respective rights of the State and the accused defendant. In that regard, there is no more solemn responsibility of the courts than the vindication of the rights of all citizens under the Bill of Rights of both the federal and State constitutions, including the provisions respecting unreasonable searches and seizures. State v. Macri, 39 N.J. 250, 265 (1963). It would thus seem at least anomalous, in a controversy over the claimed violation of the defendant's right of privacy under both constitutions, that this Court, without any argument by the State to that effect at any stage of the litigation, should on its own motion inject into the case a hypothetical issue of probable cause which the proofs demonstrate conclusively was never entertained by the police when dealing with defendant's vehicle.

The dissent suggests that the intent and purpose of the seizing and searching officers is irrelevant to the validity of their action. That view is both inconsistent with the rationale of the exclusionary rule and contrary to the best reasoned of the authoritative decisions.

It is indisputable that the exclusionary rule, to which the states are bound under Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), was devised to deter the police from unconstitutional searches and seizures because

other remedies were deemed ineffective. As there stated, citing earlier language of the Court, the purpose of the exclusionary rule "is to deter -- to compel respect for the constitutional guaranty in the only effectively available way -- by removing the incentive to disregard it." Id. at 656, 81 S. Ct. at 1692; see also Terry v. Ohio, 392 U.S. 1, 12, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). It follows from this that if in the present case the police were intending only a safekeeping impoundment of the Ercolano vehicle, which as a matter of constitutional law was invalid under our Slockbower holding of today, the rationale of deterrence of unconstitutional police conduct compels exclusion of the evidence here seized. Saving the validity of the police action on a court-devised theory of justification would not deter future unconstitutional impoundments of vehicles or investigatory entries into vehicles without lawful warrant.

The intent and purpose of the police in conducting a search has frequently been held material to the validity thereof. A leading example is the oft-cited case of Jones v. United States, 357 U.S. 493, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958). There, government agents forcibly entered a home at night with a daytime search warrant intending to search the house and seize articles expected to be found there in the operation of an illegal still. The articles found were used in convicting the owner of the house who was not present during the search. The Court held the search invalid on the ground that mere probable cause of the presence therein of seizable objects did not suffice to permit search of a house without a valid search warrant. The Government had argued that it was "rational to infer" that the agents had entered the house with intent to arrest defendant and with such intent they could legally seize the illicit equipment in plain sight. Id. at 499, 78 S. Ct. 1253. The Court rejected the argument on the ground that "the record fails to support the theory now advanced by the Government. The testimony of the federal officers makes clear beyond dispute

that their purpose in entering was to search for distilling equipment and not to arrest petitioner." (emphasis added) Id. at 500, 78 S. Ct. at 1257.

It is quite evident that the Supreme Court could have validated the search in Jones by adopting the approach of the present dissenters. It could merely have said that it would judge the actions of the agents by assuming they had the intent to arrest when entering the house -- an intent which would have been entirely warranted on the objective facts known to the agents. But it is evident that the Court would have regarded such an evasion of the true facts as lending authority to an invalid search. The actual intent of the officers was regarded as fatal to the search as a matter of law.

Jones v. United States, supra, was followed in respect of the significance of the intent of the searching officers by our Appellate Division in State v. Baker, 112 N.J. Super. 351, 356-357 (1970), which in turn was followed by this Court in State v. Sims, 75 N.J. 337, 353 (1978). As stated by Justice Pashman in the Sims case: "* * * in order for a search to be justified as incidental to a valid arrest, there must have been an intention on the part of the officers to arrest on the information possessed by them prior to the search, without regard to what the search might disclose." (emphasis added) Id. at 353. Thus, also in State v. Doyle, 42 N.J. 334, 342 (1964), this Court said: "Officers cannot search in order to arrest, nor arrest because of the product of the search. A search undertaken merely for the purpose of uncovering evidence with which to arrest and convict of crime is not made lawful because the desired evidence is obtained" (emphasis added).

While the points of substantive search law involved in the foregoing cases were different from that in the instant case, the principle that the intent and purpose of the searching officers may be material, indeed crucial, to the validity of the search, is fully applicable here. The courts in the cited cases refused to supply a non-existent intent or state of

mind on the part of the officers to save the validity of the searches in those cases, and this Court will not do so here.

The intent and purpose of the police can validate as well as impugn a seizure and search. In Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), the police searched the trunk of the car of an off-duty policeman arrested for drunken driving. The purpose of searching the trunk was to find the officer's gun in order to prevent its coming into the hands of others, i.e., in execution of the "community caretaking functions" of the police and not for the purpose of discovering criminal evidence. Id. at 441, 93 S. Ct. 2523. Thus the exigent purposes of the warrantless search saved its validity.

The dissent cites cases declaring, in one form or another, that the objective facts rather than the searching officers' appraisal of them should control the determination of the existence of probable cause to validate a search. (pp. 35-37). For example, in Guzman v. Estelle, 493 F.2d 532, 536, n. 13 (5 Cir. 1974): "The test of probable cause is not the articulation of the policeman's subjective theory but the objective view of the facts." We would not disagree that where police officers are conducting a search under an appropriate exception to the warrant requirement the existence of probable cause will be judged by a reviewing court on the basis of an objective view of the facts as they would appear to a man of reasonable caution; Terry v. Ohio, supra, 392 U.S. at 21, 88 S. Ct. 1868; Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); State v. Sims, supra, 75 N.J. at 354; and this whatever the officer's own estimate of the strength of the probability or his mental articulation of the underlying facts, see White v. United States, 448 F.2d 250, 254 (8 Cir. 1971), cert. den. 405 U.S. 926, 92 S. Ct. 974, 30 L. Ed. 2d 798 (1972); Dodd v. Beto, 435 F.2d 868, 870 (5 Cir. 1970), cert. den. 404 U.S. 845, 92 S. Ct. 145, 30 L. Ed. 2d 81 (1971).

But the cases and principles relied upon by the dissent cannot, with any degree of faithfulness to the constitutional principles implicated or to the theory of the exclusionary rule, operate to validate the instant search. A foothold for validity cannot be constructed on the basis of abstract probable cause in the mind of the Court alone, a warrantless seizure not at all purported to rest on probable cause but only on the community safekeeping function of the police, and a warrantless search, similarly not based on probable cause, but solely on suspicion and purely investigatory and exploratory in nature. See Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S. Ct. 2022.

III

Finally, it is our opinion as a matter of both state and federal constitutional law that this search would not be valid even were we to assume a finding on remand that the officers had probable cause to believe the automobile contained seizable objects at the time defendant was arrested in the apartment house. The contrary thesis is entertained by Justice Schreiber's dissent on the basis of the so-called automobile exception to the warrant requirement of the state and federal constitutions. This exception has given the courts in recent years considerable difficulty as the pressure for law-enforcement in relation to automobile connected crime collides with the privacy interests of the public at large in motor vehicles. See Miles & Wefing, "The Automobile Search and the Fourth Amendment: A Troubled Relationship," 4 Seton Hall L. Rev. 105 (1972); Note "Warrantless Searches and Seizures of Automobiles," 87 Harv. L. Rev. 835 (1974); Moylan, "The Inventory Search of an Automobile: A Willing Suspension of Disbelief," 5 Balt. L. Rev. 203 (1976).

In our view, the most soundly reasoned of the judicial opinions in this area are those which are most faithful to and consistent with the basic precept of the Fourth

Amendment that any warrantless search is prima facie invalid and gains validity only if it comes within one of the specific exceptions created by the United States Supreme Court. There can be no doubt as to the current authoritativeness of that concept. Marshall v. Barlow's Inc., 436 U.S. 307, 313, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Wyman v. James, 400 U.S. 309, 317, 91 S. Ct. 381, 27 L. Ed. 2d 408 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). This Court has recently expressly embraced that doctrine. State v. Sims, supra, 75 N.J. at 351. The exceptions were developed by the Court in specific categories of situations where strong considerations of law enforcement and public safety impelled a suspension of the normal high value embedded in the constitutions that probable cause for a search or seizure should be determined in advance by a neutral judicial officer rather than by a law enforcement agent in the course of detection of crime. That high value was best expressed in McDonald v. United States, 335 U.S. 451, 455-456, 69 S. Ct. 191, 93 L. Ed. 153 (1948), in a passage quoted in full in Chimel v. California, supra, 395 U.S. at 761, 89 S. Ct. at 2039, as follows:

We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. * * * And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative. (emphasis added)

That automobiles, in broad principle, are included within the protection of the foregoing rationale of the warrant requirement is made clear in Coolidge v. New Hampshire, supra, 403 U.S. at 462, 91 S. Ct. 2022, and in Chambers v. Maroney, supra, 399 U.S. at 50, 90 S. Ct. 1975.

It follows as a corollary of the foregoing rationale of the warrant requirement that the common thread of the developed exceptions to that requirement is the impracticality of obtaining a warrant in the particular law-enforcement or public safety exigency presented. Chimel v. California, supra, 395 U.S. at 758-767, 89 S. Ct. 2034; ...


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