On appeal from Superior Court, Appellate Division, whose opinion is reported at 145 N.J. Super. 480 (1976).
For reversal -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Conford, P.J.A.D. (temporarily assigned). Pashman, J., concurring. Schreiber, J., concurring. Chief Justice Hughes joins in this opinion. Hughes, C.J., and Pashman and Schreiber, JJ., concurring in the result.
This appeal presents the question whether under the federal*fn1 and State*fn2 constitutional provisions concerning search and seizure the police may routinely impound a motor vehicle and in the course thereof inventory its contents on the occasion of the arrest of its driver for a motor vehicle offense. We hold such action by the police to be an unconstitutional invasion of the driver's zone of privacy unless the driver either consents or is given a reasonable opportunity to make other arrangements for the custody of the vehicle.
On March 13, 1975 defendant was arrested by Jersey City police on an outstanding warrant for driving a motor vehicle while on the revoked list. He was at the time driving an automobile registered to his wife. The vehicle was impounded and searched on the spot. The search turned up a pen gun and ammunition and defendant was charged with and indicted for statutory criminal violations in that regard. Defendant was successful on a motion to suppress the evidence for illegality of the search. The Appellate Division granted the State's motion for leave to appeal, and, by a divided vote, reversed. 145 N.J. Super. 480 (1976). We granted leave to defendant to appeal to this Court. 74 N.J. 255 (1977).
Three members of the Jersey City Narcotics Squad were on duty in an unmarked vehicle on the afternoon of the date in question. Two of them recognized defendant, whom they knew, driving a car. They had unsuccessfully executed a search warrant at his home two years before. They were also aware that a warrant for his arrest for driving on the revoked list was outstanding. Defendant was motioned over to a street intersection and stopped. As he stepped out of the
vehicle he was placed under arrest. The car was searched at once and a .22 caliber pen gun and a box of .22 caliber ammunition were found in the closed but unlocked glove compartment.
On the motion to suppress, arresting Detective Roth testified that it is standard procedure for "the safekeeping of the vehicle" to impound a vehicle and inventory its contents when the driver has been arrested. This was the only justification for the search given by the police -- a valid inventory of an impounded vehicle. However, no impounded vehicle report was filled out until after the car was taken to a precinct station and a second search conducted. The report was then completed and the vehicle taken to a car pound. The reason for the impoundment listed on the police report is "Pen gun found in auto." In fact no detailed report of the contents of the car was made. Despite the fact that various tools were in the car the report lists them collectively as "numerous tools."
Judge Thuring, sitting as motion judge, held there was no valid justification for the impoundment. There was no statutory mandate therefor; the car was neither disabled on the roadway nor a nuisance; it could have been safely parked and locked at the scene since the neighborhood was not dangerous. The judge expressed his disbelief that the impoundment was pursuant to any standard procedure. Noting that the inventory report stated as the reason for the impoundment the finding of the pen gun in the car, he concluded that the search preceded the impoundment and that the impoundment had been a pretext to justify the prior search.
In reversing, the Appellate Division majority relied on South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), decided some six months after the grant of the suppression motion. The court found that Opperman was controlling and that "[i]t recognized and approved the standard police procedure of impounding, inventorying and taking custody of a car when its occupant
is arrested and removed therefrom." 145 N.J. Super. at 484. It further found that the detectives acted reasonably in this case in following police regulations. The court cited N.J.S.A. 39:4-136 as additional support for the police action. The motion judge's finding that the car was searched before it was impounded was rejected as having no support in the record. In dissent from the Appellate Division decision, Judge Botter distinguished Opperman on the ground that it involved a parked, unoccupied vehicle in violation of overnight parking restrictions whereas in the instant case there was no indication that defendant could not have lawfully parked the car and arranged to have it picked up by his wife or someone else. He would have required that where an arrest is solely for a motor vehicle offense and the vehicle can be lawfully parked and is not needed as evidence the consent of the owner or operator of the car should be obtained by the police before its impoundment. 145 N.J. Super. at 491. It was also Judge Botter's view that the motion judge's finding that the search preceded the impoundment should have been sustained.
There is a substantial body of authority considering the circumstances under which, consistent with constitutional strictures against unreasonable searches or seizures, police may or may not take custody of (impound) a motor vehicle and inventory its contents, necessarily involving a prior search of the vehicle. See Annot. 48 A.L.R. 3d 537 (1973). This Court has not had prior occasion to deal with the subject in any context comparable to the instant situation. In State v. Hock, 54 N.J. 526 (1969), cert. den. 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970), an impoundment and search were upheld on probable cause to believe the car was stolen. There is no need here to consider the area of exceptions to the warrant requirement in relation to the search of a car stopped in motion on probable cause to believe the vehicle contains seizable objects, see Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1974, 26 L. Ed. 2d 419 (1970), or a search incident to the valid arrest of an occupant
or driver, see Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964), as neither of these exceptions to the warrant requirement is argued to exist here. Further, although by reason of the mobility and other characteristics of a motor vehicle, it is recognized that the search and seizure of a car may be found reasonable in circumstances where that of a home or office would not, see State v. Boykins, 50 N.J. 73 (1967), nevertheless it remains the law that motor vehicles constitute areas of privacy of persons and effects within the general protection of the Fourth Amendment and our own Constitution. United States v. Ortiz, 422 U.S. 891, 896, 95 S. Ct. 2585, 45 L. Ed. 2d 623 (1975); Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Marshall v. Barlow's Inc., 436 U.S. 307, 315 note 10, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978).
The problem for resolution in the present case does not extend to a survey of the general legitimacy of a police impoundment and inventory of the contents of a vehicle as the facts here presented compel the conclusion that there was no valid impoundment in the first instance but rather an unjustifiable investigatory search in the pretended guise of an impoundment and routine inventory.
The recent decision of the United States Supreme Court in South Dakota v. Opperman, supra, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000, is of only limited significance in this regard. In that case the Court framed the issue in terms of the justification to search a "lawfully impounded" vehicle. Id. at 365, 96 S. Ct. 3092. The vehicle in Opperman was illegally parked overnight in an area of town where parking on the streets was not permitted from 2 A.M. until 6 A.M. It was ticketed at 3 A.M. and again at 10 A.M. for an overnight parking violation. Shortly thereafter, the vehicle was towed to the city impound lot. Articles of value were observed from outside the car. The police unlocked the door and searched the interior, including the unlocked glove
compartment, using a standard inventory form to list the contents. "Standard police procedures" were followed. A bag of marijuana was found in the glove compartment. In the subsequent prosecution for possession of the drug defendant moved to suppress the evidence. A denial of that motion was reversed by the Supreme Court of South Dakota on grounds of violation of the Fourth Amendment. On certiorari, the Supreme Court reversed. The Court broadly implied approval of police assuming custody of vehicles as part of the "community caretaking functions" in various contingencies such as vehicle accidents and violation of parking ordinances jeopardizing "the public safety and the efficient movement of vehicular traffic." 428 U.S. at 368-369, 96 S. Ct. at 3097. The Court found that after a valid impoundment "local police departments generally follow a routine practice of securing and inventorying the automobiles' contents." Id. at 369, 96 S. Ct. at 3097. Three purposes for inventorying were discerned: protection of the owner's property while it remains in police custody; the protection of the police against claims over lost property; and the protection of the police from potential danger. Ibid.
While the Opperman plurality (Justice Powell filed a concurring opinion) stated that "these caretaking procedures" had "almost uniformly" been upheld by the state courts, 428 U.S. at 369, 96 S. Ct. 3092, there has been a substantial and growing minority of jurisdictions which have 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. Mozzetti v. Superior Court of Sacramento County, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P. 2d 84 (S. Ct. 1971); People v. Miller, 7 Cal. 3d 219, 101 Cal. Rptr. 860, 496 P. 2d 1228 (S. Ct. 1972); State v. Boster, 217 Kan. 618, 539 P. 2d 294 (S. Ct. 1975); State v. Singleton, 9 Wash. App. 327, 511 P. 2d 1396 (Ct. App. 1973); State v. Hardman, 17 Wash. App. 910, 567 P. 2d 238 (Ct. App. 1977); Granville
v. State, 348 So. 2d 641 (Fla. Dis. Ct. App. 1977); State v. Goodrich, 256 N.W. 2d 506 (Minn. S. Ct. 1977); State v. McCranie, 137 Ga. App. 369, 223 S.E. 2d 765 (Ct. App. 1976); City of Danville v. Dawson, 528 S.W. 2d 687 (Ky. Ct. App. 1975); Duncan v. State, 281 Md. 247, 378 A.2d 1108, 1116 (Ct. App. 1977); Dixon v. State, 23 Md. App. 19, 327 A.2d 516 (Ct. Sp. App 1974); State v. Jewell, 338 So. 2d 633 (La. Sup. Ct. 1976); United States v. Pannell, 256 A.2d 925 (D.C. Ct. App. 1969). Federal decisions in general accord are United States v. Lawson, 487 F.2d 468 (8 Cir. 1973); United States v. Edwards, 554 F.2d 1331 (5 Cir. 1977); United States v. Hellman, 556 F.2d 442 (9 Cir. 1977). See also State v. McDaniel, 156 N.J. Super. 347 (App. Div. 1978).
It has been persuasively stated in a number of cases, in seeking a rationale that would duly balance 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. Thus, in State v. Goodrich, supra, defendant had been arrested for driving while intoxicated. His mother and brother quickly arrived at the scene after defendant telephoned them with police permission from a service station across the street.
We hold that where police assumed custody of defendant's automobile for no legitimate state purpose other than safekeeping, and where defendant had arranged for alternative means, not shown to be unreasonable, for the safeguarding of his property, impoundment of defendant's automobile was unreasonable and, therefore, the concomitant inventory was an unreasonable search under the Fourth Amendment. We accordingly reverse.
In determining the reasonableness of an impoundment, the court posited the following test:
The state's interest in impounding must outweigh the individual's Fourth Amendment right to be free of unreasonable searches and seizures; although the expectation of privacy with respect to an automobile is significantly less than the traditional expectation of privacy associated with the home, this ...