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State v. Wysocki

New Jersey Superior Court, Appellate Division


Decided: February 5, 1979.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JAMES B. WYSOCKI, DEFENDANT-RESPONDENT

On appeal from Superior Court, Law Division, Somerset County.

Fritz, Bischoff and Morgan. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

[166 NJSuper Page 139]

The State appeals pursuant to leave granted from an order suppressing "all evidence seized on the grounds that such evidence was seized as a result of an illegal warrantless search."

At the commencement of the hearing on the motion to suppress, the record discloses the attorneys agreed that the trial judge should decide the motion on the basis of a stipulation of facts, the facts appearing in the briefs and "provided in the various letter memorandums submitted to the court."

The following facts were thus presented to the court.

On the afternoon of January 31, 1978 the car of defendant James B. Wysocki was immobilized by snow in the driveway

[166 NJSuper Page 140]

of a friend he had been visiting in Bernardsville, New Jersey. He radioed police for assistance and Patrolman Trepiccione arrived and determined that a tow truck would be needed. After calling for a truck, the officer asked defendant for either his driver's license, as the State contends in a brief filed below, or simply for identification, as it argues on this appeal. Defendant handed the officer the driver's license of one Louis Ferdinand, age 53. Wysocki, in his teens, appeared much younger and when asked by Trepiccione to spell Ferdinand, his response was incorrect. The officer radioed headquarters for a license plate check, and the answer disclosed that the license plates on the car stuck in the snow were assigned to a 1965 Rambler, while the car to which the plates were affixed was a 1977 Toyota. Defendant was arrested and searched. The search disclosed stolen articles contained within the car and the search of defendant revealed the presence of stolen articles on his person. Defendant's motion to suppress this evidence was granted and provides the basis for this appeal.

Additional facts before the court reveal that there had been reports of prowlers in the area and the officer did not recognize defendant as being a local resident. Further, the officer was required to complete a "Citizen's Assistance Report" and needed defendant's name and address for that purpose.

It is defendant's contention that it was improper for the police to ask him to produce his driver's license. He argues that N.J.S.A. 39:3-29*fn1 authorizes a police officer

[166 NJSuper Page 141]

to demand production of a driver's license only when a driver is observed operating a motor vehicle on the highway while, on the contrary, he was not operating and the vehicle involved was not on the highway but in a private driveway. Assuming arguendo that the request was for driving credentials, we disagree. The statute is not, by its terms, so restricted and is not to be so narrowly construed. "If a motor vehicle statute makes no references to offenses occurring on a public highway, it is usually held that the statute applie(s) generally throughout the State." State v. McColley , 157 N.J. Super. 525, 530 (App. Div. 1978); State v. Magner , 151 N.J. Super. 451, 454 (App. Div. 1977). Moreover, operation of a motor vehicle on the highway by a particular driver may be established by circumstantial evidence. State v. Sweeney , 40 N.J. 359 (1963); State v. Dickens , 130 N.J. Super. 73 (App. Div. 1974); State v. Guerrido , 60 N.J. Super. 505, 511 (App. Div. 1960); State v. Prociuk , 145 N.J. Super. 570 (Cty. Ct. 1976); State v. Damoorgian , 53 N.J. Super. 108 (Cty. Ct. 1958); cf. State v. Daly , 64 N.J. 122 (1973).

Here the defendant called for assistance to release his car from the snow so he could enter the highway. He admitted he had been visiting the occupants of the house and became stuck in the snow as he was leaving. It was apparent

[166 NJSuper Page 142]

to the officer that the car had not been stuck in the snow for a long time. These facts provide an adequate basis for inferring operation of the vehicle by the defendant, and the officer's request for driving credentials was both authorized by the statute and reasonable under the circumstances. State v. Gammons , 113 N.J. Super. 434 (App. Div.), aff'd 59 N.J. 451 (1971); State v. Kabayama , 98 N.J. Super. 85 (App. Div. 1967), aff'd o.b. 52 N.J. 507 (1968). The request for driving credentials being proper, all that followed was normal police investigation into unexplained suspicious circumstances. State v. Gammons, supra.

The actions of the police officer were also full warranted if it be assumed that his request was merely for identification and not for driving credentials. The propriety of this request may be rested on circumstances apart from the statute regulating the operation of motor vehicles. In State v. Sheffield , 62 N.J. 441, cert. den. 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973), the court sanctioned "field interrogation" by a policeman who does not have the reasonable suspicion of criminal activity required for a Terry search. Id. 62 N.J. at 447; Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In Sheffield the officer merely questioned the defendant and the court found nothing illegal in that activity. 62 N.J. at 446.

Defendant has no basis for complaint for he requested assistance, and his acts focused police attention on his conduct. Defendant's response to the reasonable request for identification or production of his driver's license disclosed discrepancies which warranted further investigation by police resulting in the arrest, search and discovery of the stolen articles.

We hold the warrantless search conducted by the police of defendant's person and of the car was supported by ample probable cause and the motion to suppress should have been denied.

Reversed and remanded.


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