Defendants move to suppress approximately 266 grams of marijuana seized in an automobile on November 9, 1978 in the parking lot of the Olde Time Tavern, Route 166, Dover Township, New Jersey. On the evening in question Officer Robert Hardie of the Dover Township Police Department was observing the rear parking lot of the restaurant because of complaints of breakings and enterings of automobiles of patrons. At about 9:40 p.m. he saw two vehicles, a Chevrolet van and a Chevrolet Travelall enter the parking lot and stop near each other. He observed one defendant, Keith Barrett, appear to search the rear of the van and then walk over and enter the Travelall where the other three defendants were seated.
The Travelall then proceeded north and west to a remote area of the parking lot with little lighting. Sometime during its progress the driver, Dennis Keating, turned off its lights.
Officer Hardie called for his backup, Patrolman Baumeister, who picked him up in his unmarked car and proceeded to the area where the defendants were stopped. On approaching, Baumeister turned his spotlight on the vehicle, revealing the occupants. Hardie testified that at that point he observed an empty hand reach from the front seat to the back. Patrolman Baumeister stated he did not see this movement. In any event, Hardie proceeded to the driver's side of the Travelall and asked all four individuals for identification. The three Barretts -- Keith, Kathleen and Brian -- immediately produced theirs. Keating, the driver, had trouble finding his driver's license, eventually produced it, but failed to produce registration for the vehicle. Keating stated the vehicle belonged to a relative and that person had the registration. Hardie testified that Keating appeared nervous when asked for identification.
When Keating could not produce the registration the policemen requested all defendants to exit the vehicle and they complied. The police then conducted a search of the vehicle for the missing registration and for what they termed a protective search for their own safety. This led them beneath the back bench of the Travelall where they found a large brown bag. Hardie then pulled it from under the seat and looked inside, observing marijuana. Defendants were placed under arrest for possession of C.D.S., given the Miranda warnings and taken to police headquarters.
At the outset the court is confronted with the prosecutor's argument that the passengers (the three Barretts) have no standing to challenge the search. This argument is based on the recent United States Supreme Court decision in Rakas v. Illinois , 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), and its first reported offspring in this jurisdiction, State v. List , 166 N.J. Super. 368 (Law Div. 1979). The prosecutor takes the position that under these two cases the only person who can challenge the
search is the driver and/or owner of the searched vehicle, for only they would have a possessory interest in the vehicle and therefore a justifiable expectation of privacy therein.
The court agrees that if State v. List, supra , were controlling, the prosecutor would be correct in his argument. In List passengers in a searched car were charged with possession of C.D.S. The court, in interpreting Rakas, supra , held that those passengers had no standing to suppress the seized evidence since they had no expectation of privacy in a vehicle they did not own.
That interpretation of Rakas , in this court's opinion, is strained. In Rakas the passengers of the searched vehicle were not charged with possession of the weapon and ammunition seized, a key distinction. These items were to be used as evidence against them in a prosecution for armed robbery, not one for possession. The Supreme Court pointed out that not only did the passengers have no property interest in the vehicle, but they had no property interest in the items seized. Here, defendants are charged with possession of the C.D.S. in question. That is the very nature of the charges against them. The court agrees with defendants that they have Fourth Amendment standing to challenge the search. Rakas has not overturned Jones v. United States , 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), in this factual context. In Jones the United States Supreme Court held that when one is charged with possession of contraband, seized at ...