On appeal from Mercer County Court.
Bischoff, Botter and Dwyer. The opinion of the court was delivered by Bischoff, P.J.A.D.
Defendant Ernest Pace, tried to a jury on two counts of a superseding indictment charging him with possession of a stolen vehicle, contrary to N.J.S.A. 2A:139-3, and possession of a pistol without a permit, contrary to N.J.S.A. 2A:151-41, was convicted and this appeal followed. We first consider defendant's contention that it was error to deny his motion to suppress evidence seized as a result of the warrantless search of the stolen motor vehicle he was operating and of his locked attache case located in the trunk of the car.
The proofs produced on the motion to suppress the evidence disclosed the following. Patrolman Richard A. Comfort was on routine patrol duty June 21, 1974, when he observed a motor vehicle southbound on Route 1 exceeding the speed limit and proceeding in the left lane while the right lane was open. After following the car for 1 1/2 miles he signaled the operator of the car to pull over and halt. The driver pulled to the shoulder of the road and stopped. The officer went over to the car and observed the driver, who was later identified as defendant, and a female passenger in the car. Defendant was unable to produce his driver's license, the registration or insurance papers for the car, explaining that he left them in Trenton and that his children had probably taken his wallet. He was also unable to produce any kind of identification. Comfort asked him and the passenger to step out of the car and proceeded to examine the vehicle in an attempt to discover ownership. He observed that the inspection sticker had been crudely altered and suspected the vehicle was stolen. He ascertained the vehicle identification number and radioed it and the license plate number to headquarters. The return call informed him the vehicle had been
stolen from Delaware. Returning to the vehicle, he placed defendant under arrest and handcuffed him.
By this time Sergeant Mauer had arrived at the scene and, in the presence of Mauer, Comfort conducted a "custodial or inventory" search of the vehicle in an attempt to ascertain the identity of the owner and determine whether there was any contraband in the car. Unable to find any indicia of ownership in the interior of the car (even after removing the rear seat) Comfort opened the trunk and found clothing and a locked attache case with the initials E.P. on it. When asked, defendant admitted the attache case was his but said he did not have the keys. Comfort "shook and jostled the attache case" in an attempt to open it. It flipped open and inside were some papers, a chrome plated .25 caliber Colt automatic and a small black holster. Five shells were in the magazine of the automatic.
Defendant moved to suppress the contents of the attache case prior to trial. In denying the motion the trial judge ruled:
(1) defendant had no standing to challenge the search since the vehicle was stolen and he had no proprietory or possessory right to the property in which the search was made, and
(2) the search was reasonable since the officer could rightfully search the stolen vehicle to ascertain who owned it and whether any contraband was present.
On appeal defendant challenges only the admission of evidence found as a result of the search of the attache case. He argues that under United States v. Chadwick , 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), and State v. Parker , 153 N.J. Super. 481 (App.Div.1977), the search of the attache case should be considered separate and apart from the search of the car.
The State, relying upon Rakas v. Illinois , 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), submits that defendant lacked standing to contest the entire search since he had no proprietory or
possessory right to the property and no reasonable expectation of privacy in the vehicle.
It is well established that Fourth Amendment rights are personal rights which may not be asserted vicariously. Rakas v. Illinois, supra , 439 U.S. at 132, 99 S. Ct. at 424, 58 L. Ed. 2d at 394; Brown v. United States , 411 U.S. 223, 230, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973); Simmons v. United States , 390 U.S. 377, 389, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, supra , 439 U.S. at 134, 99 S. Ct. at 425, 58 L. Ed. 2d at 395; State v. Parker, supra , 153 N.J. Super. at 488. And since the exclusionary rule attempts to effectuate the guarantees secured by the Fourth Amendment, only defendants whose Fourth Amendment rights have been violated may benefit from the exclusion of evidence. Rakas v. Illinois, supra , 439 U.S. at 134, 99 S. Ct. at 425, 58 L. Ed. 2d at 395; Simmons v. United States, supra 390 U.S. at 390, 88 S. Ct. 967.
Traditionally, the requirement that an individual assert his own Fourth Amendment rights has been analyzed as a question of "standing." Rakas v. Illinois, supra 439 U.S. 128, 99 S. Ct. 421; see Simmons v. United States, supra , 390 U.S. at 389-390, 88 S. Ct. 967; Jones v. United States , 362 U.S. 257, 262, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960).
But that approach to the issue was changed by the Court in Rakas v. Illinois. In Rakas , petitioners were convicted of armed robbery in Illinois state court. At trial the prosecution offered into evidence a sawed-off rifle and rifle shells that had been seized by police during a search of an automobile in which petitioners were passengers. Neither petitioner owned the car or asserted that he owned the rifle or shells seized. The Illinois appellate court held that petitioners lacked standing to challenge
the constitutionality of the search. The Supreme Court affirmed. 439 U.S. at 129, 99 S. Ct. at ...