On appeal from Burlington County Court.
Bischoff, Botter and Dwyer. The opinion of the court was delivered by Botter, J.A.D.
[171 NJSuper Page 391] The sole question on this appeal is the validity of a warrantless search of the trunk of an automobile driven by defendant who was stopped for speeding by a state trooper. Purportedly for the purpose of looking for the vehicle's registration certificate, the trooper compelled defendant to open the trunk where he found, instead, a large load of marijuana. In a prior appeal from defendant's conviction we remanded the case for a hearing, recognizing, in an unreported opinion, that defendant raised "substantial questions as to the validity of the warrantless search . . .."*fn1
On April 16, 1976 defendant was operating a vehicle bearing New York license plates in Mansfield Township, New Jersey. He was stopped by a state trooper for speeding at 63 m.p.h. in a 55 m.p.h. zone. Defendant had a valid driver's license in his possession but was unable to produce a registration certificate for the car. Instead, he showed the trooper a bill of lading from AAACON Auto Transport, Inc., consisting of three documents which he had received from AAACON. The documents pertained to the delivery of the car to a consignee, Carl Blumenthal, of 4210 Ave. R., Brooklyn, New York.
The trooper would not accept the documents in lieu of the registration certificate, so defendant looked for it in the glove compartment and above the visor, but he could not find it. Eventually the trooper suggested that it might be in the trunk, but defendant said he did not think so. Defendant knew the trunk contained marijuana. However, he finally opened the trunk of the car because he felt compelled to do so by the trooper's insistence. In these circumstances the trial judge found that the State failed to prove that the trunk lid was opened with defendant's consent. See State v. Johnson , 68 N.J. 349, 353-354, 346 A.2d 66 (1975).
Defendant opened the trunk lid and tried to close it hastily, but the trooper prevented him from doing so because, the trooper testified, when the lid was raised he detected the odor of marijuana. The trunk contained a large quantity of marijuana packed in black plastic bags.
Before the trunk lid was opened there was no probable cause to believe that the car was stolen or contained contraband. The trooper testified that he had no reason to believe the vehicle was
a stolen vehicle. He made no NCIC check, nor did he attempt to communicate with the alleged owner whose name, address and telephone number were on one of the documents. The trial judge found that "We do not have [a] probable cause situation prior to the trunk being opened." The only basis for stopping defendant was a traffic offense, speeding. Defendant was required to have a registration certificate in his possession when driving a car on New Jersey roads. N.J.S.A. 39:3-29. His violation of this section was also a traffic offense, not a crime.
We conclude that the police officer had no right to make a warrantless search of the trunk of the car against defendant's wishes even if he wanted to search for the car's registration certificate. As stated above, there was no probable cause to believe the car was stolen. In these circumstances, for traffic violations only, defendant could not be compelled to submit to a search of the trunk of the car against his will. State v. Slockbower , 79 N.J. 1 (1979); People v. Judge of Seventh Jud.D.C. , 55 Mich.App. 471, 222 N.W. 2d 778 (Ct.App. 1974); but cf. State v. Gammons , 113 N.J. Super. 434, 437 (App.Div.), aff'd o.b. 59 N.J. 451 (1971) (search of the glove compartment of a car which had been towed from the scene of an accident after the driver had been removed to a hospital and did not have the certificate in his possession). Not every traffic violation by itself will justify a search of all parts of the vehicle. State v. Boykins , 50 N.J. 73, 77 (1967); People v. Gonzalez , 356 Mich. 247, 97 N.W. 2d 16 (Sup.Ct.1959).
State v. Gammons, supra , relied upon State v. Boykins, supra , which contained dictum to the effect that an officer "may search the car for evidence of ownership" if the driver is unable to produce proof of ownership. However, a registration certificate was not involved in Boykins.
In Boykins the court said that the behavior of the car's occupants in fleeing from the police strongly suggested that the occupants had been involved in a "substantial criminal affair" and that ...