On certification to Superior Court, Appellate Division, whose opinion is reported at 164 N.J. Super. 74 (1979).
For affirmance -- Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Clifford, J. Pashman, J., concurring. Justice Pashman concurs in result.
[82 NJ Page 577] This case concerns the propriety of police automobile inventory procedures initiated subsequent to lawful vehicle impoundment. The issue, left unresolved by the recent decisions of this Court in State v. Slockbower, 79 N.J. 1 (1979), and State v. Ercolano, 79 N.J. 25 (1979), is whether, in the absence of a search warrant or indicia of criminality, law enforcement officials must afford one an opportunity to remove possessions from the impounded vehicle before conducting an inventory of its contents. We conclude that the contraband discovered in the course of an inventory conducted without first permitting vehicle occupants to utilize available alternative means of safeguarding their property is inadmissible as evidence in a criminal prosecution. Such police conduct amounts to an unreasonable and unwarranted intrusion into the privacy interests of those occupants in contravention of the Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution (1947).
At approximately 8:00 p.m. on January 23, 1977 Lieutenant Raymond LaSalle of the Marlboro Township Police was summoned to the scene of a one-vehicle accident on Route 79 in Marlboro Village. Arriving at the accident with two other police officers Lieutenant LaSalle found that a van had apparently skidded on the icy road surface, struck a tree adjacent to the highway and come to rest so as to obstruct the northbound lane of Route 79. After an examination revealed the vehicle to be inoperable, LaSalle, without consulting with the occupants, arranged to have it towed from the scene.
While awaiting the arrival of the towing service the officer attempted to ascertain the identity of the occupants of the van and question them. Defendant LaBianco identified himself as being the owner of the vehicle, but said that he had been riding as a passenger at the time of the accident and that defendant Mangold had been driving.*fn1 During the course of this conversation LaSalle noted that LaBianca was acting in an "extremely agitated" manner. It appeared to him that LaBianca was under the influence of drugs or alcohol.
After conversing with LaBianca, the lieutenant returned to the van to make certain the ignition was off and to check for gasoline leakage. With the assistance of another officer, he then proceeded to inventory the contents of the van in accordance with the departmental policy of the Marlboro Police. While LaSalle was inspecting the van, defendants LaBianca and Mangold were seated in a police car with one of the investigating officers approximately seventy-five feet away. The defendants were neither consulted before the inventory was undertaken nor asked if there were any valuables in the vehicle which they wished to remove.
Upon entering the vehicle Lieutenant LaSalle's attention was attracted to a portable television set situated between the driver's seat and the passenger seat. On the floor of the van, near the television, he observed a closed Coleman cooler lying on its side. In righting the cooler the lieutenant determined that it was not empty. When he unlatched and opened the lid, LaSalle discovered the cooler contained several empty spark plug boxes, two eight packs of Rolling Rock beer, and a "large plastic bag containing green vegetable matter." It was determined that the substance in the bag was marijuana and the defendants were arrested. A subsequent search of LaBianca uncovered additional marijuana.
Defendants were indicted for possession of a controlled dangerous substance in violation of N.J.S.A. 24:21 20a(4). Defendant LaBianca's motion to suppress the evidence secured through the inventory of the van was granted by the trial judge, who found:
The alleged inventory in question was unreasonable under all of the circumstances considering the availability of the owners and the failure of the authorities to advise or consult them before proceeding with what was not only a search of the vehicle but also a search of the contents found in it.
Since there was no probable cause for such a search and it cannot be sustained as a proper inventory search because it has not been shown to be reasonable or necessary for the protection of the owner, the authorities or the towing service, the motion to suppress is granted. [156 N.J. Super. 382, 388 (Law Div.1978) (citation omitted).]*fn2
On appeal from the suppression order the cases of all three co-defendants were consolidated. In a per curiam opinion the Appellate Division affirmed, adding:
Because of the frequency with which warrantless auto inventory searches are coming into question, we supplement [the trial judge's opinion] by emphasizing that under the existing admitted facts (1) the police had no reason to suspect that defendants had committed any crime or that the Ford van contained any contraband, and (2) LaBianca, the owner of the van, was not under arrest and was fully capable of taking control of his few possessions in the van. We therefore hold that in warrantless auto inventory search cases, where the police have no reason to suspect that criminality is afoot, before the police may inventory the contents of a car when the owner is present, they should give the owner the opportunity of removing his possessions from the car. A failure to give an owner, present at the scene, an opportunity to remove his possessions would be an unwarranted and unreasonable intrusion into defendant's privacy and violative of his constitutional rights. [164 N.J. Super. 74, 76 (1978).]
We granted certification, 81 N.J. 43 (1979), to review that holding and now affirm.
It must be emphasized at the outset that the State does not contend that the search executed in this case is justifiable upon any ground other than as an inventory search. The record demonstrates that the facts will not support the application of any of the other established exceptions to the Warrant Clause of the Fourth Amendment. Prior to the inventory there was no arrest, Chimel v. California, 395 U.S. 752, 757, 89 S. Ct. 2034, 2036, 23 L. Ed. 2d 685 (1969), consent, Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), or probable cause, Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). Similarly inapplicable are the notions of plain view, Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), and hot pursuit, Warden v. Hayden, 387 U.S. 294,
87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Our inquiry is necessarily confined accordingly.
Warrantless, nonconsensual automobile inventory searches have frequently been the subject of judicial scrutiny by this and other courts. The signal case in the area, South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), broadly approved such intrusions when undertaken to secure the contents of automobiles lawfully in police custody. In Opperman, an automobile was impounded and towed by the police for parking violations. At the city impoundment lot a police officer observed several items of personal property inside the car. Pursuant to standard police procedure the officer unlocked the vehicle and began to inventory its contents. During that process a plastic bag containing marijuana was found in the unlocked glove compartment of the car.
In upholding the inventory against constitutional challenge the United States Supreme Court determined that the automobile impoundment was sanctioned by the "'community caretaking functions'" incumbent upon law enforcement officials in situations wherein the public safety and efficient movement of vehicular traffic are jeopardized. Id. at 368, 96 S. Ct. at 3096, 49 L. Ed. 2d at 1005 (quoting Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706, 715 (1973)). As to the inventory the Court declared that such intrusions into automobiles legally "impounded or otherwise in lawful police custody" have been widely sustained as reasonable under the Fourth Amendment "where the process is aimed at securing or protecting the car and its contents." Id. 428 U.S. at 373, 96 S. Ct. at 3099, 49 L. Ed. 2d at 1007 (citing Cady v. Dombrowski, supra; Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); Cooper v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967)). Noting that the inventory procedure was a product of routine police practice, the Court found it served a three-fold purpose: protection of the inventoried property while in police custody, shielding the police and storage bailees from
false property claims, and safeguarding the police from potential danger. 428 U.S. at 369, 96 S. Ct. at 3097, 49 L. Ed. 2d at 1005. In holding that such action was ...