For Affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford and Pollock. For reversal -- Justices Sullivan, Schreiber and Handler. The opinion of the Court was delivered by Clifford, J. Handler, J., dissenting. Justices Sullivan and Schreiber join in this opinion.
[84 NJ Page 349] The issue presented by this appeal is whether the police may constitutionally conduct a warrantless search of an automobile when the driver is stopped on a public highway and arrested pursuant to a lawful arrest warrant. Under the circumstances of this case the question must be answered in the negative. We reaffirm that the scope of a search incident to an arrest must be limited to the person of the arrestee and the area within his immediate control, as mandated by Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
On November 26, 1976 New Jersey State Police Officer Thomas R. Spivey and his partner stationed themselves in the parking lot of a New Brunswick bowling alley. They had obtained a warrant for the arrest of defendant, John Welsh, Jr., eight days earlier and had been informed that he would be at the bowling alley that day to pick up a bowling ball.*fn1 In plain clothes and in an unmarked car, the troopers waited four or five hours for Welsh to arrive. About an hour before the troopers arrested defendant, they called for uniformed State Police to assist them in executing the arrest warrant. When Welsh came out of the bowling alley, he drove his car, a 1975 MG Midget, onto an adjacent highway. Thereupon the uniformed trooper signalled Welsh to stop, and Officer Spivey and his partner pulled up behind Welsh's car. After identifying himself as a New Jersey State Trooper, Officer Spivey read Welsh the arrest warrant, ordered him out of the car, and informed him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After that, according to Spivey's testimony, the troopers "had a problem" with Welsh because of the presence in his car of his two or three year old son. The officers determined that they could avoid any difficulty arising from the boy's presence by allowing defendant to drive his car back to the State Police barracks in Princeton. Accordingly, Spivey "checked the vehicle to make sure there was nothing in the vehicle that would be destroyed in-ride * * *." He searched the interior of the car, looking for "any evidence or any fruits of the crime of bookmaking." Being familiar with the design of the MG Midget, Spivey reached up behind the dashboard and uncovered two envelopes secreted in the maze of wires there. The envelopes contained money and betting slips.
Upon discovery of this contraband, the troopers changed their plan and transported Welsh and his son to the police station in a police car.*fn2 Defendant's car was towed to the station.
Welsh was charged with a variety of bookmaking and conspiracy offenses. His motion to suppress the evidence found in the search of his car was denied. The trial judge reasoned that considering the factual circumstances surrounding the arrest and the nature of the charges, "wisdom would dictate that they search the vehicle first to see if there was contraband in it before allowing him to get back in it."
Pursuant to a plea bargain defendant thereafter pleaded guilty to possession of lottery slips in violation of N.J.S.A. 2A:121-3 and conspiracy to violate the lottery laws contrary to N.J.S.A. 2A:98-1 and -2 (superseded by N.J.S.A. 2C:37-1 to -9 (gambling) and 2C:5-2 (conspiracy)). The remaining counts of the indictment were dismissed on recommendation of the State. Defendant was sentenced to two to three years in New Jersey State Prison.
On appeal the Appellate Division reversed the trial court's denial of defendant's suppression motion, vacated the guilty pleas, and reinstated the dismissed counts of the indictment. In doing so it rejected the State's attempt to characterize the search as incident to an arrest or as reasonable in light of the totality of the circumstances. The court held that the police could not be permitted to benefit from circumstances of their own making, relying on Chimel v. California, supra, and United States v. Griffith, 537 F.2d 900 (7th Cir. 1976). 167 N.J. Super. 233, 236-37 (1979). We granted certification, 81 N.J. 280 (1979), and now affirm.
As we recently observed in State v. Patino, 83 N.J. 1 (1980):
The prima facie invalidity of any warrantless search is overcome only if that search falls within one of the specific exceptions created by the United States Supreme Court. Where, as here, the State seeks to validate a warrantless search, it bears the burden of bringing it within one of those exceptions. [ Id. at 7 (citations omitted).]
In this case the State seeks to justify the search under the "automobile exception" to the Warrant Clause, Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), or alternatively as incident to a lawful arrest pursuant to an arrest warrant, Chimel v. California, supra. We consider the contentions in that order.
The State looks first to the automobile exception to validate the warrantless search here. Under that exception, first articulated in Carroll v. United States, supra, the police can stop and search a moving or readily movable vehicle when there is probable cause to believe that the vehicle contains evidence of criminality. As noted in Patino, supra, the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectations of privacy in one's vehicle furnish the rationales for this exception. 83 N.J. at 9-10; see Cady v. Dombrowski, 413 U.S. 433, 441-43, 93 S. Ct. 2523, 2529, 37 L. Ed. 2d 706, 715 (1973).
As is readily apparent, an essential ingredient of the automobile exception is probable cause to believe a "car contains articles that the police are entitled to seize." Chambers v. Maroney, 399 U.S. 42, 48, 90 S. Ct. 1975, 1979, 26 L. Ed. 2d 419, 426 (1970); see Patino, supra, 83 N.J. at 10. Addressing the "probable cause" requirement, the State contends that the nature of the offenses for which the defendant was arrested-particularly the unlawful possession and sale of lottery slips-"bears ...