On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Clifford, J. Schreiber, J., concurring. Schreiber, J., concurring in the result.
This appeal presents us with the task of clarifying the scope of the "automobile exception" to the Fourth Amendment requirement that searches be conducted pursuant to a warrant based on probable cause. More particularly, the question to be resolved is whether the primary rationale for this exception -- the inherent mobility of an automobile stopped on an open highway -- dissipates once the vehicle's occupants are arrested and removed from the car. The trial court and Appellate Division read this Court's decision in State v. Ercolano, 79 N.J. 25 (1979), to require the holding that once the occupants of an automobile are arrested for possession of contraband and taken into police custody, the vehicle is no longer readily movable and the police must obtain a warrant before conducting a full search of the passenger compartment for further contraband, even if there existed sufficient probable cause for the search at the scene. We disagree.
On the night of October 23, 1978 Bergen County Police Detectives Marc Fenech and John Schmidig, stationed in an unmarked patrol car, pursued a Buick automobile speeding westbound on Route 46 in Ridgefield Park. During the chase the officers observed three of the four occupants moving about in the vehicle as if attempting to conceal something. After they succeeded in stopping the Buick, the detectives asked the driver for vehicle credentials, whereupon Alston opened the glove compartment, removed a large envelope, and began looking through its contents. Detective Schmidig then shone his flashlight into the open glove compartment and observed three shotgun shells. The four men were asked to exit from the vehicle. The officers patted them down for weapons but found none on their persons. Detective Fenech then returned to the Buick to retrieve the shotgun shells while his partner remained at the rear of the car with the four occupants.
Detective Fenech opened the front passenger door of the vehicle, reached into the open glove compartment and took the shells. In the process, Fenech observed an opaque plastic bag
lying on the floor, protruding about twelve inches from under the front passenger seat, and covering what appeared to be a long, thin object. The detective reached down and felt the protruding end of the bag. Because the object "felt like a gun," he picked it up, opened the bag, and discovered that it was indeed a sawed-off shotgun. Thereupon the four occupants of the vehicle were placed under arrest, advised of their rights and handcuffed. A further search of the vehicle uncovered additional weapons secreted in the passenger compartment -- a revolver in a holster under the front seat, and a .38 caliber revolver, fully loaded, wedged in a crevice between the top and bottom halves of the back seat.
After the weapons had been removed, the contents of the vehicle were inventoried and the vehicle itself towed from the scene. The four defendants were taken to police headquarters and charged under N.J.S.A. 2A:151-41 with the unlawful carrying and possession of the three weapons seized from the car. Defendant Alston was also issued summonses for speeding and for driving with a suspended license.
The trial court granted defendants' motions to suppress the three weapons obtained in the warrantless search of the car.*fn1 On appeal the Appellate Division reversed the trial court's order suppressing the shotgun found under the front seat, but affirmed the suppression of the two revolvers seized after defendants had been placed under arrest. In regard to the shotgun the court below held that "once the officers observed the live shotgun shells, reasonable precautions for their own safety justified their ordering defendants out of the car, looking into it cursorily and unwrapping the object observed protruding from under the seat which had the appearance of being a firearm,"
citing State v. Kennedy, 134 N.J. Super. 454 (App.Div.1975). Regarding the two handguns, however, the Appellate Division read Ercolano to require that a warrantless search of a car cannot be justified under the automobile exception to the warrant requirement unless both probable cause and sufficient exigent or exceptional circumstances exist. It held that "once the defendants were out of the car, their persons searched, and they were placed under arrest and handcuffed, there were no longer any exigent or exceptional circumstances present justifying the warrantless search of the vehicle."
We granted the State's motion for leave to appeal the Appellate Division's affirmance of the trial court order suppressing the two revolvers, but denied the defendants' cross-motion for leave to appeal the reversal of the order suppressing the shotgun. Therefore, this appeal involves only the State's challenge to the suppression of the two handguns, the fruits of the post-arrest search. Because we find that the officers conducted a valid automobile search, we now reverse and remand for trial.
As a preliminary matter the Attorney General, as amicus curiae, argues that the defendants lacked the legitimate or reasonable expectation of privacy in the particular areas of the vehicle searched necessary to confer "standing" to challenge the warrantless search as a violation of personal rights under the Fourth Amendment.*fn2 There is some debate over whether the
issue is properly before this Court.*fn3 Nevertheless, we believe that the challenge to defendants' standing raises important questions in the administration of criminal justice in this state. Therefore, we address fully this troublesome issue of Fourth Amendment jurisprudence.
Relying on the recent Supreme Court decisions in Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), and United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), the State argues that defendants Barnes, Williams and Khaliq, as mere passengers in an automobile not owned by them, had no standing to challenge the legality of the search of the vehicle, despite any ownership or possessory interest in the weapons seized. As to defendant Alston, the driver of the vehicle and the son of its owner, the State urges that although he may have legitimately possessed the car, the totality of the circumstances does not suggest that he entertained a reasonable expectation of privacy in the particular areas of the vehicle searched.
The underlying facts of Rakas v. Illinois, supra, are not unlike those of the present appeal. In Rakas, the defendants were passengers in an automobile stopped on an open highway searched by law enforcement officials without a warrant. The officers in that case, however, stopped the vehicle on information that it may have been an instrumentality in the commission of an armed robbery. The search in Rakas, conducted after
defendants were ordered from the vehicle, revealed a box of rifle shells in the locked glove compartment and a sawed-off shotgun under the front passenger seat. The defendants' motion to suppress was denied for the reason that defendants, as mere passengers who alleged no property interest in either the automobile searched or the items seized, lacked the requisite standing to bring the motion. On appeal an Illinois appellate court affirmed the defendants' lack of standing and the Illinois Supreme Court declined further review.
In reviewing the case on certiorari, the Supreme Court noted that "Fourth Amendment rights are personal rights which * * * may not be vicariously asserted." 439 U.S. at 133-34, 99 S. Ct. at 425, 58 L. Ed. 2d at 394-95. Thus, a motion to suppress evidence obtained in violation of the Fourth Amendment may be successfully brought only by those persons whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of the incriminating evidence obtained in the search. Id.; see Alderman v. United States, 394 U.S. 165, 171-72, 89 S. Ct. 961, 965, 22 L. Ed. 2d 176, 185-86 (1969). The Court then set forth the appropriate inquiry under its substantive Fourth Amendment doctrine, see supra at 84 n. 2:
[T]he question is whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect. [439 U.S. at 140, 99 S. Ct. at 429, 58 L. Ed. 2d at 399.]
Relying on Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), a case involving a prosecution for certain possessory offenses, the petitioners in Rakas claimed that as passengers occupying the automobile searched, they had standing to contest the legality of the search because they were "legitimately on [the] premises" where the search occurred. 439 U.S. at 142, 99 S. Ct. at 429, 58 L. Ed. 2d at 399-400. Jones, the leading case on the standing issue prior to Rakas, had posited two tests for determination of Fourth Amendment standing. The first was the rule of "automatic standing" in cases where an
essential element of the crime charged is possession of the seized property at the time of the contested search. See 362 U.S. at 263, 80 S. Ct. at 732, 4 L. Ed. 2d at 703. The second was the "legitimately on the premises" test, by which the Court sought to quantify the interest in the searched premises necessary to confer standing. The latter standard took shape in the rule that "anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when the fruits are proposed to be used against him." 362 U.S. at 267, 80 S. Ct. at 734, 4 L. Ed. 2d at 706.*fn4
However, the Rakas Court abandoned Jones 's "legitimately on the premises" standard as the determinative factor in conferring standing because it "creates too broad a gauge for measurement of Fourth Amendment rights." 439 U.S. at 142, 99 S. Ct. at 429, 58 L. Ed. 2d at 400.*fn5 Instead the Court applied the "legitimate expectation of privacy" analysis of Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), which asked whether the area searched was one in which the movant had a legitimate expectation of privacy in the sense of freedom from governmental intrusion. Employing that approach in Rakas the Court rejected the petitioners' claims, concluding that they failed to assert a property or possessory interest in either the automobile searched or the property seized, and the circumstances failed to demonstrate that petitioners could have legitimately
expected privacy in the searched areas of the car in which they were merely passengers. 439 U.S. at 149, 99 S. Ct. at 433, 58 L. Ed. 2d at 404.
Just as Rakas, supra, had done away with Jones 's "legitimately on the premises" standard, Salvucci delivered the final blow to the "automatic standing" rule.*fn6 In Salvucci defendants were charged in a multi-count federal indictment with unlawful possession of stolen mail. The evidence that formed the basis of the indictment had been seized by police during the search, pursuant to a warrant, of an apartment leased by one defendant's mother. The defendants were successful in their motion to suppress, the district court holding that the affidavit supporting the search warrant application was deficient. The First Circuit affirmed, holding preliminarily that respondents, charged with unlawful possession of the evidence seized, were entitled to assert "automatic standing" to challenge the search and seizure under Jones. See United States v. Salvucci, 599 F.2d 1094, (1st Cir. 1979).
The Supreme Court reversed and remanded, overruling the Jones rule of "automatic standing." 448 ...