On certification to the Superior Court, Appellate Division.
For reversal and reinstatement -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by O'Hern, J.
[93 NJ Page 500] This appeal questions the admissibility of evidence found in the search of the interior of an automobile following discovery of what appeared to be a weapon. The trial court admitted the evidence because its discovery was incidental to the defendant's arrest and because the possible presence of other weapons made
the search reasonable under the circumstances. In an unreported decision, the Appellate Division reversed. In its opinion, the only possible basis for a warrantless search was a search incident to a lawful arrest. It ruled that, although the search may have been lawful under New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), it was bound by State v. Welsh, 84 N.J. 346 (1980), which held that the execution of an arrest warrant justifies only "a search of the arrestee's person and the area 'within his immediate control.'" Id. at 354 (quoting Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694 (1969)). Therefore it found the search unlawful. We granted certification to review that determination. 91 N.J. 541 (1982). Because there was probable cause for the automobile search, we find the search valid and reverse.
On August 31, 1980, the East Brunswick Police dispatched officers to investigate a possible robbery in progress at a local meat market. The dispatch related that a man with a gun was seen in an orange Volkswagen. Upon arriving at the scene the police first went to the store. The shopkeeper told them that no robbery was in progress, and they turned their attention to the car in the parking lot. One officer saw what appeared to be a small handgun between the two front seats and informed his partners. The officers then questioned the store's customers as they exited, including this defendant and another, Holahan. Holahan admitted that the car was his. The police conducted a patdown search of both and asked for identification. Neither had any conclusive identification on his person. Holahan said that his identification was in the car and Esteves said that his was in a knapsack in the car. Both defendants walked to the car accompanied by the police.
When they got to the car, Holahan gave the keys to the police. One officer opened the door and took out what appeared to be a gun. He opened the cylinder, found that it was unloaded, and
held it over his head to show his partner. It turned out later that it was a starter pistol. Another officer began to search the car for the identification. In searching Holahan's shaving kit, the officer found an open film can that contained a foil packet, inside of which were pills. He then found two other pills in the bottom of the kit. The pills contained diazepam and methaqualone, controlled dangerous substances. In searching Esteves' knapsack, he found dried psilocybe mushrooms, a Schedule I controlled dangerous substance whose active ingredient is chemically related to LSD.
Both defendants were indicted for possession of controlled dangerous substances in violation of N.J.S.A. 24:21-20(a)(1). Holahan was diverted under N.J.S.A. 24:21-27(a)(1).
Esteves moved to suppress the evidence found in the search of the car. At the motion hearing, both officers testified that they did not know until the search was completed that the weapon seized was a starter pistol. The State made no attempt to prove that the starter pistol was a "weapon" under N.J.S.A. 2C:39-1(r) and 2C:39-5 (unlawful possession of weapons). The officer who made the search testified that the primary object of the search was to obtain identification and that he also wanted to be sure there were no other weapons. Neither officer testified that they placed the defendants under arrest, although one testified that the defendants were not free to leave.
The trial court found that no magic words were needed to demonstrate that the defendants were under restraint. In its view the search was justified on grounds of the officers' safety and because it was incidental to what the court viewed as an arrest.
Esteves pled guilty after the judge denied his motion to suppress the evidence. He was sentenced to a term of probation for three years and fined $100, payable to the Violent Crimes Compensation Board. He ...