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State v. Gervasio

Decided: July 19, 1983.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RALPH A. GERVASIO, JR. AND DANA ANN MICHIE, DEFENDANTS-APPELLANTS



On certification to the Superior Court, Appellate Division.

For affirmance -- Justices Clifford, Schreiber, Handler, Pollock and Garibaldi. For reversal -- Chief Justice Wilentz and Justice O'Hern. The opinion of the Court was delivered by Handler, J. Chief Justice Wilentz joins in this opinion. O'Hern, J., dissenting.

Handler

On September 25, 1978 the State Police conducted a routine stop of defendants' car to check for compliance with driver's license and vehicle registration laws and discovered that defendants were transporting 167 pounds of marijuana. Six months later, on March 27, 1979, the Supreme Court in Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660, declared that such random stops of vehicles on the public roads violated the Fourth Amendment of the United States Constitution. At issue in this case is whether the Prouse decision should be applied retroactively to suppress the evidence of marijuana that was uncovered in the events following the stop of defendants' car.

This Court previously addressed this issue in State v. Carpentieri, 82 N.J. 546 (1980), where we determined that the Prouse decision should apply only to those random traffic stops occurring after the Prouse decision. We concluded that "the principles of deterrence underlying Prouse would hardly be fostered by retroactive application to law enforcement actions undertaken in good-faith reliance upon then long-standing legal authority." Id. at 549. We also noted that if Prouse were to apply retroactively, "[t]he consequent encumbering of an already overburdened judiciary would operate only to the detriment of the administration of justice." Id. at 549-50.

The central question presented in this appeal is whether the Carpentieri decision remains vital in light of the Supreme Court's recent discussion of the law of retroactivity in United

States v. Johnson, 457 U.S. 537, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982). We now hold that because the Prouse decision represented a clear break with the preexisting state of constitutional adjudication, it need not be given retroactive effect under the terms of the Johnson decision. We therefore affirm the determination in Carpentieri that evidence obtained in random stops occurring prior to March 27, 1979 may be admissible.

I

Early in the morning of September 25, 1978, two State troopers stopped defendants' automobile on the New Jersey Turnpike. The officers testified that they made only "a routine stop" of the defendants' car and that prior to the stop they had not observed any traffic or equipment violations or any suspicious activity. After asking for the driver's license and the automobile's registration papers, one of the troopers smelled marijuana. Defendant Gervasio, the driver, permitted the officer to look in the trunk of the car*fn1 where the officer found five bales of marijuana weighing a total of 167 pounds. Both defendants were indicted for possession of a controlled dangerous substance and possession of a controlled dangerous substance with intent to distribute. N.J.S.A. 24:21-20(a)(4), -19(a)(1).

On June 15, 1979 the trial court heard a motion to suppress the evidence seized as a result of the stop, but reserved judgment pending our decision in Carpentieri. Following our determination in Carpentieri that Prouse should apply only prospectively, the trial court upheld the legality of the license and registration check under the prior law. The court held that the stop was lawful, that the officers thereafter had reasonable

cause to believe the automobile contained marijuana and to seek a warrant, and that defendant's consent to search was therefore valid. The defendants then pleaded guilty to possession of a controlled dangerous substance but appealed the suppression order under R. 3:5-7(d). The Appellate Division affirmed in an unreported opinion. We granted certification. 91 N.J. 266 (1982).

II

United States v. Johnson is the latest in a series of Supreme Court decisions that seek to define when new constitutional rules of criminal procedure should be applied retroactively. The Johnson case posed the question of whether the Supreme Court's decision in Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (warrantless, nonconsensual entry into a suspect's home to make a routine felony arrest is impermissible under the Fourth Amendment) should be applied in all cases on direct appeal. In essence, the Court's analysis in Johnson mandated that Court decisions interpreting the Fourth Amendment be applied retroactively unless the decision represents "a clear break with the past." United States v. Johnson, supra, 457 U.S. at 549, 102 S. Ct. at 2587, 73 L. Ed. 2d at 213 (quoting Desist v. United States, 394 U.S. 244, 248, 89 S. Ct. 1030, 1033, 22 L. Ed. 2d 248, 254 (1969)). When a decision constitutes a sharp break with prior caselaw, prospective application of the new rule is required because of the "reliance by law enforcement authorities on the old standards and [the] effect on the administration of justice of a retroactive application of the new rule." Id. 457 U.S. at 549, 102 S. Ct. at 2587, 73 L. Ed. 2d at 214.

The Johnson decision identified three circumstances in which a ruling represents a clear break with the past:

[s]uch a break has been recognized only when a decision [1] explicitly overrules a past precedent of this Court, or [2] disapproves a practice this Court arguably has sanctioned in prior cases, or [3] overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved. [ Id. at 551, 102 S. Ct. at 2588, 73 L. Ed. 2d at 215 (citations omitted)]

The Supreme Court in Johnson concluded that because "Payton did none of these," ibid., it did not present a clear break. As explained by the Court,

Payton expressly overruled no clear past precedent of this Court on which litigants may have relied. Nor did Payton disapprove an established practice that the Court had previously sanctioned. To the extent that the Court earlier had spoken to the conduct engaged in by the police officers in Payton, it had deemed it of doubtful constitutionality. The Court's own analysis in Payton makes it clear that its ruling rested on both long-recognized principles of Fourth Amendment law and the weight of historical authority as it had appeared to the Framers of the Fourth Amendment. Finally, Payton overturned no longstanding practice approved by a near-unanimous body of lower court authority. [ Id. at 552-53, 102 S. Ct. at 2588-89, 73 L. Ed. 2d at 215-16 (footnotes omitted)]

The Court noted that for nearly a century the Fourth Amendment had been interpreted to "accord[ ] special protection to the home." Id. at 552 n. 13, 102 S. Ct. at 2589 n. 13, 73 L. Ed. 2d at 215 n. 13. It also recognized that prior to the Payton decision warrantless house entries to make an arrest were sanctioned only in 24 of the 50 states and in 2 of the 7 federal circuits that had considered the question. Id. at 553 n. 15, 102 S. Ct. at 2589 n. 15, 73 L. Ed. 2d at 216 n. 15. Consequently, because Payton was not a "clear break" case, it was to apply retroactively to all cases on direct review under the law of Fourth Amendment retroactivity articulated in Johnson.

The decisive question in the current appeal is whether the Prouse decision constituted a clear break in the law under the three-pronged definition of "clear break" articulated in Johnson. Because the practice of conducting random stops of automobiles to verify compliance with driver's license and automobile registration laws was "arguably sanctioned" by the Supreme Court prior to the Prouse decision and, also, was expressly approved by a wide majority of lower courts, we hold that the Prouse decision represented a clear break with the preexisting state of constitutional adjudication under two of the Johnson prongs and should be applied only prospectively.

Prior to the Prouse decision, the Supreme Court had never expressly approved or disapproved random stops of automobiles by state and local authorities for the purpose of ensuring

compliance with driver's license and automobile registration requirements. However, the Court had previously determined the permissibility of random stops of automobiles by immigration authorities seeking to identify and apprehend illegal aliens. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); see United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976) (investigatory stop of automobile at border patrol checkpoint). In Brignoni-Ponce the Court held that under the Fourth Amendment roving border police may not stop a vehicle and question its occupants about their citizenship and immigration status unless the officers possess a reasonable suspicion that the vehicle contains illegal aliens. The Court, however, distinguished between random stops by border patrols to detect illegal aliens and random stops by state and local police to enforce motor vehicle laws. The Court "arguably sanctioned" the latter, writing

[o]ur decision in this case takes into account the special function of the Border Patrol, the importance of the governmental interests in policing the border area, the character of roving-patrol stops, and the availability of alternatives to random stops unsupported by reasonable suspicion. Border Patrol agents have no part in enforcing laws that regulate highway use, and their activities have nothing to do with an inquiry whether motorists and their vehicles are entitled, by virtue of compliance with laws governing highway usage, to be upon the public highways. Our decision thus does not imply that state and local enforcement agencies are without power to conduct such limited stops as are necessary to enforce laws regarding drivers' licenses, vehicle registration, truck weights, and similar matters. [422 U.S. at 883 n. 8, 95 S. Ct. at 2581 n. 8, 45 L. Ed. 2d at 618 n. 8 (emphasis added)]

The signals emanating from the Court seemed clear: investigatory stops of automobiles for the purpose of determining whether the car and driver were entitled to be on the road remained within the arsenal of permissible police practices to ensure highway safety. In fact, prior to the Prouse decision, this language from Brignoni-Ponce was relied upon by several lower courts as evidence that the Supreme Court approved such random investigatory stops. United States v. Jenkins, 528 F.2d 713, 715 (10 Cir.1975); State v. Holmberg, 194 Neb. 337, 231 N.W. 2d 672, 678 (1975); State v. Bloom, 90 N.M. 226, 561 P. 2d 925, 932 (1976) rev'd on other grounds 90 N.M. 192, 561 P. 2d 465 (1977). [94 NJ Page 29] Police texts on constitutional law also relied on this understanding of the authority of law enforcement officers. See, e.g., J. Klotter, J. Kanovitz, Constitutional Law for Police ยง 3.14(b) (3 ed. 1977). This interpretation of the law was further supported by the Court's emphasis in United States v. Martinez-Fuerte, supra, upon the reduced expectations of privacy of an occupant of an automobile, id., 428 U.S. at 561, 96 S. Ct. at 3084-85, 49 L. Ed. 2d at 1130, "the long history evidencing [the] utility" of brief stops for questioning, id. at 560 n. 14, 96 S. Ct. at 3084 n. 14, 49 L. Ed. 2d at 1130 n. 14, and the acceptance by the public of such stops "as incident to highway use." Ibid. See also Brinegar v. United States, 338 U.S. 160, 188, 69 S. Ct. 1302, 1317, 93 L. Ed. 1879, 1897 (Jackson, J., dissenting) reh. den. 338 U.S. 839, 70 S. Ct. 31, 94 L. Ed. 513 (1949) (officials may stop car without probable cause for regulation of traffic, identification where proper and in many other circumstances that do not imply an arrest or charge of crime). This notion of a reduced expectation of privacy in the use of an automobile may be instructively contrasted with the "special protection [accorded] to the home" that was emphasized by the Supreme Court in Johnson in reaching its conclusion that the Payton decision be given retroactive effect. 457 U.S. at 552 n. 13, 102 S. Ct. at 2589 n. 13, 73 L. Ed. 2d at 215 n. 13. Thus, because the police practice invalidated by Prouse was arguably approved by previous decisions of the Court, the Prouse decision should be considered a clear break case under the rules of retroactivity announced in Johnson.*fn2 [94 NJ Page 30] The Prouse decision can also be viewed as a clear break from the prior caselaw because it "overturn[ed] a longstanding and widespread practice . . . which a near-unanimouse body of lower court authority has expressly approved." Johnson, supra, 457 U.S. at 551, 102 S. Ct. at 2588, 73 L. Ed. 2d at 215. We have carefully examined the caselaw in order to determine the degree to which random stops were sanctioned at the time of the Prouse decision. Our survey indicates that a large majority of jurisdictions approved of such random stops prior to the Supreme Court's decision in Prouse.*fn3 Our own caselaw in New [94 NJ Page 31] Jersey, for example, expressly authorized police to make such random stops of automobiles. State v. Gray, 59 N.J. 563, 567 (1971); State v. Kabayama, 98 N.J. Super. 85, 87-88 (App.Div.1967),

aff'd o.b., 52 N.J. 507 (1968); State v. Astalos, 160 N.J. Super. 407 (Law Div.1978). Given the widespread approval of the police practice that Prouse invalidated and the express approval of the practice in New Jersey law, the Prouse decision must be seen to represent a clear break in the law.*fn4

As a clear break from the preexisting constitutional jurisprudence, the Prouse case should be applied only prospectively under the terms of Johnson. This conclusion is entirely consistent with the logic of the Johnson opinion and the continuing public policy objectives of the retroactivity doctrine, namely, a recognition of past good faith reliance by police officers upon an accepted state of the law, the avoidance of administrative upheaval in the adjudication of criminal cases, and the preservation of criminal convictions founded upon fair trials and truthful

determinations of guilt. Johnson emphasized that clear break cases were to be applied only prospectively because of "reliance by law enforcement authorities on the old standards and [the] effect on the administration of justice of a retroactive application of the new rule." Johnson, supra, 457 U.S. at 550, 102 S. Ct. at 2587, 73 L. Ed. 2d at 214. Because law enforcement authorities had justifiably relied upon long-standing legal authority in conducting random vehicle stops prior to the Prouse decision, see State v. Carpentieri, supra, 82 N.J. at 549; J. Klotter, J. Kanovitz, Constitutional Law for Police, supra, and because retrospective application of Prouse would have a detrimental effect upon the administration of justice, State v. Carpentieri, supra, 82 N.J. at 549-50, the Prouse decision should be applied only prospectively to those random stops occurring after March 27, 1979.

III

Accordingly, we decline to apply Prouse retroactively to overturn defendants' convictions. The remaining issues on appeal are essentially factual and raise no important questions of constitutional law requiring us to disturb the conclusions of the lower courts. We therefore affirm the judgment of the Appellate Division.


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