On appeal from Superior Court of New Jersey, Law Division, Union County, (Docket No. A-1375-87T5) and Chancery Division, Family Part, Union County (Docket No. A-1376-87T5).
J. H. Coleman and O'Brien. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
This appeal raises the question of when is a search of an automobile incident to a lawful arrest after the arrestee and other occupants are no longer inside the motor vehicle. The Law Division suppressed the use of evidence seized because the search was conducted pursuant to an administrative policy and not as an incident to a lawful arrest. We now affirm.
Defendant Drake Barksdale, Curtis McKoy and Joyce Fries were indicted under Union County Indictment No. 87-07-0828 for possession and possession with intent to distribute cocaine (crack) on April 8, 1987. Defendant Barksdale filed a motion pursuant to R. 3:5-7 to suppress evidence seized in a warrantless search. The motion was granted by the Law Division on October 6, 1987.
A.N.W. was charged in Complaint FJ-20-04519-87W as a juvenile with possession and possession of crack with intent to distribute on April 8, 1987. The juvenile filed a pretrial motion to suppress evidence seized in a warrantless search. A hearing on the motion was commenced on June 29, 1987. That day's hearing was closed without a decision on the motion. The hearing was continued on October 8, 1987 at which time the judge indicated that during the interim he learned that the Law Division had granted a suppression motion filed on behalf of an adult accomplice based on identical facts. The Family Part Judge applied State v. Gonzalez, 75 N.J. 181 (1977) and granted A.N.W.'s suppression motion. The judge also dismissed the Complaint FJ20-045-19-87W.
The State was granted leave to appeal both of the suppression orders. We consolidated these appeals. We now affirm the suppression orders.
The facts are not complicated. On April 8, 1987, Peter Davis, a Springfield police officer, stopped a motor vehicle on Route 22 for operating without headlights. Curtis McKoy was the owner and operator of the motor vehicle. Four passengers were in the car at the time: Joyce Fries was the front passenger, Drake Barksdale, A.N.W. and B.W. were rear passengers. McKoy was asked for his driver's credentials. He stated that they were in the trunk. The policeman asked McKoy to get them from the trunk. While McKoy was looking in the trunk for his credentials, Detective Judd Levenson and Lieutenant Hietala arrived on the scene. A computer check on McKoy's driving record revealed that his New Jersey driver's license had been suspended. Officer Davis arrested McKoy for driving while on the revoked list. He also issued a summons for careless driving. McKoy was patted down, handcuffed and placed in the back seat of the patrol car operated by Officer Davis that was parked to the rear of McKoy's vehicle. Officer Davis remained inside or beside his patrol car after McKoy was arrested.
Officer Davis was asked whether his department has "a policy regarding search of vehicles in connection with arrest." His response was "we check the vehicles for contents of the vehicle, so there's no problem in the future of an individual saying something's missing or not." After the assistant prosecutor informed the court that the State was not relying on an inventory search, Officer Davis was asked the following questions to which he responded:
Q Are there any other reasons why you would conduct a search of the interior of the vehicle in connection with an arrest?
A Possible weapons inside the vehicle.
Q When did you make the decision that you were going to search the interior of Mr. McCoy's vehicle?
A When somebody's placed under arrest, we always make a search of the vehicle.
Q And when do you conduct that search?
A After the individual's placed in protective custody, such as in the back of the patrol car.
Q Did you in fact conduct the search of that vehicle right there and then as it sat on the roadway?
A It was in an unsafe position. As I informed you earlier, the vehicle was somewhat into the slow lane of Route 22 and we were beyond the hillcrest, so traffic coming over the hillcrest couldn't see us for more than a hundred feet. It was a tough situation where the car was situated. And since the car was dead, apparently the reason he was driving with no lights on because his alternator was bad and he didn't want to drain the alternator. As I pulled the car over to the side, the car died and it was unable to run again.
Q Who made the decision to move the vehicle?
A Officer Levenson asked Mr. McKoy if it would be all right to push this vehicle into the defense building parking lot off the side of the road into a safe location.
Q And what did Mr. McKoy respond?
A He said it was okay. And the other occupants with Miss Fries at the wheel pushed the vehicle into the ...