On certification to the Superior Court, Appellate Division, whose opinion is reported at 217 N.J. Super. 624 (1987).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, and Stein. For affirmance -- Justices O'Hern and Garibaldi. O'Hern, Justice, dissenting. Justice Garibaldi joins in this opinion.
[115 NJ Page 170] We granted certification, 108 N.J. 651 (1987), to review the Appellate Division's affirmance of defendant's conviction for possession of methamphetamine with intent to distribute, contrary
to N.J.S.A. 24:21-19a(1), repealed by L. 1987, c. 106, § 25 (current version at N.J.S.A. 2C:35-15). The conviction was entered on defendant's conditional guilty plea pursuant to Rule 3:9-3(f), after the trial court had denied defendant's motion to suppress the State's use in evidence of certain controlled dangerous substances.
The single question presented in the petition for certification is whether a warrantless search is constitutionally permissible when a police officer, seeking evidence of ownership of an unattended automobile parked not parallel to the curb, enters the unlocked vehicle and looks into a bag left on the front seat, whereupon he discovers illegal drugs. The trial court upheld the search. The Appellate Division affirmed, 217 N.J. Super. 624 (1987). We reverse.
While on duty in a patrol car at about 7:20 p.m. on October 16, 1985, Gloucester Township Police Officer Charles Boyle received a call over the police radio directing him to investigate an anonymous report of a "suspicious" blue automobile parked in front of 109 Garfield Avenue. Arriving in the area, Officer Boyle saw that a blue Volkswagen was the only car in the vicinity. The vehicle was parked with its nose about six inches from the curb and with the rear extending one or two feet from the curb. Apprehensive that the vehicle had been stolen or that the operator had met with foul play, Boyle radioed police headquarters with his location and the Volkswagen's registration number.
Without waiting for a report on the registration number the officer returned to the vehicle, illuminated the interior with his flashlight, and observed an unzippered bag on the front passenger seat. (The bag is frequently referred to in the record and in the opinion of the court below as a "handbag." Defendant corrected the trial court's reference to the container as a "purse," telling the court that "[i]t is not a purse, it is a
cosmetic bag." The court made no specific finding on the type of bag involved, apparently perceiving no significant difference: at one point it denominated the container as "a handbag [or] a cosmetic bag, whatever it may be * * *.") Discovering that the driver's door was unlocked, Boyle entered the vehicle and retrieved the bag, which he "pulled open," as he said, to check for identification of the owner. He did not find any evidence of ownership but did uncover plastic bags containing what he suspected were narcotics. Without looking anywhere else for the vehicle's registration he returned the bag to the front passenger seat, closed the driver's side door, and returned to his patrol car.
Patrolman Boyle then radioed headquarters and requested that Gloucester Township Detective Bakely join him at Garfield Avenue. Before the detective arrived, the dispatcher informed Boyle that the vehicle was registered to defendant, Barbara Hill, 4 Hampshire Road, in the Aerial section of the Township. When Detective Bakely arrived, he too entered the vehicle and discovered a registration and insurance card above the left sun visor. In the meantime the dispatcher sent another officer, Patrolman Shuck, to defendant's residence. Ms. Hill's daughter told Patrolman Shuck that defendant had gone to Atlantic City with her boyfriend, which information was transmitted to Patrolman Boyle. Thereafter, Boyle and Detective Bakely kept the Hill vehicle under surveillance until Ms. Hill returned and started to drive away at 12:05 a.m. Boyle stopped the car and transported Ms. Hill to police headquarters, where her vehicle was searched. The narcotics originally discovered by Boyle were again found, as were additional narcotics in another bag that Ms. Hill had apparently taken with her to Atlantic City and had placed in the car on her return. Defendant was then placed under arrest.
The trial court upheld the entry into defendant's vehicle and the search of her unzippered cosmetic bag or handbag, on the theory that Patrolman Boyle had a duty under the circumstances to search the unoccupied vehicle for evidence of ownership,
and that it was "as reasonable to look into a pocketbook first as it was to look in the glove compartment first." In ...