On appeal from Superior Court, Law Division, Bergen County.
Antell, Bilder and Ashbey. The opinion of the court was delivered by Antell, P.J.A.D.
[236 NJSuper Page 538] By our leave granted, the State appeals from an order dated August 19, 1988, suppressing certain contraband material for use as evidence at trial. According to the undisputed facts, defendant's automobile was stopped by State Troopers on the New Jersey Turnpike on October 7, 1987, at 12:36 a.m., after being clocked at 70 m.p.h. in a 55 m.p.h. speed zone. Trooper
McHugh, who had been riding as a passenger in the police car, approached defendant's vehicle and opened the passenger's door to speak to defendant driver. He had made no preliminary attempt to communicate with either of the two occupants whom he observed within the car. As McHugh opened the door, an open can of beer, which had been resting between the front seat and the passenger's door, fell out of the car. Because the presence of an open container of alcoholic beverage in the car constituted a violation of the Motor Vehicle Act, N.J.S.A. 39:4-51a, McHugh looked about the interior of the vehicle for other such containers. That search disclosed on the front seat between the driver and the passenger a clear plastic bag of brownish-green vegetation which McHugh reasonably believed to be marijuana. The trooper ordered the passenger, Anthony Turner, and defendant out of the car, and in the ensuing search of their persons seized unspecified quantities of controlled dangerous substances. The State's evidence does not suggest that Trooper McHugh opened the car door out of concern for his safety or that there was cause for such concern.
Our starting proposition is that although lessened expectations of privacy attend the interior of an automobile, "it remains the law that motor vehicles constitute areas of privacy of persons and effects within the general protection of the Fourth Amendment and our own Constitution." State v. Slockbower, 79 N.J. 1, 7 (1979). See also State v. Patino, 83 N.J. 1, 10 (1980).
The suppression order followed the trial judge's finding that the opening of the car door constituted a warrantless search which did not come within any of the recognized exceptions to the rule requiring the suppression of evidence seized during the course of such a search. See State v. Ercolano, 79 N.J. 25, 42 (1979); State v. De Lorenzo, 166 N.J. Super. 483, 487-488 (App.Div.1979). The State now argues that the trial judge erred in determining that the action of Trooper McHugh in opening the car door was impermissible, that this conduct
violated no constitutional strictures and that the suppression order should therefore be reversed. The State's argument relies substantially upon the decision of the Supreme Court of the United States in Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). It was there held that police officers are free to require drivers to step out of their vehicles whenever they have been stopped for traffic violations. We have already given formal recognition to such authority. See State v. Wanczyk, 201 N.J. Super. 258, 264 (App.Div.1985); State v. Nittolo, 194 N.J. Super. 344, 346 (App.Div.1984). Here, however, the question is not whether police may order occupants out of a car, but whether they act legally by opening a car door without permission, without reasonable warning and without first trying to speak with the driver.
The State argues that the difference between ordering occupants out of a car on the one hand and opening the car door on the other is meaningless and should not control the outcome of this appeal. To support its argument it cites the language of the Supreme Court of Minnesota in State v. Ferrise, 269 N.W. 2d 888 (Minn.1978). There, an officer seized an illegal firearm which he discovered inside a motor vehicle after opening the passenger's door without permission. The Court there rejected any attempted distinction between those facts and the facts considered in Mimms, in the following language:
Operationally then, there is little practical difference between ordering the driver to open his door and get out of his car, on the one hand, and opening the door for the driver and telling him to get out, on the other. [269 N.W. 2d at 890].
We respectfully disagree. There is a significant difference between ordering one out of a car and opening a car door without warning. In the former case, the occupant has an opportunity, before opening the door and leaving the car, to safeguard from public view matters as to which he has a privacy interest. Suddenly opening a car door is unconstitutionally intrusive because the police officer thereby surprises
the occupant when the latter is entitled to consider his private affairs secure ...