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State v. Lund

Decided: May 23, 1990.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS E. LUND, DEFENDANT-APPELLANT. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. MICHAEL X. HARRISON, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division.

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

O'hern

The Attorney General informs us in his brief:

One study of State Police officers killed nationwide in the line of duty from September 1976 to September 1982, shows that 40 percent of the troopers killed by gunfire were fatally wounded while making traffic stops.

Of such reality, Chief Justice Hughes spoke some years back:

Such continuing trends would make even more relevant today the prophetic warning of the United States Supreme Court in Terry v. Ohio, [392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] dealing with police exposure and apprehension of harm:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. * * *

This case involves an application of the Terry principles in the context of a highway stop of a vehicle during which a police officer discovered drugs in the motorist's car.

I

The principles that guide us are settled:

Certain fundamental propositions bear restatement at the outset. The Fourth Amendment to the United States Constitution requires the approval of an impartial judicial officer based on probable cause before most searches may be undertaken. E.g., Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 1981, 26 L. Ed. 2d 419, 428, reh. den., 400 U.S. 856, 91 S. Ct. 23, 27 L. Ed. 2d 94 (1970). The same holds true for Article 1, paragraph 7 of the New Jersey Constitution. State v. Ercolano, 79 N.J. 25, 41-42 [397 A.2d 1062] (1979), and cases cited therein. The warrant requirement of these provisions may be dispensed with in only a few narrowly circumscribed exceptions. The prima facie invalidity of any warrantless search is overcome only if that search falls

within one of the specific exceptions created by the United States Supreme Court. Ercolano, supra, 79 N.J. at 42 [397 A.2d 1062]. Where, as here, the State seeks to validate a warrantless search, it bears the burden of bringing it within one of those exceptions. State v. Sims, 75 N.J. 337, 352 [382 A.2d 638] (1978). [ State v. Patino, 83 N.J. 1, 7, 414 A.2d 1327 (1980).]

Because no warrant existed for the search, we must ask under which exception the search may be brought. The problem with this case, as with so many others, is that the search fits neatly into no category, although arguably fitting into several. It partakes of aspects of a "stop," an intrusion less than a search or seizure, as well as a search. Each of these strands of search and seizure law must be considered.

This was not a search incident to an arrest of the recent occupant of an automobile as defined in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (allowing a search of the car's interior as incident to the arrest). Nor was it an automobile exception case, because the officers did not have probable cause to believe the vehicle contained contraband. It has always been recognized that although expectations of privacy in the contents of an automobile are significant, they have never been granted the protection accorded the home. State v. Patino, supra, 83 N.J. at 8, 414 A.2d 1327. Thus, under the automobile exception, police may stop and search a moving vehicle, or one readily movable, when there is probable cause to believe that the vehicle contains criminally-related objects. "The rationale for this exception is grounded in the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectation of privacy in one's vehicle." Id. at 9, 414 A.2d 1327. As a result, an automobile search is justified not by the existence of a warrant but by the circumstances that furnish the officers with probable cause. In State v. Alston, 88 N.J. 211, 440 A.2d 1311 (1981), we stressed the significance of weapons when these are the object of the search because of concern for the safety of the police officers. There we upheld a search of a car that revealed two handguns and a sawed-off shotgun after the police had

seen live shotgun shells when shining a flashlight into the open glove compartment.

Another recognized exception to the probable-cause requirement allows the police to "stop and frisk" when a police officer "has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest * * *." Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968). In that circumstance, the officer's conduct is judged by "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Ibid. 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909. Chief Justice Warren emphasized that the new exception to probable cause was to be applied only in very limited circumstances. He stated that "[t]he sole justification [for the new standard was] the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Id. at 29, 88 S. Ct. at 1884, 20 L. Ed. 2d at 911.

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), the Court upheld, without finding of probable cause, the brief detention or stop of the driver of a car outside his vehicle while the police officer issued a traffic summons. The Court reasoned that the detention involved only an incremental intrusion beyond an initial justified stop. The Court balanced that intrusion suffered by the individual against the heightened danger to the police officer in both dealing with people and automobiles and standing exposed to traffic. Id. at 111, 98 S. Ct. at 333, 54 L. Ed. 2d at 337.

In New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986), the Court authorized a limited search for a vehicle identification number on the theory that because the number is generally visible from outside an automobile, a police officer may reach in and move papers obscuring it from view. The

Court reasoned that the regulatory importance of the number resulted in a diminished expectation of privacy, and therefore police acted properly in moving the papers after they had stopped the car for a traffic violation and the driver had stepped out voluntarily. The plain view doctrine authorized the subsequent seizure of a gun.

Finally, in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), the Court upheld the right of police to conduct a weapons search of the interior of a car when they have a reasonable belief that the motorist is potentially dangerous. In upholding the search, Justice O'Connor's opinion for the Court explained that a search of the passenger compartment of an automobile is "permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Id. at 1049, 103 S. Ct. at 3480, 77 L. Ed. 2d at 1220 (quoting Terry v. Ohio, supra, 392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 906).

We may summarize the essence of these protective principles again in the words of Chief Justice Hughes:

"Our evaluation of the proper balance that has to be struck * * * leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." * * *

Accepting these rules as representing bedrock constitutional law, it remains to apply them to the factual base [of the case]. [ State ex rel. H.B., supra, 75 N.J. at 248, 381 A.2d 759 (quoting Terry v. Ohio, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909).]

II

For purposes of the application of the stated principles to the facts of this case, we may accept generally the statement of facts set forth in the State's Appellate Division brief.

On the clear, dry evening of October 21, 1984, at approximately 6:55 p.m., while routinely patrolling the northbound East Brunswick section of the New Jersey Turnpike, a New Jersey State Trooper noticed a 1978 Toyota with Florida license plates traveling in the center lane in violation of N.J.S.A. 39:4-82 (requiring keeping to right except to pass) and N.J.S.A. 39:4-88 (restricting center lane traffic when lanes are marked). The defendants were driver and passenger in the car. The trooper followed the car for about one mile and then pulled alongside it to make further observations. He then saw that the car, which was still in the center lane, had reflecting materials on the side and rear windows, which he testified was contrary to statute.

As a result of his observation of these traffic offenses, the trooper signaled the driver to stop on the right shoulder of the Turnpike. The trooper then pulled directly behind defendants' car. Before the trooper left his police vehicle, the driver turned around to his left side, toward the back seat, and reached toward the back seat. The trooper's view did not allow him to see what the driver was doing. The trooper approached the passenger side of the vehicle, and as he did so, he saw a cotton windbreaker stuffed into the lower left-hand corner of the back seat in the vicinity of the movement that he had previously observed. He also saw an open travel bag on the rear seat, with a brown paper bag on top of it. The trooper requested the driver's license and registration. The operator, who appeared nervous, produced a Massachusetts license and car-rental agreement but not a car registration. In the trooper's words, the driver "would stop in mid-sentence, his voice was cracking, and [he was] just generally nervous." Observing that the driver "kept looking toward the back seat slightly," the trooper thought, based on his training and experience, that this display of nervousness was unusual for someone who had been stopped for a routine motor vehicle violation. The trooper himself had been shot during such a routine motor vehicle stop about a year before. He then asked the two occupants to step out, after

which he conducted a Terry -type frisk of both that revealed no weapons.

The driver and passenger were then ordered to stand to the right front of their vehicle and were watched by another trooper who in the interim had arrived on the scene. The first trooper returned to the car and removed the jacket. On removing the jacket, the trooper saw a white towel sticking out about five inches from the back seat. When he pulled at the towel, it did not move. He then reached into the crevice of the seat, felt a hard object, and reached "around the back seat" to remove that object, a large manila envelope. The officer said that based on his training and experience, he believed that the object in the envelope was a weapon or a controlled dangerous substance. When he opened the envelope he found another hard object inside -- a yellow plastic wrapper around another clear plastic wrapper containing what the officer suspected to be, and has been admitted to be, a large quantity of cocaine.

A Middlesex County indictment charged both Lund and Harrison with possession of cocaine and possession of cocaine with intent to distribute. Each moved to suppress the evidence of the cocaine. The Law Division denied the motion, ruling that under Michigan v. Long, supra, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201, the officer had a reasonable belief that the occupants of the car may have been dangerous and that he therefore had the right to search the passenger compartment for weapons. Thus, the officer properly removed the jacket in the back seat of the vehicle. With regard to the subsequent actions with respect to the towel, he ruled that "a towel is not a container," and held that it was not unreasonable for the trooper to open the envelope to determine whether the object inside was a weapon. Following the denial of the motion, both defendants entered conditional pleas of guilty to the offenses. Both were sentenced to custodial terms. In an unreported opinion the Appellate Division upheld their convictions, ruling that the actions of the police were "reasonable and necessary for protective purposes in these circumstances," and the search

of the containers was reasonable, necessary, and constitutionally proper. We granted the defendants' petitions for certification. 114 N.J. 480, 481, 555 A.2d 606 (1989).

III

No one disputes that not every motor vehicle stop establishes the basis for a car search. The touchstone of decision obviously will be found in the facts of each case. Michigan v. Long, supra, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201, illustrates the principle. Long establishes that officers must possess objective cause before intruding into constitutionally-protected areas. In Long, two sheriff's deputies saw the defendant's car traveling fast and erratically along a lonely and deserted road in the early morning hours. The officers stopped the vehicle and Long, the only occupant, met them at the rear of the car. After Long failed to produce his vehicle registration, the officers noticed that he "appeared to be under the influence of something." Id. at 1036, 103 S. Ct. at 3473, 77 L. Ed. 2d at 1211. As Long headed for the vehicle, apparently to retrieve his registration, the officers followed him and observed a large hunting knife in plain view in the car. The deputies then subjected Long to a Terry protective search and examined the interior of his vehicle by shining a flashlight through a window. As a result of that search, the deputies discovered marijuana, which they seized. The Court concluded, on the basis ...


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