On appeal from the Superior Court, Appellate Division, whose opinion is reported at 257 N.J. Super. 483 (1992).
Stein, Wilentz, Clifford, Pollock, O'Hern, Handler, Garibaldi
The opinion of the Court was delivered by
This appeal concerns the scope of a police officer's authority to conduct a search of articles contained in the passenger compartment of an automobile following the arrest of the driver for operating the vehicle while his license is suspended. See N.J.S.A. 39:3-40. The State supports the validity of the search by relying on New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), which held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 775 (footnote omitted). Defendant contends that both the custodial arrest of the driver and the incidental search of the vehicle constituted violations of rights protected by the Fourth Amendment of the United States Constitution and article I, paragraph 7 of the New Jersey Constitution.
Following denial of her motion to suppress evidence, defendant, Eileen Pierce, pleaded guilty to possession of cocaine pursuant to a plea agreement, and the court sentenced her to three years probation. A divided panel of the Appellate Division affirmed the judgment of conviction. State v. Pierce, 257 N.J. Super. 483, 608 A.2d 952 (1992). Defendant appeals to this Court as of right. R. 2:2-1(a).
The facts are essentially undisputed. On August 19, 1989, Officer Rette of the Manalapan Township Police Department
stopped a 1986 Ford van owned and operated by codefendant Nicholas Grass for speeding, the officer having clocked the vehicle's speed at fifty-one miles per hour in a forty-mile-per-hour zone. The other occupants of the vehicle were defendant, Pierce, and codefendant Eugene Bernardo. The officer requested and received Grass's Pennsylvania driver's license and vehicle registration. Officer Rette communicated by radio with his headquarters, and learned that Grass's driver's license had been suspended. The officer then ordered Grass to step out of the van and informed Grass that he was arresting him for driving an automobile while his license was suspended. Officer Rette conducted a pat-down search of Grass, handcuffed him, and placed him in the rear of his patrol car, which he had parked directly behind the van.
Officer Rette returned to the van and ordered Pierce and Bernardo to get out of the vehicle and to produce identification. Pierce stated that she had no identification; Bernardo produced a New Jersey driver's license. The officer conducted a pat-down search of both passengers to determine if they were armed, and found no weapons. By this time, a state trooper and a police officer from another municipality had arrived on the scene to provide back-up.
Officer Rette then entered the van to search its interior while the back-up officers secured Pierce and Bernardo behind the van. He first observed a "large hunting-type knife" on the front console. The officer also saw behind the driver's seat a metal camera case with two latches, one fastened and the other unfastened. He opened the case and found a revolver with "four loaded rounds of .357 magnum ammunition and also two spent rounds." The officer also found in the van "two breed member motorcycle gang jackets and a companion jacket that would be the female of a breed member." Officer Rette testified that the jacket he identified as "the female's jacket * * * had a patch on the back stating 'Nick's property.'" The officer stated that he found in a pocket of that jacket a cellophane packet containing a trace amount of white powder that laboratory tests later showed to be cocaine. The
officer testified that he had searched the van within two or three minutes after he had handcuffed Grass and secured him in the patrol car.
Bernardo and Pierce were arrested and, together with Grass, were indicted for unlawful possession of a weapon without a permit, in violation of N.J.S.A. 2C:39-5b; receiving stolen property (the revolver), contrary to N.J.S.A. 2C:20-7a; and possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1). After the trial court denied Pierce's motion to suppress the evidence secured during the search of the van, Pierce entered a plea of guilty to the cocaine charge and received a three-year probationary term. The court dismissed the charges against Bernardo. Grass pled guilty to possession of a handgun without a permit, and the court sentenced him to four years imprisonment. The Appellate Division affirmed the judgment of conviction following denial of Grass's motion to suppress the fruits of the search of the van. State v. Grass, 250 N.J. Super. 74, 593 A.2d 379 (1991).
On Pierce's appeal from the judgment of conviction entered after the denial of her suppress ion motion, the Appellate Division majority, relying on the decision in Grass, supra, applied the bright line rule of New York v. Belton to sustain the search of the van as incidental to the arrest of Grass for driving with a suspended license. 257 N.J. Super. at 485. The majority cautioned, however, that the bright-line Belton rule combined with the statutory authorization to law-enforcement officers to arrest without a warrant any person violating any provision of Chapter 3 or 4 of Title 39 of the New Jersey statutes, "creates a potential for abuse." Ibid. The majority noted that unrestricted application of the statutory authority to arrest for motor-vehicle violations "would permit a law enforcement officer to convert any prosaic motor vehicle violation into an occasion for the full search of the automobile * * * ." Id. at 485-86. However, based on the seriousness of Grass's motor-vehicle offense, the Appellate Division majority concluded that the officer's arrest of Grass had constituted an appropriate exercise of the statutory
authority to arrest for motor-vehicle violations, thereby validating the contemporaneous search of the van. Id. at 486.
Dissenting, Judge Pressler expressed doubt that New Jersey courts should read Belton to authorize a vehicle search merely on the basis of a lawful arrest of the driver for a routine traffic violation, noting that this Court had never expressed its agreement with so broad a reading of Belton. Id. at 487-88. In addition, Judge Pressler concluded that the arrest of the driver only for driving while on the revoked list, absent any other suspicious circumstances or a reasonable belief that the driver would not respond to a summons, was an unlawful arrest in violation of the Fourth Amendment, rendering the related warrantless search of the vehicle unreasonable and invalid. Id. at 488-93.
Validity of Arrests for Motor-Vehicle Offenses
New Jersey is one of a number of states that have enacted statutes unqualifiedly authorizing police officers to arrest motorists who commit traffic offenses. See Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temple L. Rev. 221, 250 n.188, 251 n.189 (1989) (listing twenty-eight state statutes that unconditionally authorize arrests for traffic offenses and twenty-two state statutes that impose limitations on police authority to arrest for such offenses). N.J.S.A. 39:5-25 provides:
Any constable, sheriff's officer, police officer, peace officer, or the director may, without a warrant, arrest any person violating in his presence any provision of chapter 3 of this Title, or any person, other than a motorman or person having control of a street car or auto bus, running upon a route approved by the Board of Public Utilities, violating in his presence any provision of chapter 4 of this Title. The exemption from arrest of a motorman or person having control of a street car or auto bus, as conferred herein, shall not operate to prevent his arrest, however,
for a violation of R.S. 39:4-50. The arresting officer shall bring any person so arrested before any Judge of the municipal court of the municipality wherein the offense was committed, or before the director at any place designated as his office. If the arrest is for a violation of R.S. 39:4-50, the arresting officer may, if no Judge, clerk or deputy clerk is available, detain the person arrested, either in any police station, lockup or other place maintained by any municipality for the detention of offenders or in the common jail of the county, for such reasonable time as will permit the arresting officer to obtain a warrant for the offender's further detention, which temporary detention shall not exceed 24 hours from the time of the arrest. If the arrest is for a violation of any other provision of this subtitle, the person arrested shall be detained in the police station or municipal court until the arresting officer makes a complaint and a warrant issues.
Any constable, sheriff's officer, police officer, peace officer, or the director may, instead of arresting an offender as herein provided, serve upon him a summons.
Although N.J.S.A. 39:5-25 authorizes both issuance of a summons and arrest for the violations to which it applies, the statute does not contain provisions that suggest whether arrest or a summons is appropriate. Read literally, the statute authorizes police officers to arrest any person who violates, in the officer's presence, any provision of Chapter 3 or 4 of Title 39, an authorization encompassing a myriad of significant as well as trivial traffic regulations. For example, an officer could arrest a motorist whose vehicle was not equipped with adequate license-plate illumination, in violation of N.J.S.A. 39:3-61, or who failed to signal for a turn continuously for the last 100 feet before the turn, contrary to N.J.S.A. 39:4-126, or who parked within fifty feet of a stop sign, a violation of N.J.S.A. 4-138h. Our common experience informs us that arrests for routine motor-vehicle violations occur only rarely, and that the standard police practice is to detain the offending driver only for the interval required for issuance of a summons.
Nevertheless, the issue potentially may be one of constitutional dimension. As Justice Stewart noted in Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973), which involved the validity of a search of the driver's person following an arrest for driving without an operator's license,
it seems to me that a persuasive claim might have been made in this case that the custodial arrest of the petitioner for a minor traffic offense violated his rights
under the Fourth and Fourteenth Amendments. But no such claim has been made. Instead, the petitioner has fully conceded the constitutional validity of his custodial arrest.
[Id. at 266-67, 91 S. Ct. at 492, 38 L. Ed. 2d at 462 (Stewart, J., Concurring).]
Similarly, in United States v. Guzman, 864 F.2d 1512 (1988), in respect of a driver stopped and detained for failing to wear a seat belt, the Tenth Circuit noted that "'there can be no question that the stopping of a vehicle and the detention of its occupants constitute a "seizure" within the meaning of the Fourth Amendment.'" Id. at 1519 (alteration in original) (quoting Colorado v. Bannister, 449 U.S. 1, 4 n.3, 101 S. Ct. 42, 43 n.3, 66 L. Ed. 2d 1, 4 n.3 (1980)). We acknowledge that the Legislature's unqualified authorization of police officers to arrest for any traffic offense constitutes an assertion of the State's police power to promote public safety and the general welfare. See State, Dep't of Envtl. Protection v. Ventron Corp., 94 N.J. 473, 499 (1983). Nevertheless, that exercise of the police power could be invalid if it were applied in a manner "repugnant to the fundamental constitutional rights guaranteed to all citizens." Gundaker Cent. Motors v. Gassert, 23 N.J. 71, 79, 127 A.2d 566 (1956), appeal dismissed, 354 U.S. 933, 77 S. Ct. 1397, 1 L. Ed. 2d 1533 (1957).
Although N.J.S.A. 39:5-25 imposes no limitations on an officer's power to arrest for traffic offenses, other sources of law suggest standards that should inform police officers in the exercise of their statutory authority. For example, Rule 3:3-1 of the Rules Governing Criminal Practice sets forth guidelines to assist a court authorized to issue either a summons or an arrest warrant based on a complaint alleging commission of an offense. Absent a complaint alleging commission of one of the offenses designated by the Code of Criminal Justice ("Code"), the Rule prescribes that a court should issue a summons rather than an arrest warrant unless one of the following conditions exist:
(2) The accused has previously failed to respond to a summons;
(3) The Judge or clerk has reason to believe that the accused is dangerous to himself, to others or to property;
(4) There are one or more outstanding arrest warrants for the accused;
(5) The whereabouts of the accused are unknown and an arrest warrant is necessary to subject him to the jurisdiction of the court; or
(6) The Judge or clerk has reason to believe that the accused will not appear in response to a summons.
Substantially similar standards are contained in Rule 3:4-1 to guide officers who have made warrantless arrests in determining whether to apply to the court for a summons or an arrest warrant in respect of the arrested person. The 1980 Report of the Supreme Court's Committee on Criminal Practice explained that the proposed revisions of Rules 3:3-1 and 3:4-1 establish "a presumption regarding when a summons should issue, subject to rather broad exceptions where there is a need for further investigation, detention or avoidance of public danger." Report, Supreme Court's Committee on Criminal Practice, 105 N.J.L.J. 425, 426 (1980).
Similarly, the American Bar Association, in its Standards for Criminal Justice, advocates that police officers authorized to arrest for misdemeanors issue a summons unless an arrest is necessary to prevent bodily harm to the accused or another or if the accused's conduct or prior record demonstrates a likelihood that the accused will fail to respond to a summons. 2 Standards for Criminal Justice standard 10-2.2 (2d ed. Supp. 1986) (hereinafter ABA Standards). The commentary to standard 10-2.2 observes: "The decision concerning the necessity for arrest should not be left to the untrammeled discretion of the arresting officer. A standard that permits officers to arrest or not according to their personal assessment of a defendant is bound to lead to unequal enforcement of the laws." Id. at standard 10.26. Likewise, the 1987 revision of the Uniform Rules of Criminal Procedure, approved by the National Conference of Commissioners on Uniform State Laws, adopts essentially the same restrictive standards for non-felony arrests as are set forth in the ABA Standards. Unif. R. Crim. P. 211(b); see also Model Code of Pre-Arraignment Procedure § 120.2(4) (1975) (advocating police regulations encouraging use of citations rather than arrest except when necessary in
public interest); Unif. Vehicle Code and Model Traffic Ordinance § 16-202 (1992) (permitting arrest only for serious traffic offenses including vehicular homicide, reckless driving, eluding officer, driving under influence of drugs or alcohol, or failing to stop or give information after accident).
Although the issue appears to be one of first impression in New Jersey, courts in other jurisdictions have acknowledged that detention or arrest may be improper in respect of offenses that pose little threat to public safety. See, e.g., United States v. Mota, 982 F.2d 1384, 1388-89 (9th Cir. 1993) (holding arrest of defendants for selling hot corn-on-the-cob from shopping cart without required license violative of both California law and Fourth Amendment and therefore suppressing evidence obtained from search conducted on basis of unlawful arrests); Guzman, supra, 864 F.2d at 1519-21 (holding that officer's stop, detention, and extensive questioning of defendant and wife based only on defendant's unlawful failure to wear seat belt while driving constituted unreasonable seizure, and remanding to trial court to determine voluntariness of defendant's consent to search); Barnett v. United States, 525 A.2d 197, 199 (D.C. 1987) (holding arrest of defendant for violating traffic regulation prohibiting "walking as to create a hazard" invalid under District of Columbia Code and holding contemporaneous search of defendant that revealed narcotics violative of defendant's Fourth Amendment rights); Thomas v. State, 614 So. 2d 468, 470-71 (Fla. 1993) (holding that custodial arrest of defendant for violating municipal ordinance prohibiting operation of bicycle without bell or gong unreasonable and violative of defendant's rights under Fourth Amendment and Florida Constitution); State v. Martin, 253 N.W.2d 404, 406 (Minn. 1977) (holding invalid under Minnesota Rules of Criminal Procedure arrest of defendant for petty misdemeanor offense of possession of small quantity of marijuana and invalidating contemporaneous search of defendant as violative of Fourth Amendment); State v. Hehman, 90 Wash. 2d 45, 578 P.2d 527, 529 (Wash. 1978) (invalidating arrest of defendant for driving with defective taillight and expired driver's license, holding custodial arrests for minor traffic violations contrary
to state's public policy, and suppressing evidence of illegal drug possession obtained in course of contemporaneous search).
Moreover, a number of commentators have expressed concern about unchecked police authority to effect custodial arrests for minor offenses. Professor LaFave, noting the potential for abuse of that authority, suggests that constitutional limits are necessary:
It may be that on a future occasion the Court will conclude that there are some constitutional limits upon the use of "custodial arrests" as the means for invoking the criminal process when relatively minor offenses are involved. Such a holding would be most desirable, as it would address specifically a current problem of considerable seriousness: the arbitrariness and inequality which attends unprincipled utilization of the "custodial arrest" and citation alternatives. Moreover, it would substantially diminish the opportunities for pretext arrests * * * .
[2 Wayne R. LaFave, Search and Seizure, § 5.2(g), at 465 (2d ed. 1987) (citations omitted).]
Similarly, in an article addressing United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (holding that after arrest of defendant for driving while on revoked list, search of the arrestee's person is reasonable under Fourth Amendment), Professor LaFave focused on the legality of the arrest:
It may well be that the overriding question presented by Robinson is not what degree of search may be conducted incident to arrest, but rather when an arrest itself is warranted so as to call for a full protective search. That is, if a full search for self-protection is necessary only in the event of arrest, then is not such a search unnecessary if the antecedent arrest was unnecessary? * * *
[Wayne LaFave, "Case-By-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 158 (hereinafter LaFave, Case-By-Case Adjudication) (quoting Edward L. Barrett, Personal Rights, Property Rights, and the Fourth Amendment, 1960 Sup. Ct. Rev. 46).]
See also Thomas R. Folk, The Case for Constitutional Constraints Upon the Power to Make Full Custody Arrests, 48 Cinn. L. Rev. 321, 343 (1979) (suggesting that custodial arrests for minor offenses violate Fourth Amendment unless necessary to ensure presence of arrestee at trial or to prevent injury to arrestee or others); Arthur Mendelson, Arrest for Minor Traffic Offenses, 19 Crim. L. Bull. 501, 510-11 (1983) (criticizing as violative of Fourth
Amendment state statutes that authorize custodial arrest for minor traffic offenses, and urging amendatory legislation to restrict police power to arrest); Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221, 273-5 (1989) (concluding that exercise of power to conduct vehicular search based only on arrest for minor traffic offense violates Fourth Amendment, and urging that police authority to arrest for traffic offenses be restricted only to circumstances in which governmental interests require custodial arrest rather than issuance of summons); James B. White, The Fourth Amendment ...