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State v. Diloreto

June 28, 2004


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 362 N.J. Super. 600 (2003).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court considers the propriety of a warrantless search and seizure conducted by police officers, which ultimately led to the discovery and retrieval of a loaded ammunition clip and handgun from defendant's person and vehicle.

On March 19, 1998, defendant, John Kenny Diloreto, was reported as a missing person to the police department in Jefferson Township, Morris County. The police, in turn, reported defendant's name to the National Crime Information Center (NCIC). Ultimately, defendant was categorized as an "endangered" missing person. Although defendant's brother telephoned the police two days after his initial call to inform them that his brother was no longer missing, the NCIC's computer system rejected the attempts to cancel the Diloreto alert. Thus, defendant's name remained in the NCIC's system during the period relevant to this appeal.

On April 8, 1998, at about 10:30 p.m., a police officer in Fairfield, Essex County, spotted a vehicle in the parking lot of a hotel facing U.S. Highway 46. The vehicle attracted the officer's attention for various reasons and the officer also knew of reports from that location of automobile thefts and attempted suicides. Using a mobile data terminal (MDT), the officer ran a check of the vehicle's license plate number, which revealed that the vehicle's last authorized driver was listed as an endangered missing person.

The officer called for assistance and a second officer arrived on the scene. At that point, the first officer approached the vehicle, but was not able to see inside of it because the windows were fogged, so he shined his flashlight into it. With the aid of the flashlight, the officer was able to see that the man inside the vehicle appeared to be asleep. The officer knocked on the car window, awakening defendant. Defendant rolled down his window and the officer asked for identification. Defendant produced a driver's license and social security card that matched the name of the missing person.

The first officer returned to his vehicle to confirm the missing persons report. During his absence, the second officer conversed with Diloreto, asking why he had stopped in the parking lot and where he had been headed. After trying to confirm the missing persons report, the first officer returned to defendant's vehicle. At that point, it was raining, and the officers decided to "secure" defendant in the back of the patrol car until they received confirmation on the missing persons report. The stated purpose of doing so was to secure defendant's safety, as well as the officers' safety while the officers completed the "welfare" check. Before placing defendant in the patrol vehicle, the second officer patted Diloreto down. At that point, the officer found an ammunition clip in Diloreto's pocket. Diloreto was then handcuffed for the safety of all involved, and the pat-down search was completed. In response to a specific question, Diloreto then revealed the location in his vehicle of the gun to which the clip belonged. The officers then retrieved a 9mm semi-automatic handgun from that location, which was loaded with another ammunition clip and a bullet inside its chamber.

The officers subsequently transported Diloreto to police headquarters where they learned that the NCIC report had been in error. The gun later was identified as the weapon used in a robbery and murder that had occurred at a gas station early on April 8, 1998, in Pequannock, Morris County. The police informed Diloreto of his rights. After waiving those rights, Diloreto gave a taped statement incriminating himself in the robbery and murder. Fingerprints found at the gas station and other evidence also connected him to the crimes.

Diloreto was subsequently indicted and tried for armed robbery, murder, and weapons possession. The case proceeded as a capital case. After the trial court denied Diloreto's motion to suppress the gun, ammunition, and his statements to the police, defendant pleaded guilty to all charges. Because the penalty-phase jury could not reach a unanimous decision, a non-death verdict was entered. The weapons and felony murder offenses were merged into the murder offense and the trial court sentenced Diloreto to consecutive terms in respect of the murder conviction and one of the armed robbery convictions. Diloreto appealed the denial of his suppression motion as well as the consecutive nature of his sentences.

The Appellate Division affirmed the trial court regarding the sentencing, except that it directed the trial court to correct the parole ineligibility period associated with the murder conviction. Two members of the panel also affirmed the trial court's ruling on the suppression issue.

This appeal is before the Supreme Court as of right in respect of the suppression issue, based on the dissent in the Appellate Division. The Supreme Court denied defendant's petition for certification concerning the consecutive sentence question.

HELD: The police officers in this case, who conducted a warrantless search of defendant's person and automobile in their community caretaker capacity, acted within the boundaries of our federal and State constitutions.

1. Consistent with both the United States Constitution and the New Jersey Constitution, police officers must obtain a warrant from a neutral judicial officer before searching a person's property, unless the search falls within one of the recognized exceptions to the warrant requirement, such as, for example, where officers conduct a field inquiry; where they function in a community caretaker capacity; or where they perceive a risk to their safety. These forms of warrantless conduct do not require the police to demonstrate probable cause or an articulable suspicion to believe that evidence of a crime will be found. Rather, when reviewing these forms of citizen-police encounters, courts employ a standard of reasonableness to determine the lawfulness of police conduct. (pp. 11-14)

2. Because the officers received the NCIC alert before posing their initial questions to defendant, their caretaker role began at the earliest point of personal contact with him. The encounter's early phase also can be viewed as a permissible field inquiry. (pp. 14-16)

3. The officers' decision to place defendant in the police vehicle while they awaited confirmation of the missing person's report, and to pat him down before doing so, was a proper caretaker response to the various pieces of information confronting them. The most important factor confronting the police officers was that they believed defendant to be an endangered missing person contained in an NCIC alert. That understanding, considered in concert with the other factors confronting the officers, is consistent with the belief that defendant was a person at risk, prompting the officers' caretaker role. (pp. 14-18)

4. In the face of the NCIC alert, it would have been reasonable for the officers to believe that defendant was suicidal or in some other danger that required police intervention. Thus, contrary to defendant's assertion, the police did not lack justification to direct him out of his car once he answered their preliminary questions, and their actions in removing defendant from his car so that he could be seen unobstructed by the fogged windows and out of the rain, away from a busy highway, and into the safety of a patrol vehicle, did not exceed the boundaries of the officers' caretaker role. (pp. 18-19)

5. The Court's disposition is not altered by the fact that the officers relied on an erroneous NCIC alert since the NCIC error occurred not in the framework of an intended prosecution, but rather under the protective rubric of the community caretaker doctrine. (p. 17)

6. The officers did not perform the community caretaker function as pretext for a criminal investigation. (pp. 19-20)

7. The most significant factor in the Court's analysis is that the police in this case were responding to an alert regarding an endangered missing person. A search for a missing person is part of the core set of caretaker activities.

8. The officers' inquiry of defendant regarding the whereabouts of the gun and the resulting search of defendant's car constituted proper conduct under the circumstances. In addition to harboring safety concerns as caretakers, the police lawfully accumulated information to meet the probable cause and exigency standards before searching defendant's car. (pp. 21-22)

9. The Court's holding should not be construed as approving wide application of the community caretaker doctrine in this setting. That doctrine remains a narrow exception to the warrant requirement. The Court's disposition in this case is the result of the facts before it, most particularly the NCIC missing person's report, along with the other factors that triggered the officers' caretaker role. (p. 23)

Judgment of the Appellate Division is AFFIRMED.


The opinion of the court was delivered by: Justice Verniero

Argued April 27, 2004

Relying on information supplied by the National Crime Information Center (NCIC), the police in this case believed that defendant was an "endangered" missing person when they discovered him apparently asleep in a parked car. The officers awakened defendant, conversed with him, and then asked him to exit the car. The officers decided to place defendant in their police vehicle while they awaited confirmation of his status as a missing person. Before doing so, they patted down defendant's outer clothing, discovering a loaded ammunition clip in his pocket. That discovery ultimately led to the retrieval of a handgun from defendant's car. We affirm the Appellate Division's judgment upholding the warrantless seizure of those objects against defendant's constitutional challenge.


We derive our summary of facts largely from testimony presented at a suppression hearing conducted by the trial court. On March 19, 1998, defendant's brother reported defendant as a missing person to the police department in Jefferson Township, Morris County. The police, in turn, reported defendant's name to the NCIC, which houses a national network of information authorized by Congress and made available to federal and local criminal justice agencies. See 28 U.S.C. § 534.

In their initial report to the NCIC, the police considered defendant to be "a missing person with involuntary status." That designation was changed after a detective from the county prosecutor's office reviewed it and determined that defendant's status should have been denominated as "endangered." The detective testified at the suppression hearing:

Endangered is the catch-all phrase that the local police departments and the State Police use regarding adult missing persons. The most important thing [is] to get a missing person into the system as missing and if they don't fit any of the other criteria, meaning disability, a catastrophic victim, or a kidnapping, we put them in under the endangered [status].

On March 21, 1998, two days after his initial call, defendant's brother again telephoned the police to inform them that defendant was no longer missing. In response, an officer attempted to remove defendant's name from the NCIC's computer database. The officer did not succeed in that effort apparently because he had entered "John K. Diloreto" into the computer rather than the exact name contained in the database, "John Kenny Diloreto." Because the NCIC's computer system rejected the attempts to cancel the Diloreto alert, defendant's name remained in the system during the period relevant to this appeal.

On April 8, 1998, at about 10:30 p.m., a police officer in Fairfield, Essex County, was on patrol in a marked police car. He spotted a vehicle in the parking lot of a hotel facing U.S. Highway 46. According to the officer, the car attracted his attention because it was parked at an angle between two other vehicles, exhaust was emanating from its tailpipe, and its windows were ...

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