# State v. Bruzzese

> Supreme Court of New Jersey · August 8, 1983 · 94 N.J. 210

URL: https://www.frixlaw.com/law-library/cases/9760806

## Case

- **Full name:** State of New Jersey, Plaintiff-Appellant, v. Joseph P. Bruzzese, Defendant-Respondent
- **Court:** Supreme Court of New Jersey
- **Decided:** August 8, 1983
- **Citations:** 94 N.J. 210; 463 A.2d 320; 1983 N.J. LEXIS 2738
- **Precedential status:** Published
- **Opinion:** Concurrence by Handler
- **Judges:** Garibaldi, Handler, Pollock
- **Cited by:** 276 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part, on other grounds by State v. Xiomara Gonzales(075911), 227 N.J. 77 (2016).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9760806

## How later opinions describe it (automated extraction)

- holding that under Article I, Paragraph 7, “the proper inquiry for determining the constitutionality of a search-and-seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable, without regard to his or her underlying motiv…
- stating that, in order to seize property in plain view, there must be "probable cause to associate the property with criminal activity" (quoting Texas v. Brown, 460 U.S. 730, 741-42 , 103 S. Ct. 1535, 1543 , 75 L. Ed. 2d 502, 513 (1983))
- holding that plain view warrant exception requires officer to “be lawfully in the viewing area,” and that items be discovered “inadvertently” and “immediately apparent” as evidence of crime
- holding that probable cause to search is based objectively on the understanding of an experienced and reasonable police officer

## Opinion text

HANDLER, J.,
concurring.
I join in the Court’s judgment'in this case because I am satisfied that the arrest of the defendant was lawfully authorized, that the search undertaken by the police officers was incidental or ancillary to that arrest, and that the search itself was reasonably limited under all of the circumstances. I write separately because I am somewhat uncomfortable with the Court’s expansive rationale to support the sound result that it reaches. I recognize the distinction that can be drawn as to searches that are “objectively” reasonable and “subjectively” unreasonable, e.g., State v. Guerra, 93 N.J. 146 (1983). However, I question the necessity and wisdom of applying it in this case.
I would be content to sustain the search substantially for the reasons expressed by Judge Milmed in dissenting from the judgment of the Appellate Division below. 187 N.J.Super. 435, 447 (App.Div.1982). It is undisputed that defendant was subject to a lawfully issued warrant for his arrest and that he was arrested under the authority of that warrant. This bedrock fact is accepted in each of the three opinions authored by the judges of the Appellate Division and is not challenged here by the dissenting opinion. Additionally, the police officers had the lawful authority to execute this arrest warrant and arrest the defendant at his home. Further, the execution of the arrest warrant, the actual arrest of the defendant, was reasonable: the police announced their presence, identified themselves, disclosed their purpose to make the arrest, permitted defendant to dress, and even, gratuitously, advised him of the bail he would have to meet in order to secure his release. In short, if the only thing that occurred in this case were the arrest of defendant, the validity of that police action would be incontestable.
*241 The search that was conducted in connection with defendant’s arrest was on any grounds — objective or subjective — totally unexceptional and reasonable. The police had the right to conduct a protective search to assure their own safety in the course of effecting the arrest. State v. Smith, 140 N.J.Super. 368 (App.Div.1976), aff’d o.b., 75 N.J. 81 (1977). The police had the right to accompany the defendant when he went into his house, Washington v. Chrisman, 455 U.S. 1, 6-7 , 102 S.Ct. 812, 816-17 , 70 L.Ed.2d 778, 785 (1982), and to search the areas within defendant’s immediate control. Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 , reh. den., 396 U.S. 869 , 90 S.Ct. 36 , 24 L.Ed.2d 124 (1969).
Judge Milmed commented upon the testimony of the arresting officer, which was found by the trial court to be candid and honest, that one of the reasons for going to defendant’s home was to execute the arrest warrant. 187 N.J.Super. at 449 . Judge Milmed concluded that “Here, the clear objective of the police was to take defendant into custody on the outstanding arrest warrant, deliver him to Cranford pursuant thereto and ‘talk to him’ regarding the burglary at Madan Plastics. That ‘technique’ did not render the initial arrest on the warrant invalid nor any incriminating evidence properly resulting therefrom inadmissible.” Id. at 452-53 (citation omitted). I would underscore Judge Milmed’s reference to the observation made in United States v. Atkinson, 450 F.2d 835, 840 (5th Cir.1971), cert. den., 406 U.S. 923 , 92 S.Ct. 1790 , 32 L.Ed.2d 123 (1972):
This Court is well aware of the fact that police at times do arrest persons on one charge, primarily for the purpose of detaining them while building a case on another charge. We have held that such a technique does not cause the initial arrest, if otherwise legitimate, to become invalid, nor evidence resulting therefrom to be necessarily inadmissible. [ 187 N.J.Super. at 453 n. 8 (emphasis added).]
Further, as Judge Milmed points out, the record in this case does not suggest that in going to defendant’s home the police either planned to conduct a random search or did in fact conduct a random unlimited search. The undisputed, relevant circumstances were that upon defendant’s arrest on the warrant, *242 defendant chose to return to his room after being informed by the arresting officers that they would have to accompany him upstairs, and that in doing so the officers had a clear right to “monitor the movements” of the defendant and “to remain literally at [his] elbow at all times.” Washington v. Chrisman, supra, 455 U.S. at 6-7 , 102 S.Ct. at 816-17 , 70 L.Ed.2d at 785 .
The majority in this case obviously feels the decisional constraints east by the plurality opinion of this Court in State v. Ercolano, 79 N.J. 25 (1979) and the majority opinion in State v. Slockbower, 79 N.J. 1 (1979). I find both cases distinguishable. In Ercolano , the plurality rejected the plain view search of defendant’s automobile on the ground that the police improperly seized the car and consequently did not have the right to be in a position to have a view of the car’s interior. 79 N.J. at 35. I disagreed with its perception of the factual circumstances surrounding the automobile search in that case, not with the general principle that if the police had no right to be where they were, they could not take advantage of the plain view doctrine. 79 N.J. at 71. The point to be made here is that legally and factually the police officers had the right to be where they were — in defendant’s house effectuating a valid arrest warrant — and to seize any evidence of crime that was within their plain view.
I likewise find State v. Slockbower to be distinguishable. There the police arrested defendant on an outstanding warrant. The search that was thereafter conducted, involving the removal, impoundment and search of the vehicle, was not valid. Its invalidity, however, did not turn on the “pretextual” nature or illegality of the arrest, but simply upon the unreasonableness of the initial automobile search, see, eg., State v. Patino, 83 N.J. 1 (1980), and the subsequent impoundment of the automobile, see, e.g., State v. Mangold, 82 N.J. 575 (1980). Thus, regardless of whether the arrest was made in good faith or not, the resultant automobile search was not sustainable. Ibid. Upon similar reasoning, State v. Seiss, 168 N.J.Super. 269 (App.Div.1979) is also distinguishable. There the search was invalid not because *243 the arrest made pursuant to an outstanding warrant was “pretextual” and therefore invalid, but because the ensuing search was not ancillary to that arrest; it clearly went beyond the bounds that confine a search incidental to a valid arrest. In this case, however, the search was clearly incidental to the arrest of the defendant. The arrest was based on lawful authority and serves as a valid predicate for the contemporaneous ancillary search.
Like reasoning impelled the dissent in State v. Welsh, 84 N.J. 346, 356 (1980) (Handler, J., dissenting), which considered the search in that case to be valid. The difference between the majority and dissent in Welsh was primarily factual rather than principled. The dissent believed, as did the majority, that the police had properly placed defendant under arrest. It was also of the view that by permitting the defendant to return to his automobile so he could drive it to police headquarters with his young son, the police were acting reasonably and responsibly in exercising custodial authority over the defendant. The majority did not share that view of those factual circumstances. However, upon the premise that custodial authority was being reasonably exercised, the search there undertaken was incidental to that procedure and was properly limited in its extent and duration. I am sure that if the majority of the Court in Welsh had been able to conclude that the custodial handling of the defendant were otherwise proper and reasonable, it would have sustained the search. Conversely, had the dissenters believed that either the arrest or the custodial treatment of defendant was invalid or unreasonable, they would have concluded, with the majority, that the resultant search would have been derivatively tainted. 1
*244 Accordingly, I conclude that the principles to be invoked in this case are well established. The arrest was itself valid, the search was incidental to that valid arrest, and it was reasonably undertaken. For these reasons, I concur in the judgment of the Court.
Justice CLIFFORD joins in this concurring opinion.
The result in State v. Welsh, a four-to-three decision, has now been effectively superseded, e.g., New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981); see State v. Esteves, 93 N.J. 498 (1983). Similarly, the search of the automobile upon the arrest of the defendant in State v. Slock *244 bower would now be considered valid. E.g., New York v. Belton, supra; see State v. Esteves, supra; State v. Alston, 88 N.J. 211 (1981).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760806. Public record. Not legal advice.