Appendix — George W. Lewis v. William F. Hyland
Supreme Court brief1977
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Supreme Court, U. & ~-
Iy THE
—_EFILEQ «
|
: me Court af the Huited Sea MICHAEL RODAK, JR., CLERK
Octoser Term, 1977
No.
Pa ie 301
Georce W. Lewis, et al.,
Petitioners,
—V
=
Wun F, Hyzanp, et al.,
Respondents.
APPENDIX TO PETITION FOR CERTIORARI
Frank ASKIN
Larry M. Gross
Rutgers Constitutional Law
Clinic
Rutgers Law School
175 University Avenue
Newark, N. J. 07102
Bruce J. Ennis
Jozrt M. Gora
American Civil Liberties Union
22 East 40th Street
New York, N. Y. 10016
Attorneys for Petitioners
a ——$$—- .. ee
INDEX
Opinion of the United States
Court of Appeals for the
Third Circuit, March 25,1977... la
Judgment of the United States
Court of Appeals for the
Third Circuit, March 25,1977... 36a
Opiniecn of the United States
District Court for the District
of New Jersey, November 13,
BUM Sebotedseceedeesesvccccccccce 388
District Court's Findings of
Fact and Conclusions of Law .... 52a
Supplemental Letter-Opinion of
the United States District
Court for the District of New
Jersey, December 29, 1975 ...... 12la
Final Judgment of the United States
District Court for the District
of ‘lew Jersey, January 14, 1976. 125a
' Opinion of the United States
Court of Appeals for the Third
Circuit, September 28, 1971 .... 129a
Judgment of the United States
Court of Appeals for the Third
Circuit, August 4, 1971 ........ 155a
Opinion of the United States
District Court for the District
of New Jersey, March 16, 1971 .. 158a
ii
la.
Pade OPINION OF THE UNITED STATES COURT.
— OF APPEALS FOR THE THIRD CIRCUIT,
Order of the United States MARCH 25, 1977
District Court for the
District of "lew Jersey,
March ll, 1971 e*eeeeneeeneeeneeee 162a
George W. LEWIS et al., Appellants
in No. 76-1456,
Vv.
William F. HYLAND, Individually and in
his official capacity as Attorney General
of the State of New Jersey, et al.,
Appellees.
Appeal of Peter HOOK et al, in
No. 76-1457.
Nos. 76-1456, 76-1457.
United States Court of Appeals,
Third Circuit.
oe i Argued Dec. 3, 1976.
: Decided March 25, 1977.
As Amended April 19, 1977.
Frank Askin, Larry M. Gross, Rutgers
Constitutional Litigation Clinic, Newark,
N.J., for George W. Lewis et al., Melvin
L. Wulf, American Civil Liberties Union
2a.
Foundation, New York City, of counsel.
William F. Hyland, Atty. Gen. of ".J.,
Trenton, N.J., for appellees in 76-1456
and for appellants in 76-1457.
Stephen Skillman, Asst. Atty. Gen., of
counsel; Erminie L. Conley, Deputy Atty.
Gen., Trenton, N.J., on the brief.
Before ROSENN, FORMAN and GARTH, Circuit
Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
Plaintiffs, representatives of discrete
classes of travelers upon New Jersey roads,
come before us for a fourth time in their
laborious efforts to secure injunctive
relief against the New Jersey State Police
for alleged violations of Fourth Amendment
and other rights.
When this case initially was before us,
we determined that the complaint set forth
facts which, if proved, would justify a
federal equitable remedy. Lewis v. Kugler,
446 F. 2a 1343 (3d Cir. 1971), rev’g in
art 324 F. Supp. 1220 (D.N.J.). Plaintiffs
ave now substantiated (and, indeed aug-
mented) their initial allegations. The
district court's extensive findings of
fact reveal what can only be described as
callous indifference by the New Jersey
State Police for the rights of citizens
using New Jersey roads. Were it not for
the Supreme Court's opinion in Rizzo v.
Goode, 423 U.S. 362, 96 S. Ct. P
3a.
L. Ed. 2d 561 (1976), which was announced
after the district court proceedings had
been concluded,+ our original mandate in
this case, see 446 F. 2d at 1350 supra
would have required that we reverse e
district court's denial of injunctive
relief in light of plaintiffs' demonstra-
tion of numerous violations of their
constitutional rights.
The Supreme Court, however, has
recently given expression to the doctrine
of federal equitable abstention as it
relates to federal court intervention in
local police operations. In light of
Rizzo v. Goode,supra, in which the
Supreme Court reversed this Court's appro-
val of an injunction against widespread
police abuses in Philadelphia, we conclude
that the record of law enforcement abuses
as it appears in this case--dismaying as it
is--will not support federal injunctive
relief.
IT “See *,9.) soeepe v. Housing Auth y
393 w.s. 268, = , we + 3 nostt 4
Ed. 24 474 (1969) ("An appellate court must
apply the law in effect at the time it
renders its decision"). The December 22,
1975 transcript of proceedings before the
district court revealed concern by counsel
as to the outcome of Goode v. Rizzo, 506
FP. 2a 542 (3d Cir. 1974) in the Supreme
Court.
2 See also Conlisk v. Calvin, 424 U.S.
Ae ce. 1093; 47 L. Ed. 2a 307
vacating & remanding 520 F. 2d 1
(7th Cir. 1975).
4a.
I.
One measure of the tortuous procedural
history of this litigation is the fact
that the original complaint was filed in
December 1970--long before the Supreme
Court announced its decision in Rizzo v.
Goode, supra, and indeed, before the
Opinion in Younger v. Harris, 401 U.S. 37,
91S. Ct. 746, 3 L. Ed. 2d 669 (1971),.
in which concepts of equity, comity and
federalism were reviewed.
Plaintiffe here sought injunctive relief
against an alleged "pattern and practice
of unreasonable searches of vehicles and
travelers carried on without probable
cause." Claiming to represent a class of
"persons who travel upon the public toll
roads and highways of the State of New
Jersey" and who suffer such deprivations
at the hands of the state police, and also
claiming to represent a subclass of "persons
of highly individualized personal appear~
ance"--"long-haired highway travelers"--~
suffering similar deprivations because of
their distinctive appearance, plaintiffs
named as defendants state officials and
the membership of the State Police.
ite plaintiffs' detailing of 25 sepa-
cate aiaaeee police-citizen incidents in
17 pages of the original complaint, the
3 “Wamed as defendants were New Jersey's
Attorney General, its Superintendent of
State Police, 14 individual New Jersey
State Troppers and all other State Troopers
participating in the “pattern and oes
of illegal searches of the named plaintiffs.
5a.
district court, after a hearing on plain-
tiffs' motion for a preliminary injuntion,
granted defendants' motion to dismiss. 324
P. Supp. 1220 (D.N.J. 1971). ‘This Court
reversed in part, 446 F. 2d 1343 (3d Cir.
1971), and remanded the case to the dis-
trict court for further proceedings.
The gravamen of this Court's reversal
and remand in 1971 was stated as follows:
If the plaintiffs can establish
that they are subjected to a delib-~
erate pattern and practice of con-
stitutional violations by the New
Jersey State Troopers, we. believe
that they are entitled to appropri-
ate injunctive relief. Persons
who can establish that they are
being denied their constitutional
rights are entitled to relief, and
it can no longer be seriously con-
tended that an action for money
damages will serve adequately to
remedy unconstitutional searches
and seizures.
4 “Applying the then-recent decision in
Younger v. Harris, supra, and its compan-
ion cases, the Court held that those
plaintiffs against whom state criminal
prosecutions were pending could not claim
a right to injunctive or declaratory
relief. See 446 F. 2d at 1348-49. Accord-
ingly, the Court sustained the district
court's dismissal as to 19 of the 27
named plaintiffs.
446 F. 2d at 1350 (footnotes omitted.)>
While we there noted the difficulties in-
herent in providing effective injunctive
relief for citizens without obstructing
the law enforcement duties of the police,®
this problem was not viewed as unsurmount~-
able. If the facts substantiated plain-
tiffs' complaint, the district court was
clearly expected to invoke its "very
broad power"? to “fashion an appropriate
remedy that [would] protect the constitu-
tional rights of citizens, while preserv~
ing the integrity and efficiency of the
law enforcement authorities.”
Pursuant to this directive, the district
court held an evidentiary hearing at which
50 of plaintiffs' witnesses testified.
Plaintiffs renewed their motion for a pre-
liminary injunction; defendants once again
moved to dismiss the complaint or for
entry of judgment in their favor. The
district court judge refused to grant
either plaintiffs' or defendants’ motions,
5 As authority for the propriety of
federal injunctive relief in such circum-
stances, this Court placed principal re-
liance upon Hague v. CIO, 307 U.S. 496,
59 Ss. Ct. 954, 33 L. bd. 1423 (1939), and
Lankford v. Gelston, 364 F. 24 197 (4th
Le en c). These cases have
recently been given a rather different
reading, see Rizzo v. Goode, su ra,423
U.S. at 373-3774 & ne S, 56 S. . 598;
c re id. at 382, 385-86 n. 2, 96 S. Ct.
S58 (Stackeun, J., @issenting).
446 F, 2d at 1351-52.
Id. at 1351.
Td. at 1352.
ono
7a.
reserving decision until the defendants
presented their case. Plaintiffs appealed
from the district court's order of
Poy 28, 1971 denying their motion
or a preliminary injunction. The district
court's denial of an interim injunction
was thereafter sustained by a judgment
orcer of this Court. Lewis v. Kugler, No.
72-1137. (3d Cir. May 6, 1973).
In the interim, the litigation -
tered the first in a Pr of pari
which account for its present procedural
posture. With the case ready for deci-
sion in the district court, the district
court judge who had been presiding over
the hearings died. The litigation was
then transferred, over plaintiffs’ pro-
tests, from Newark to fhe district court
in Camden, New Jersey.” A pre-trial
order was executed specifying that the
case would be tried on the record as it
then stood, supplemented by several addi-
tional witnesses for plaintiffs “whose
testimonies will be representative of
recent incidents of alleged misconduct by
State troopers against 'long-haired
travelers’ on the state's highways." 10
5 This transfer prompted plaintiffs to
seek a writ of mandamus from this Court
requiring Chief Judge Coolahan to vacate
his reallocation order. Plaintiffs'
petition was denied, Lewis v. United
States District Court, ‘Io. 72-2147 (3a
Cir. January 24, 1973).
10 Order of September 13, 1973.
e
Refore this order could be implemented,
the district court judge in Camden, to
whom the case had been reassigned, died.
After reassignment to a third district
court judge, the parties agreed that,
save for several supplementary deposi-
tions, the case should be decided on the
then-existing record. In January 1974
these depositions were taken, and the
case was once again ready for decision.
This time retirement intervened. This
third district court judge to whom the
case was now assigned, assumed senior
status. It was at this time that the
case came before the district court judge
whose order we now review. The parties
again agreed to submit the case on the
record developed to that date, save for
the addition of one affidavit. On that
record, and without additional or live
testimony, plaintiffs again sought a
temporary injunction; once again, that
relief was denied. The district court
then reserved decision on certification
of the putative classes plaintiffs claimed
to represent, indicating that the class
action determination would turn on ifs
resolution of the equitable claims.
ll See Transcript of October 29, 1974
at 12.” Class certification was denied in
the Final Judgment in this case. See
Order of January 14, 1976. In light of
our disposition, we need not consider
the propriety of the denial of class
certification.
9a.
That resolution came on November 13,
1975. The district court issued an- unpub-
lished opinion cataloging 66 separate
controverted highway incidents involving
state troopers and citizens. Of this
number, 34 involved "clear violations of
Fourth and Fourteenth Amendment rights."
The district court judge went on to "take
judicial notice of the fact that a rela-
tively small number of those whose rights
were violated were represented before the
court."
Despite the court's findings of consti-
tutional violations by New Jersey State
Troopers, injunctive relief was denied.
In essence, the district court reasoned
that the number of incidents of police
abuse of citizens' rights, even extra-
polating beyond those proved in this.
case, paled in comparison with the over-
whelming number of routine cpgtacts be-
tween Troopers and travlers. The evi-
dence was found to reveal no "deliberate
pattern and practice” of abuse by respon-
Sible officials; rather, the fault lay in
the “willful and random acts...of a
minority of the Troopers."
In addition, the court found no "sub-
stantial threat" of future violations by
12 The district court opinion observes
that:
"it would be entirely reasonable to
find that there were at least
1,500,000 police contacts with auto-
mobile occupants during the three
year period involved in this case.”
10a.
abusive Troopers. The passage of time, a
general acceptance of diverse life-styles
and appearances and the threat of this
litigation were all accorded a beneficial
effect. In the absence of pressing need,
injunctive interference in police oper-
ations was determined to be unwise.
Still, the district court felt duty-
bound to follow our earlier mandate to
remedy any constitutional violations.
With injunctive relief held to be unavail-
able, the district court, apparently
sua sponte, stated that it would enter-
tain applications for money damages
against those individual Troopers who had
violated the constitutional rights of
named plaintiffs. By an order dated
January 14, 1976, the court awarded
damages totalling $600 against three
individual Troopers.
Plaintiffs appeal from that portion of
the court's final judgment which denied
injunctive relief. They also appeal from
the court's refusal to permit them to add
additional named defendants against whom
they desired an award of money damages.
They also contest the sufficiency of
damages awarded.
13 As discussed in Part III infra, the
court's invitation appears to be the
first and only indication that compen-
satory money damages were embraced or
contemplated as a part of the remedy
sought by plaintiffs.
lla.
Defendants appeal from the court's
award of damages and its denial "
trial on that issue. eee
If.
As we have previously noted, plaintiffs'
demand for injunctive relief encounters a
roadblock of formidable dimensions in
Rizzo v. Goode, supra. In Rizzo, plain-
tiffs represented two classes of
Philadelphia citizens ("minorities," and
citizens generally). They complained of
repeated violations of Fourth and Four-
teenth Amendment rights by the Philadelphia
police--in particular, by two named
officers. A total of 28 alleged incidents
were before the district court, at least
16 of which involved police violations. of
citizens' constitutional rights. Plain-
tiffs there sought injunctive relief,
just as they do here. :
Like the instant case, the district court
in Rizzo found that the incidents, despite
their Timited number, were neither rare
nor isolated; unlike this case, however,
the district court in Rizzo granted plain-
tiffs their requested injunctive relief.
C.O.P.P.A.R. v. Rizzo, 357 F. Supp. 1289
\E.D. Pa. ° efendants were directed
to submit to [the District] Court for :
its approval a comprehensive program for
improving the handling of citizen com-
plaints alleging lice miscond ”
at 1322. 4 ne ae
The Rizzo result was a modified con-
plaint procedure, set forth in "an
12a.
» 14
all-encompassing 14-page document,
which followed ‘the, gistrict no gy tS
gested guidelines. On appeal, 3
Court affirmed, stressing the oo aa
and moderate” nature of the relie agen
granted. Goode v. Rizzo, 506 F. 2 7
547-48 (3d Cir. 1974).
a
The Supreme Court did not agree. By
5-3 Sunteioa. the judgment of ee oer
was reversed. Rizzo v. Goode, -S.
24. 561
362, 96 S. Ct. : Ed.
(1976). Although some have read Mr.
1f 4233 U.S. at 365 n. 2, 00 S. Ct. at 601.
idelines called for: i
7 ma) Appropriate revision of ss
manuals and rules of procedure spei-~
ling out in some detail, in ey
language, the "dos and don‘ts ne 3
permissible conduct in dealing wit
civilians (for example, manifesta-
tions of racial bias, derogatory
remarks, offensive language, ore
unnecessary damage to property and
other unreasonable conduct in exe
offenses; recording and
wrocessing civilian complaints, ree
(2) Revision of procedures aot p
cessing complaints against po a
including (a) ready pean mag See
forms for use by civilians in 1 gi g
complaints against police eres
(b) a screening procedure for e
minating frivolous complaints;
(FN 15 Continued on Next Page)
l3a.
Justice Rehnquist's majority opinion in
Rizzo as the harbinger of a "nullifica-
tion” of the Fourteenth Amendment,
and while the case undoubtedly represents
an extension of the doctrine of Younger v.
Harris, supra, insofar as federal inter-
vention 4n state police practices is con-
cerned,!/ we decline to give Rizzo such
a broad reading. Nonetheless, because we
find the instant case to be controlled by
Rizzo with respect to the proved consti-
tutional violations and the proposed in-
junctive remedy, the narrow holding in
Rizzo must govern the result here.
(PN I5 Continued)
(c) prompt and adequate investigation
of complaints; (d) adjudication of
non-frivolous complaints by an im-
partial individual or body, insulated
so far as practicable from chain of
command pressures, with a fair oppor-
tunity afforded the complainant to
present his complaint, and to the
police officer to present his defense;
and (3) prompt notification to the
concerned. parties, informing them of
the outcome.
357 F. Supp. at 1321. :
16 Note, Rizzo v. Goode: The Burger
Court's Continuing Assault on Federal
Jurisdiction, 30 Rutgers L. nev. 103,148-
17 For other discussions of the Rizzo
decision, see Note, Rethinking Federal
Injunctive Relief Against Police Abuse :
c ng Up e Pieces After Rizzo v.
Continued on Next Page)
—————
l4a.
, ding" and
Although Rizzo discusses ‘stan
“federalism”, i.e., Younger v. Barrs*:
the gravamen of Rizzo is to be found n
its analysis of the district court s
"unprecedented theory of §1983 liability."
423 U.S. 373-77, 96 S. Ct. 598.
Rizzo's §1983 discussion, like its
"standing" discussion, was aimed at ore
failure of plaintiffs to prove the exis
tance of an unconstitutional policy . :
plan adopted and enforced by the officia
defendants. Throughout, the Court ae’
sized the complete absence of any causa
link between the individual police
officers' conduet and the responsible
authorities. Mere invocation of the ;
words “pattern” or “plan" did not suffice
without this causal link. Nor was it
sufficient in Rizzo to have proved 16 to
20 incidents “of constitutional dimen-
sion" where the number of police-citizen
contacts was many times greater.
Rizzo's focus was on the absence of any
evidence (beyond what was dismissed oo.
"lt}Jhe District Court's unadorned rae ng
of a statistical pattern") of peeter pa :
tion by the named defendants in a Tikes
scheme to suppress constitutional r gh s.
Such a plan, once proved, could be en of
joined in federal court. Allee v. Medr °
416 U.S. 802, 815-16, 94 s. . 507
L. Ed. 2a 566 (1974); Ha Vv. ee 433
u.S. 496, 59 S. Ct. 957, 33 Ge eee
(1939); Lankford v. Gelston, 364 F.
TFN 1? Contin
Camden L.J. 530 (1576); The Supreme Comets
1975 Term, 90 Harv. L. Rev. i,
15a.
197, 202 (4th Cir. 1966) (en banc) (en-
joining the "effectuation of a plan con-
ceived by high ranking [police] officials").
The Rizzo Court refused to infer the
existence of a plan of concerted action
from the facts before it. A mere "failure
to act [by responsible authorities] in the
face of a statistical pattern was found
to provide no basis for injunctive relief.
This discussion and holding did not go
uncriticized. Mr. Justice Blackmun, dis-
senting in Rizzo, challenged the major-
ity's narrowing of §1983:
The Court today appears to
assert that a state official i;
not subject to the strictures of
42 U.S.C. §1983 unless he directs
the deprivation of constitutional
rights.
Ante, (423 U.S.] at 375-377 [,96 S. Ct. at
606-607.) In so holding, it seems to me,
the Court ignores both the language of
§1983 and the case law interpreting the
language. Section 1983 provides a cause
of action where a person acting under
color of state law “subjects, or causes
to be subjected," any other person to a
deprivation of rights secured by the
Constitution and laws of the United States.
By its very words, §1983 reaches not only
the acts of an official, but also the acts
18 423 U.s. at 376, 96 5S. Ct. at 606.
16a.
of subordinates for whom he is responsi-
ble. In Monroe v. Pape. 365 U.S. 167
[, 81S. Ge. 473, SL. Ed. 2d 492) (1961),
the Court said that §1983 “should be read
against the background of tort liability
that makes a man responsible for the
natural consequences of his actions," id.,
at 187, (81 S. Ct. at 484,] and that:
"It is abundently clear that one
reason the legislation was passed
was to afford a federal right in
federal courts because, oe
of prejudice, passion, neglect,
iabeseraaa or otherwise, state
laws might not be enforced and the
claims of citizens to the enjoy~-
ment of rights, privileges, and
immunities guaranteed by the
Fourteenth Amendment might be
denied by state agencies.” Id.,
at 180 [, 81 S. Ct. at 480.7
(Emphasis in original.)
423 U.S. at 385, 96 S. Ct. at 610.19
IS Justice Blackmun continued:
I do not find it necessary to reach
the question under what circumstances
failure to supervise will justify an
award of money damages, or whether an
injunction is authorized where the
superior has no consciousness of the
wrongs being perpetrated by his
sub-
ordinates- It is clear that an official
may be enjoined from consciously permit-
ing his subordinates, in the course of
their duties, to violate the constitutional
(FN Continued on Next Page)
17a.
Our earlier remand in the instant case,
Lewis v. Kugler, 446 F.2d 1343 (3d Cir.
1971), Clearly was in harmony with
Justice Blackmun's statements.29 Plain-
tiffs' proofs here are responsive to our
directive in Lewis v. Kugler, but, as
Justice Blackmun's dissent in Rizzo
reveals, the Rizzo Court has changed the
operative standards.
Justice Rehnquist, writing for the
majority in Rizzo, limited federal inter-
vention into state police practices to
those instances where it could be found
that a pervasive pattern or policy of
TFN 15 continued)
rights of persons with whom they deal.
In rejecting the concept that the
official may be responsible under
§ 1983, the Court today casts aside
reasoned conclusions to the contrary
reached by the Courts of Appeals of
10 circuits.
Id. at 385, 96 S.Ct. at 611 (footnotes
omitted).
20 In Lewis v. Kugler, this Court stated
that a § 1983 injunctive remedy would
become appropriate: .
should the plaintiffs establish
that a substantial threat of consti-
tutional violations exists, either
directed by or tolerated Py officials
of the New Jersey State rs or
the State of New Jersey.
446 F.2d at 1351.
18a.
unconstitutional behavior was causally
related to the named official defendants.
He distinguished between this situation
and one where only an unacceptably high
number of incidents was proved, without
the essential causal connection to the
officials in charge. That distinction
is best revealed by his discussion of
§ 1983 in this context:
19a.
the District Court found a
ervasive pattern of intini-
ation in whic e iaw
enforcement authorities sought
to suppress appellees’ consti-
tutional rights. In this
blunderbuss effort the police
not only relied on statutes
- « « found constitutionally
In Hague CIO, supra,] the
pattern of police misconduct upon
which liability and injunctive
relief were grounded was the adopt-
ion and enforcement of deliberate
policies by the defendants there
(including the Mayor and the Chief
of Police) of excluding and removing
the plaintiff's labor organizers and
forbidding peaceful communication
of their views to the citizens of
Jersey City. These policies were ‘
implemented "by force and violence
on the part of individual policemen.
There was no mistaking that the de-
fendants proposed to continue their
unconstitutional policies against
the members of this discrete group.
Likewise, in Allee v. Medrano,
416 U.S. 802 [, Xo , 40
L.Ed.2d 566] (1974), relied upon
by the Court of Appeals and respon-
dents here, we noted that
"(t]he complaint charged
that the enjoined conduct
was but one part of a single
plan by the defendants, an
deficient, but concurrently
exercised their authority
under valid laws in an uncon-
stitutional manner.“ Id., at
812 [, 94 S.Ct., at 2158]
(emphasis added).
The numerous incidents of misconduct on
the part of the named Texas Rangers, as
found by the District Court and summar-
ized in this Court's opinion, established
beyond peradventure not only a “persist-
ent pattern” but one which flowed from an
intentional, concerted, and indeed con-
spiratorial effort to deprive the organi-
zers of their First Amendment rights and
place them in fear of coming back. Id.,
814-815 [, 94 S.Ct. 2199-2200.) a
Respondents stress that the District
Court not only found an "unacceptably
high" number of incidents but held, as
did the Court of Appeals, that "when a
pattern of frequent police violations is
shown, the law is clear that injunctive
relief may be granted.“ 357 F. Supp., at
1318 (emphasis added). However, there
was no showing that the behavior of the
Philadelphia police was different in kind
or degree from that which exists else-
20a.
where; indeed, the District Court found
"that the problems disclosed by the
record... are fairly typical of _
{those] afflicting police departments
in major urban areas." Ibid. Thus,
invocation of the word “pattern” in a
case where, unlike Hague and Medrano,
the defendants are not causally Linked
to it, is but a distant echo of the
findings in those cases. The focus in
Ha and Medrano was not simply on the
n of violations which occurred but
on the common thread running through
them: a “pervasive pattern of intimida-
tion" flowing from a deliberate plan by
the named defendants to crush —~ eee
labor zations. Medrano, a
{, 94 ap eg 2198.}] The District
Court's unadorned finding of a statisti-
cal pattern is quite dissimilar to the
factual settings of these two cases.
The theory of liability underlying the
District Csure*e opinion, and urged upon
us by respondents, is that even without
a showing of direct responsibility for
the actions of a small percentage of the
police force, petitioners' failure to act
in the face of a statistical pattern is
indistinaquishable from the active conduct
coined in Hague and Medrano. Respon-
Gene posit 4 constitutional “duty” on
the part of petitioners (and a correspon-
ding “right" of the citizens of Phila-
delphia) to “eliminate” future police mis-
conduct: a "default" of that affirmative
duty being shown by the statistical a
pattern, the District Court is empower
2la.
to act in petitioners' stead and take
whatever preventive measures are neces-
sary, within its discretion, to secure
the "right" at issue. Such reasoning,
however, blurs accepted usages and
meanings in the English language in a
way which would be quite inconsistent
with the words Congress chose in § 1983
We have never subscribed to these amor-
phous propositions, and we decline to
do so now.
423 U.S. at 374-76, 96 S.ct. at 605-606.
As in Rizzo, the district court here
mace no finding relating the unconsti-
tutional acts to the acts of the official
defendants. To the contrary, the finding
made by the district court--a finding
which has adequate and reasonable support
in the record, see Government of Virgin
Islands v. Gereau, e 40, 144-4
& n. r. 1975), cert. denied, 424
U.S. 917, 96 S.Ct. 1119, 47 L.8d.3a 323
(1976) --is:
there was no deliberate pattern
and practice of violating Fourth
and Fourteenth Amendment rights
on the part of the Attorney
General, the Superintendent, or
the New Jersey State Police as
a whole. Those instances of
illegality were no more than
willful and random acts on the
part of a minority of the Troopers.
This finding was made after proof of
ar e
22a.
66 incidents, 34 of which were found to
involve Fourth and Fourteenth Amendment
violations. Before Rizzo, this number
of violations might have been deemed
sufficient to establish a statistical
pattern, warranting relief by the district
court. However, the now-required addi-
tional element of a "causal relation to
responsible authorities” is fatal to the
relief sought where proof of such a re-
lationship is wanting.
Plaintiffs' evidence here demonstrated
at most an unfortunate insensitivity on
the part of responsible officials toward.)
reports of abuses by individual Troopers.
The department's appareps obliviousness
to citizens’ complaints reinforces an
21 This insensitivity extended in
several instances to departmental awards
being conferred upon individual Troopers,
named as defendants here, for their per-
formance during the very time in which
they instituted flagrantly illegal
searches.
22 Counsel for appellees assured us at
oral argument that departmental disci-
plinary steps against some of the named
Troopers would be taken after resolution
of this lawsuit. With the “obstruction’
of this lawsuit removed, we trust that
these departmental disciplinary actions
will quickly be initiated.
23a.
impression of official indifference. .
Beyond these factors, however, and aside
from the statistical number of incidents
proved, there is no evidence of a causal
link between, on the one hand, either the
State Police hierarchy or any department-
wide directive, and, on the other, the
constitutional violations.
Indeed, any link between responsible
officials and the incidents of abuse is
necessarily more attenuated here than ir
Rizzo. Since the institution of this
suit, the State of New Jersey, has
appointed a new Attorney General, and
the State has had three different Super-
intendents of Police. Plaintiffs' 23
attempt to bridge this gap by affidavit
cannot mask the significance of these _
changes for Rizzo purposes. Where none
of the incidents proved to the district
court's satisfaction occurred under the
regimes of the incumbent "responsible
authorities"--the Attorney General and
Superintendent of Police--we cannot find
the concerted conduct against which
large-scale injunctive relief might be
directed,
The district court's findings of ran-
dom acts on the part of a minority of
Troopers, as well as its finding of "no
deliberate pattern and practice" on the
part of New Jersey officials, bring this
case wholly within the doctrine of Rizzo
23. See Affidavit of Morton Wolfson,
October 16, 1974.
24a.
for purposes of determining the propriety
of injunctive relief. When we consider
these findings, together with the circum-
stance that none of the charged and
proved violations occurred under the
regimes of the present responsible New
Jersey authorities, it is evident that
the district court was correct in denying
injunctive relief, Rizzo, supra 423 U.S.
at 377, 96 S.Ct. 598, and sonpee must
be affirmed in this respect.
34 Rizzo itself says nothing concerning
the propriety of injunctive relief
against the individual Troopers in this
case. However a review of the proceed-
ings including the district court's
findings that there existed no "sub
stantial threat” of future violations
by these Troopers, satisfies us that
the district court judge did not abuse
his discretion in denying an injunction
against individual Troopers. That
finding, combined with the difficulty
of framing an injunction specific enough
to be enforced, yet flexible enough to
allow Troopers to respond with dispatch
and certainty to the exigencies of their
often-dangerous jobs, leads us to the
same conclusion as that reached by the
district court: that individual in-
junctions would be inappropriate on this
record. The district court judge aptly
observed in colloquy with counsel that
it would hardly be appropriate “if every-
(FN 24 continued on next page)
25a.
Itt.
Although the district court judge
refused to grant plaintiffs their re-
quested injunctive relief--correctly, as
our discussion above concludes--he went
(FN 27 continued) — a
time someone were stopped on the New
Jersey Turnpike and had his car searched
by a State Police Officer, or himself
searched, he could gallop in here and
seek to hold the officer in contempt."
Transcript of Hearing of October 29, 1974,
at 6. As counsel for plaintiffs respon-
ded, an order granting such injunctive
relief “would create great difficulties
for the Court." Id. Counsel for plain-
tiffs were similarly hard pressed at
oral argument before this Court, to
suggest the manner in which such an
injunction could be framed against
individual Troopers.
Our agreement with the district court's
refusal to grant individual injunctions
should not be taken to mean that such
relief could never be granted. The dis-
trict court, after stating in its opinion
that individual injunctive relief "would
be inappropriate at this time," went on
to say:
This does not mean, however, that
the court would hesitate to shape
such relief if future misconduct on
the part of the named defendants is
brought to its attention.
26a.
invite those named piaintiffs who
nod eagtenne constitutional deprivations
at the hands of named Troopers to submit
claims for compensatory damages. A con-
sideration of this issue requires that we
put the question of damages in its proper
perspective.
The initial complaint filed by plain-
tiffs expressly sought only —l
and injunctive relief. Paragraph Io
that complaint refers only to *.-s-- a
action seeking declaratory and injunctive
relief." Part VI of the complaint, the
prayer for relief, in Paragraph 1 were,
a declaratory judgment; in Paragraph 2,
a preliminary and prohibitory injunction;
in Paragraph 3, a preliminary and manda-
tory injunction; and in Paragraph 4, a
preliminary and permanent injunction F
prohibiting prosecutions. Paragraph
asks the court to retain jurisdiction,
and Paragraph 6, the final paragraph,
requests “that the court issue any ‘
further relief that it deems just an
reasonable."
‘answer of the defendants included
Pi affirmative defense the doctrine
of unclean hands, which doctrine, if
established, would preclude equitable
relief. None of the proceedings or
subsequent pleadings ever adverted pe
or addressed the damage issue or lega 3
damages. Rather, the overall nature °
the proceeding was at all times recog
nized by the parties, by the various
27a.
district court judges, and by this Court,
as strictly equitable in character.
After this Court's remand in Lewis v.
Kugler, supra, plaintiffs amended their
complaint, t that amendment did not
alter the essential equitable character
of the proceedings. Therefore, the
stipulations into which the parties en-
tered permitted the case to be heard on
the record as developed during the pre-
ceding years. During all of this time,
the plaintiffs never asserted that they
were seeking legal damages. The primary
thrust of, and indeed the only relief
sought by the plaintiffs was the issuance
of injunctions against the practices of
the State Troopers.
It was in this setting that the district
court rendered its opinion of. November 13,
1975, which held that injunctive relief
was unavailable and which for the first
time indicated that money damages could
be obtained against individual Troopers.
It is immaterial whether this issue sur-
faced because the district court judge
sensed the inequity of sending plaintiffs
away empty handed despite their proof of
unconstitutional searches, or because he
misconceived the remedies required by
Lewis v. Kugler. 2° What is material is
25 The award of damages was said to be
responsive to our earlier remand in Lewis
v. Kugler, supra. While we sympathize
(FN 3 SentTaeet on next page)
28a.
that just before closing its opinion the
district court stated:
The question of money damages
remains, Such damages are appro-
priate in actions brought under
42 U.S.C. § 1983. Fisher v.
Cir. 1974). Those named plaintiffs
whose Fourth Amendment rights were
violated may apply to the court
within 30 days of the date of this
opinion for a hearing date for
assessment of money damages. Such.
damages will be awarded where
legally possible.
While we recognize the general availa-
bility of damages in a § 1983 action
where damages have been sought and have
been in issue between the parties,26 we
—
TFN 25 continued) ae
with the district court's desire to afford
plaintiffs some remedy in lieu of equi-
table relief, nothing in our earlier
remand can be read to require an award
of damages. Indeed, the authority which
the district court relied upon (footnote
17, 446 F.2d at 1351) speaks only in
terms of a remedial order. Moreover,
this observation in our opinion followed
a discussion, which negated the effect-
iveness of a damages Foals for police
misconduct. See id. at 1350.
26 See Curtis v. Loether, 415 U.S. 189,
(PN 26 continued on next page)
29a.
have great difficulty in countenancing
the district court's decision to award
damages in the manner in which it did,
after the case was, for all intents and
purposes, at a close.
First, substantiating our belief that
no damages had ever been contemplated by
the parties, it is significant to us that
the plaintiffs themselves recognized that
an amendment to their complaint would be
required to crystallize the money damages
issue and to support a money damages
award. Accordingly, on December 16, 1975,
just weeks after the district court's
opinion was announced, the plaintiffs
sought to amend their complaint to pro-
vide for compensatory and punitive
damages.
The defendants, on the other hand, ap-
parently not having contemplated other
than equitable defenses, thereupon sought
a jury trial for those defendants against
whom damages claims were to be asserted.
This in turn led to additional motions:
the plaintiffs sought to amend their
complaint to designate additional party-
defendants; the defendants, on the other
hand, sought to raise still other de-
fenses.
TFN 26 continued)
194-96, 94 S.Ct. 10°5, 39 L.Ed.2d 260
(1974); Cha v. Kleindienst, 507 F.2d
1246 (7t fe ; Ford v. Breier, 71
F.R.D. 195, 197 (E.D. Wis. 1976).
30a.
December 29, 1975, the district
pe judge filed his memorandum opinion
in which he assessed a total of $600,
damages for reasonable qe age x
Thereafter, on January 14, 1976, a fina
order was entered in this case, which, i
among other provisions, denied the defen
dants a jury trial, denied plaintiffs
their amendments to the complaint, oe
reflected the damage awards which we have
recited. As earlier indicated, it was
from that order that this appeal was taken.
Any fair reading of the protracted pro-
osabiaes in this case must lead to the
following conclusions:
1) that the plaintiffs at no time
canes after the November 1975 opinion
denying injunctive relief ever in-
tended to seek legal damages;
2) that throughout these proceedings
one defendants never contemplated the
possibility of money damages being
awarded against them;
(3) that, had damages been contem-
was awarded
n ar
00 against Trooper Peter Hook; plain-
cite Jadtzey Fogel was awarded $100
against Trooper Hook; plaintiff George
Lewis was awarded $150 against Trooper
John Tanner; and plaintiff Jesse aay
was awarded $250 against Trooper Russe
Hawke.
3la.
plated, appropriate pleadings and
proceedings, including discovery,
would have been utilized;
(4) that, with damages as a possibility,
a jury demand would probably have been
made prior to the district court's
opinion by one, if not both, parties;
(5) that the parties were content to
try the case as an action for equitable
relief; and
(6) that it was not until the district
court judge injected the question of
damages into the case that this issue
entered into the thinking of the
parties.
In such circumstances, and particularly
in light of the seven-year history of
this litigation, we are not about to
interpret the catch-all phrase "and such
other relief . . ." to include a claim
for lecal damages. Cf. Crane Co.v. Amer-
ican Standard, Inc., 450 fF. 2 -
(2d Cir. 1973) .28 While we do concede
28 In Crane, the Court of Appeals for
the Second Circuit concluded that the
right to a jury trial was abrogated when
a suit for purely equitable relief against
a merger was transformed into a suit for
damages by the merger's consummation.
That case, of course, involved federal
securities law, rather than § 1983. More-
over, its result rests upon changed
(FN 28 continued on next page)
32a.
t in many circumstances that phrase
nae be so ‘ned: we decline to give it
that content here.
We also decline to consider the damages
awarded as incidental to equitable relief.
Indeed, we note that iano v. Loether,
415 U.S. 189, 94 S.Ct. " -Ld.
260 (1974), a case involving Section 812
of the Civil Rights Act of 1968 (42 U.S.C.
§ 3612), the Supreme Court said:
if [a] legal claim is joined
of a equitable claim, the
right to jury trial on the
legal claim, including all
issues common to both claims,
remains intact. The right
cannot be abridged char-
acterizing egai cla
as ncidenta to
the
@ relief sought.
1009
5 U.S. at 196 n.1ll, 94 S.Ct. at ’
po Pate Beacon Theatres, Inc. v. Westover,
8
359 U.S. “Ct, 048, 3 L.Ed.
(1959) ; Dairy Queen, Inc. v. Wood 369 2
U.S. 469, ” ’ . .
7 + ’
62). In any event, the equitable
pol Seok by the plaintiffs has not
been afforded here.
TPN 28 continued)
factual circumstances not present here.
(Plaintiffs here certainly were free to
seek legal as well as equitable damages
in framing their initial complaint.)
33a.
This leaves as a last alternative the
possibility of returning the case to the.
district court for jury proceedings in
connection with the plaintiffs' claims.
In normal course, this might well have
been the direction which we would take.
However, as we earlier emphasized, this
case was never started or structured as
a § 1983 damage action. As the district
court judge said in United States v. Pel-
zer Realt Fi) 2. F. Supp. ?
(M.D. Ala. 1974 ’
-D. aff'd r curiam, 537
P.2d 841 (5th Cir. 1576):
While damages, even nominal
damages are proper relief for
a violation of the [Civil Rights
Act of 1968], in the opinion of
this Court, an award of damages,
where none were prayed for or
specifically proved and when
the plaintiffs gave the Defen-
dants no hint that damages were
to be litigated so that the
Defendants might litigate the
issue or consider demanding a
jury, would be a strange twist
of the law in order to accommo-
date the Plaintiff.
A remand for a jury trial within the
framework of the instant case would in
our mind torture this entire litigation
into a proceeding vastly different than
either party had ever intended or con-
templated. Such a remand would also
require that additional proceedings take
place after final disposition of those
Fos
34a.
issues which had legitimately been liti-
gated, which had been considered by the
various district court judges and by this
Court, and which had been ultimately
resolved on a stipulated record. While
we obviously have no objection to any
independent proceeding which may have
been or which still may be brought by a
plaintiff to vindicate his constitutional
rights (by an award of damages) we do not
believe that the instant proceeding is
the appropriate vehicle by which to
achieve that purpose.29 Accordingly, we
are of the view that the district court's
eleventh-hour introduction of the money
damages issue in its disposition of the
relevant issues in this case exceeded its
permissible discretion.
IV.
Having given careful consideration to
the various other contentions on appeal
of the parties, and having concluded
that they are without merit, we will
affirm the district court's order of
January 14, 1976 in all respects except
its award of damages. For the reasons
35 We again note the fact that the dis-
trict court judge who awarded damages
was the fourth district court judge
assigned to this case and that by reason
of the stipulated record, at no time had
the benefit of having the plaintiffs and
the defendants testify before him. While
we do net hold that this factor precludes
an award of damages in an appropriate
case, we cannot ignore it here.
35a.
which we have specified in Part III of -
this opinion, we will direct that, in
this latter respect, so much of the
district court's order as awarded damages
to plaintiffs Ball, Fogel, 3erman, and
Lewis and against Troopers Hook, Hawke
and Tanner be vacated.
V.
So that our holding is not misunder-
stood, we emphasize that we have not
held that an injunction against police
abuses will never lie. Nor have we held
that damages against police officers are
unavailable under § 1983.
What we hold here is tha. in this case,
absent proof of affirmative Involvement
in a pattern and practice of constitu-
tional violations by supervisory officials,
injunctive relief may not issue against
them. ‘’e also hold that, on this record,
an injunction would be inappropriate as
to the named Troopers. Further, given
this record and the manner in which this
case. was structured by the pleadings,
damages that were never sought by the
plaintiffs prior to the district court's
dispositive opinion of November 13, 1975
may not be awarded.
VI.
Having affirmed in part and reversed in
part, we will remand to the district
court for the entry of an appropriate
order consistent with this opinion.
36a.
JUDGMENT OF THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT,
MARCH 25, 1977
mace nw wm nw nw en Semen aera nr
~~
GEORGE W. LEWIS, et al.,
vs.
)
)
No. 76-1456
WILLIAM F. HYLAND, et al.,) USCA 3d Cir:
On Appeal From the Judgment of
the United States District Court
for the District of New Jersey
(D.C. Civil No. 1712-70)
Present: ROSF‘N, FORMAN and GARTH,
Circuit Judges
TUDGMETNT
This cause came on to he heard on the
record from the United States District
Court for the District of New Jersey and
was argued by counsel on December 3, 1976.
On consideration whereof, it is now
here ordered and adjudged by this Court
that the judgment of the said District
Court filed J 14, 1976, be, and the
same is hereby affirmed in all respects
except as to ving Fe award of damages. The
said judgment is hereby reversed insofar
37a.
as it- awarded damages to plaintiffs Bell,
Fogel, Berman and Lewis and against
Troopers Hooke, Hawke and Tariner. The
cause is remanded to the district court
for entry of an appropriate order consis-
tent with the opinion of this Court.
ATTEST:
M. Elizabeth Ferguson
Chief Deputy Clerk
March 25, 1977
38a.
OPINION OF THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY,
NOVEMBER 13, 1975
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CIViL ACTION NO. 1712-70
GEORGE W. LEWIS, et al, :
Plaintiffs, :
Vv. : OPINION
GEORGE F. KUGLER, JR., 3
etc., et al,
$
Defendants.
3
This action has been brought under the
Civil Rights Act of 1871, 42 U.S.C. § 1983
(1964). There are 37 named plaintiffs who
seek to represent a class of individuals.
The defendants are the Attorney General of
the State of New Jersey, the Superintendent
of State Police, 14 named individual State
Troopers, and a class of unnamed State
Troopers. This action has not, as yet,
been certified as a class action. F.R.
Civ.P. 23.
1 in Light of the decision entered today,
the question of certification is moot.
3°a,
The details of this suit are adequately
set forth in the prior published opinions
of the District Court and the Third Cir-
cuit,. and they will not be repeated here.
Lewis v. Kugler, 324 F. Supp. 1220 (D.N.J.
1971), teaates 446 F.2d 1343 (3d Cir. 1971).
Basically, the plaintiffs allege a pattern
and practice of conduct by defendants to
deprive the plaintiffs and their proposed
class of their rights under the Fourth and
Fourteenth Amendments to the United States
Constitution. Specifically, the plaintiffs
allege a program to stop and illegally
search “longhaired travellers" on the basis
of their “highly individualized personal
appearance."
The complaint was filed in December 1970.
The action was dismissed, but the Third
Circuit reversed and remanded. Lewis v.
Rugler, supra. The late Robert Shaw, U.S.
-J., held a complete trial and reserved
decision. Judge Shaw died before render-
ing an opinion. The case was then submitted
to the late John J. Kitchen, U.S.D.J., on
the existing record. Judge Kitchen also
died before rendering a decision. The case
has now been submitted to me for decision
on the trial record compiled before Judge
Shaw as well as some supplemental deposi-
tions and affidavits. 2
The findings of fact and conclusions of
law as to the 66 incidents which were sub-
mitted to the court are contained in the
Appendix to this opinion. In a bare ma-
jority of the incidents, the court has
2 I am happy to report my survival for a
sufficient length of time to file this opinion.
49a.
found that the conduct of the state troop-
ers was illegal in that the searches were
in violation of the Fourth and Pourteenth
Amendment rights of the individual plain-
tiffs involved.
The Fourth and Fourteenth Amendments
require that any search or seizure be
based on a search warrant issued upon
probable cause. There are, however, a
number of exceptions to this general
principle. Some of these exceptions are
predicated on the mobility of the automo-
bile. ,
Perhaps the major exception to the war-
rant requirement is the search by consent.
In Schneckloth v. Bustamonte, 412 U.S. 218
(19 ° Supreme Court explored the
question of consent at some length. The
court rejected the. assertion that the
officer should inform the person he seeks
to search that he has a right to refuse:
* * * We hold only that when
the subject of a search is not
in custody and the State attempts
to justify a search on the basis
of his consent, the Fourth and
Fourteenth Amendments require
that it demonstrate that the
consent was in fact voluntarily
given, and not the result of
duress or coercion ress or
implied. Voluntariness is a
question of fact to be deter-
mined from all the circumstances,
and while the subject's knowledge.
of a right to refuse is a factor
4la.
to be on ge account, the
prosecution is not required to
demonstrate ied Knouledes as
a prerequisite to establishing
a voluntary consent. * * *
(Footnote omitted.) (Emphases
added.) 412 U.S. at 248-249.
The determination of voluntariness must
be made after an examination of the total-
ity of the circumstances. Many of the
illegal searches involyed coerced consent
or absence of consent.
A second exception is found in the land-
mark opinion of Carroll v. United States,
267 U.S. 132 (1925). That case holds that
a police officer may search a readily
movable vehicle if he has probable cause
to believe that it contains contraband or
illegally possessed goods. In such cases,
the mobility of the vehicle is an exigent
circumstance which allows a search without
@ warrant. However, there can be no doubt
that probable cause is still required in
such cases.
Where the police officer has probable
cause to search a vehicle under circun-
stances which do not require a warrant,
he may wait for a convenient time and
3. The New Jersey Supreme Court recently
held that the State must establish knowledge
of the right to refuse under the State Con-
stitution. State v. Johnson, N.J.
(1975). That decision is prospective in
effect.
42a.
place to make the search. Chambers v.
Maroney, 399 U.S. 42 (1970), Fr
Genied 400 U.S. 856 (1970). Thus, in
Chambers, the court held that it was not
unreasonable for a police officer to move
an arrestee's car to the police station
for a search when he could have searched
it at the site of the arrest. There was
no need to obtain a warrant despite the
fact that the exigent circumstances were
obviated by the arrest and removal of the
defendant and the car to police head-
quarters. ’
Another exception is bc inventory search
of an impounded automob . Vv
California, 386 U.S. 58 (agers Pi citing
denied. {fsic] 386 U.S. 988 (1967). How-
ever, there must actually be impoundment
for such a search to be valid. Where a
defendant's car is kept at the police sta-
tion for his convenience, pending his
release or the automobile’s removal by a
friend or relative, an inventory search is
not permitted. Dyke Vv. Paneee implores
ae Co., 391 U.S. " s,
t
right to search for inventory purposes
depends on the relationship of the vehicle
to the offense involved and the nature of
the custody into which the automobile has
been taken.
A limited search without a warrant may
take place incident to a lawful arrest.
Chimel v. California, 395 U.S. 752 (1969),
rehearing denied 396 U.S. 869 (1969). Thus,
incident to a valid arrest, a police officer
may search the ect and the area imme-
Giately surrounding him. This search is
43a.
limited to two purposes. First, the offi-
cer may look for and seize any weapon on
the defendant's person or within his
reach.4 Second, the officer may ascertain
whether there is evidence which the subject
could readily destroy if it were not seized.
Reasonableness is the touchstone of the
limited Chimel type search. While a search
immediately preceding an arrest is incident
thereto if probable cause for the arrest
existed prior to the search,> it is clear
that a search too remote in time or place
may not be incident to the arrest. Thus,
where a search is delayed a few minutes,
but both the car and the arrestee remain
near the scene of the arrest, a search of
the car has been upheld. Adams v. Williams,
407 U.S. 143 (1972). On the other hand,
the Supreme Court has held that a search of
a car soon after the occupants were booked
for vagrancy and the car had been towed to
a@ garage was too remote in time and place.
Preston v. United States, 376 U.S. 364
. mh any event, the reasonableness
of such a search under the Chimel decision
is a question of fact that depends on the
totality of the circumstances.
[see alec Gustafson v. Fisriaa, 414 U.S.
260 (1973); United States v. Robinson, 414
U.S. 218 (1973).
5 United States v. Murra 492 F.2d 178
(9th Cir. 1973), cert. denied 419 U.S. 854
(1974); State v. Gosser, 50 N.J. 438, 236
A.2d 377 (1567), cert. denied 390 U.S. 1035
(1968).
44a.
There is also the "plain view" seizure.
This Seinen does not involve a search,
but is premised on an officer's. seizure of
something which is in his “plain view.
The officer must legally be in a position
to see the thing seized. © Harris v. United ~
States, 390 U.S. 234 (1968).
Finally, there is a limited right to
"stop and frisk” any individual. Although
a full search must be incident to a valid
arrest, a police officer enjoys a4 limited
right to “stop and frisk." When a police
officer has neither a warrant nor probable
cause, he may “stop” an individual if his
on the spot observation indicates to him
that specific and articulable facts and
the reasonable oe aig eo St caplet tga
approaching a person for
investigat possible criminal behavior.
If the officer is justified in believing
that the individual whose suspicious
behavior he is investigating at close
range is armed and presently dangerous to
the officer or others, he may “frisk" for
weapons only. Terry v- Ohio, 392 U.s. 1
(1968).
The court in Terry outlined the degree of .
certainty requir or such a limited
search as follows:
* * * The officer need not be
absolutely certain that the in-
dividual 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
45a.
was in danger. (Citations and
footnote omitted.) And in deter-
mining whether the officer acted
reasonably in such circumstances,
due weight must be given, not to
his inchoate and unparticularized
suspicion or ‘hunch", but to the
specific reasonable inferences which
he is entitled to draw from the
facts in light of his experience.
(Citation omitted.) 392 U.S. at 27.
Under such circumstances, the court held
that the officer might make a search which
is confined in scope to an intrusion reas-
onably designed to discover guns, knives,
clubs, or other hidden instruments usable
in an assault upon the police officer. The
approved procedure involves an initial
frisk of the surface of the individual's
clothing, followed by further invasions
into the garments where something is felt
which might be a weapon. Terry, supra, at
30-31.
Something should be said concerning prob-
able cause. It is well established that a
other facts and inferences. See Sibron v..
State o ork, 392 U.S. 40 (1568);
, 331 F. Supp.
° , a 4 455 F.2d 45
(34 Cir. 1972). Several of the incidents
presented here involved the "furtive
movement" question.
46a.
A mere traffic violation in and of itself
does not give rise to probable cause.
Amador-Gonzalez v. United States, 391 F.2d
JUS (Sth Cir. I968); State Vv. Séanlon, 84
N.J. Super. 427 (App. Div. 1964). Thus, a
search incident to the issuance of a summons
would seem inappropriate. See Rules Govern-
i New Jerse R. 3:3-1. Tf,
eeater the oa? se Involved the use of an
instrumentality,® a search for such instru-
mentality would be appropriate. See United
States v. Smith, 340 F. Supp. 1023 (D. Conn
Tez) 4 state vp cusick: 110 N.J. Super. 149°
(App. Div. 1 appeal after remand 116
N.J. aren. si (APP. ern 1971); Annota~
A.L-R.34 314 (1966). r may ;
search for a vehicle registration which has
not been produced. “aited states v: Brown,
470 F.2¢ 1120 (9th Cir. ; ue Vv.
, 50 N.J. 73, 77 (1967); N.J.S.A.
39:3-29.
After applying the legal principles enun-
ciated above to the facts established in
this case, it is obvious that some of the
New Jersey State Troopers have violated
the precepts of the Fourth and Fourteenth
Amendments. Searches took place where there
was neither consent nor probable cause to
search with or without a warrant. Many of
these incidents involved searches which
were not.even arguably valid. Such nepal
violations of the constitutional rights can
not be tolerated in a free society such as
ours..
6 E.g. a drug or alcoholic beverage.
47a.
However, in order to be entitled to the
type of injunctive relief which is requested
here, the plaintiffs must show that there
is a deliberate pattern and practice of
constitutional violations by the named
officials and the State Troopers. Lewis v.
Kugler, supra, 446 F.2d at 1350. The number
of incidents necessary to show a pattern and
practice depends upon the nature of the
right protected and the nature and number
of the violations of such right. United
States v.' Mintzes, 304 F. Supp. 1305, 1313-
D. > }s
The Fourth and Pourteenth Amendment rights
involved here are among the most fundamental
guaranteed by our constitution.’ The nature
of the vivlations proved must now be deter-
mined. Determination of the existence of a
pattern and practice is more than a question
of numbers. United States v. West Peachtree
Tenth > 2% th Cir.
; States v. Ramsey, 331 F.2d
824, 837 (Sth Cir. 1964) (concurring opin-
ion); United States v. Mintzes, supra.
Of the 66 incidents presented to the
court, 35 have been found to involve clear
violations of Fourth and Fourteenth Amend-
ment rights. The court will take judicial
notice of the fact that a relatively small
number of those whose rights were violated
were represented before the court.
7 As plaintitts note, there might also be
a violation of the right to travel.
Shapiro v. Thompson, 394 U.S. 618 (1969).
48a.
led the State Police, but not the only
pee Bear Bow in this case. approximately
It would
these figures, which involve only one year,
it would be entirely reasonable to find
that there were at least 1,500,000 police
contacts with automobile occupants during
the three year period involved in this case.
The court finds that there was no deliber-
New
ate pattern and practice of violating Fourth
and Fourteenth Amendment rights on the part
of the Attorney General, the Superintendent,
or the Jersey State Police as a whole.
Those instances cf illegality were no more
than willful and random acts on the part of
a minority of the Troopers. ;
The State officials have cate-
ied that there was a
ically den pattern
ond non pm This test was entirely
le. There was also that the
Troopers were trained in search and seizure
9 Defendants’ Exhibit 22.
4%a,
law at their initial training sessions ioe
during yearly refresher courses. There is
In 1 of such clear expressions of
off policy, it would seem unlikely
that there was tacit approval of misconduct
by the responsible officials.
The would exhort the New Jer
State Police to reexamine the ee
fective “ye tp le
complaint proced |
if the State Police is to sg
force its own policy against illegal con-
we = Lee pealper a Mnpsaee $e find
° ‘ Complaint pro-
cedures mandate a finding of pattern ani
|
p
» 446 F.24 at 1351
relief at this stage
is - Pirst, the court is mind-
ful of | agen enunciated the Court
of Appeals its prior neieien.
* * * A federal court should
avoid eS ne dampening
59a.
public interests at stake, and
because of the danger. that the
court could become enmeshed in
endless time-consuming bickering
and controversy. * * * Lewis v.
Kugler, supra, 446 F.2d at 1351.
The nature of the present violation does
not warrant large scale injunctive relief.
Second, the court does not find a “sub-
stantial threat" of future violations on
the part of those Troopers who have been
guilty in the past. The institution of
this suit and the passage of time and the
conapuens. change of life styles and opin-
ions+" have had a beneficial effect on the
problem which is the subject of this liti-
ga’t:ion. Therefore, the court feels that
injunctive relief directed against specific
Troopers would be inappropriate at this
time. This does not mean, however, that
the court would hesitate to shape such
relief if future misconduct on the part of
the named defendants is brought to its
attention. 7
The question of money damages remains.
Such damages are appropriate in actions
brought under 42 U.S.c. § 1983. Fisher v.
Volz, 496 F.2d 333, 346-347 (3d é .
Those named plaintiffs whose Fourth Amend-
ment rights were violated may apply to the
10 The court notes that long hair styles
have become widely accepted with the passage
of time. The court also opines that long
hair is, to a certain extent, going out of
fashion.
Sla.
court within 30 days of the date of this
opinion for a hearing date for assessment
of money. damages. Such damages will be
awarded where legally possible.
In closing, the court wishes to emphasize
that its decision not to grant injunctive
relief should under no circumstances be
taken as approval of the illegal practices
of some of the State Troopers. The atti-
tude evidenced by the Troopers in findings
1, 16 and 38 have no proper place in law
enforcement. Such attitudes do more to
harm the goals of law enforcement than to
renefit it. See Olmstead v. United States,
277 U.S. 438, 485 issenting opinion
of Brandeis, J.). Such conduct cannot be
permitted to continue.
The defendants should submit an appro-
priate order.
/s/ H. Curtis Meanor
H. CURTIS MEANOR
U.S.D.d.
DATED: November 13, 1975.
DISTRICT COURT'S FINDINGS OF FACT
CONCLUSIONS OF LAW
1. On December 1, 1970, plaintiffs
Jeffrey Fogel and Stuart Ball, both of whom
No summons was issued. (T15-21, 25) This
erating so: ees there being no probable
r, consent to, or other proper
basis for it in law. — Fae tae
2. On November 13, 1971, Todd Bowen |
and Michael oe: Sag both school teachers,
were passengers in a car driven Robert
Kennedy, a law student. Attar tavitny off
Route 4 onto Bogart Road, the car was stopped
by State Troopers Callahan ard Heilman.
While Mr. Kennedy left the car to speak
with Trooper Callahan, Trooper Heilman
53a.
—
circled the s vehicle, peering in
from different angles. When Mr. Bown and
Mr. Lockett also got out of the car of
their own volition, Trooper Heilman approached
the oper door and flipped back the back of
the front seat (this was a two-door
vehicle -- Mr. Bowen had left the back of
the front seat tilted forward when he got
out of the car), exposing whatever may have
been on the front seat. Mr. Kennedy was
issued a summons for allegedly making an
unsafe move some 15 to 20 minutes before,
six miles back on the highway, despite
having been told earlier that he was to be
issued a summons for speeding. ((T121-34).
This was an illegal saarch, there being no
arrest involved; nor was there any consent
thereto, or probable cause therefor.
3. On approximately April 19, 1969,
plaintiff Wayne Barrett, a teacher of
mentally retarded children, was driving
with three of his black pupils along the
New Jersey Turnpike. He was stopped by two
State Troopers, one of whom asked him for
his license and registration while the
other orderec the three retarded students
out of the cor. He entered the vehicle and
commenced a thorough search of the entire
inside, including searching the glove com-
partment and pulling out the back seat.
After searching the interior of the car,
the Troopers removed the luggage from the
trunk and searched through the contents
of both Mr. Barrett's luggage and the lug-
gage of the three students. Mr. Barrett
continually objected to both the search
54a.
of the car and the search of the luggage.
No summons was issued or discussed. As a
result of this incident, Mr. Barrett sent
a letter of complaint to the A.C.L.U. He
has since kept his hair trimmed considerably
shorter. (T299-15) This was an illegal
search in its entirety; there was neither
pevenae cause therefor, nor consent there-
Pa Peaks
4. On September 26, 1970, at. approxi-
mately 1:30 a.m., plaintiff Warren lNergenhan
was traveling in his girlfriend's Volks-
wagen bus on Route 4 when he was stopped
hy two State Troopers. One Trooper |
approached on the passenger side and asked
Hergenhan to open that door, which he did.
The other Trooper asked Hergenhan, “Where
did you hide it?" and revealed that when
Hergenhan had passed the Troopers they had
seen him hiding something. Hergenhan .
stated that they must have seen him changing
tapes on the tape deck which was located
under the convenience shelf on the passenger
side. That Trooper then asked for
Nergenhan's license and registration. ‘hen
Hergenhan could not produce the registra-
tion, one Trooper asked Hergenhan to get
out of the car while the other Trooper
entered the vehicle from the passenger
side, produced the registration card from
the convenience tray and handed it to the
other Trooper and continued to search
extensively the inside of the vehicle. At
this point, Mr. Hergenhan protested, ilo
summons was issued. The plaintiff then
attempted to ascertain the identity of the
55a.
Troopers but was unable to do so. He sub-
sequently contacted the A.C.L.U. (T305-10)
Insofar as the Trooper searched for proof
of ownership, the search was valid; but,
once the Trooper had found the car's regis-
tration, any further search would have had
to be based on some other exception to the
warrant requirement. As the furtive
movenent of Hergenhan was not coupled
with any corroborative information, there
was no probable cause for the search
under the law; nor was there consent to
that part of the search occurring after the
registration was found. Thus, this search
was illegal.
5. In the summer of 1969, plaintiff
Hercenhan was exiting from Route 4 at
Grand Avenue in Enalewood when he was
stopped by two State Troopers. ‘Yhile one
Trooper checked his license and registra-
tion and alerted Hergehan to the fact that
one headlight was out, the other entered
Hergenhan's car and used his flashlight
to search through the interior,
including the console between the two
front seats. This was done without
askine Kergenhan's permission. (T314-15)
Hergenhan ultimately received a warning.
This search was illegal as Hergenhan did
not consent thereto, and there was no
probable cause or other legal basis for the
search.
6. On March 15, 1970, plaintiff
John Henry Browne, an attorney, was
ving north on the New Jersey Turn~
a rs a vehicle with California —
anaes plates when he was stopped by a
State Trooper approximately 40 miles
from the Delaware Bridge. After
checking Mr. Browne's license and recgis-
tration, Mr. Browne inquired as to why he
had been stopped, to which the Trooper
responded that it was because he had long
hair, a California license plate and was
likely to be transporting drugs. The ;
Trooper then proceeded, after Mr. Browne's
refusal to give permission, to enter the
vehicle and search its interior. When he
discovered, from the presence of law
books in the back seat, that Mr. Browne
was a law student, the Trooper stopped
the search and left, after apologizing:
No summons was issued. (1T363-73) There
was no probable cause for this search,
nor was there consent or any other legal
basis for it. Thus, it was an illegal
search.
7. On June 4, 1970, plaintiff Allen
Ressler, an attorney, was stopped on the
New Jersey Turnpike near Exit 4 by a State
Trooper in an unmarked car. After
checking the plaintiff's license and
registration, the Trooper asked if he
could search the car. Even though Mr.
Ressler replied that he did not want his
car searched, the Trooper replied, "Well,
I'm going to search it anyhow." He
proceeded to look in the glove compart-
ment and lift up (and inspect underneath)
; oe
: deo is sere ae Sy? eS ye s+ | ~<.
tesa > ete o ee gt te ee A OP} Pe hake Sh oe ee tn ePate TS! 2 eee. 2 oy
Pt, OE, FORO Se cs yl he aN A nee ee on TL ee} - x we oo
« Be ARS yo EX ef Gr ee to : aay “we oR ty er. oes ie oe . ei es) Mal ert E
? ai Biren a ene” ak Sab agi wh Se eee re AS a ys ;
: « ‘ off FT tte FV
~
57a.
both front seats and behind the back seat,
The officer had conceded that Mr. Ressler
and Mr. Blumberg, a passenger in Mr.
Ressler's car, were not under arrest.
Then Mr. Blumberg, also an attorney,
questioned the Trooper's probable cause
for this search. At this point, the
Trooper stopped the search and, upon
learning that Mr. Blumberg was an attorney,
left, after stating that it was his.
policy to protect the citizens from drugs
and arms by stopping and searching long
haired persons even though he knew that
anything he found could not be used as
evidence against them. (T373-78). There
being no consent to or probable cause for
this search, it was an illegal search in
the absence of other legal basis for it.
8. On September 6, 1970, Stephen
Manulkin was stopped by a State Trooper
between the Union Toll Plaza and Exit 148
of the Garden State Parkway. After
checking his license and registration as
part of a "routine check," the Trooper
proceeded, without asking for permis-
sion, to search through the glove com-
partment and the back seat of the car and,
finally, to feel the pants pockets of
the seated Mr. Manulkin. Manulkin did not
protest the search. No summons was issued.
Manulkin contacted the A.C.L.U. a couple
of months later. (T384-88) The search
of the car was illegal as there was no
probable cause for the search and consent
was not even sought. The frisk of Mr.
Manulkin was also improper as there was no
ER ay Re ee eR ee EE eee Mic aaa,
ee pat wit city ¥ ibe aoe oe 8 os : ; ‘y a ;
ee
basis for a reasonable belief that
Manulkin was armed and presently dangerous,
nor was any arrest made, —
9, In March 1970, plaintiff Robert
McMasters, an attorney, was a passenger
in a car traveling upon the New Jersey
Turnpike close to the Delaware-"New Jersey
border when the car was stopped by a :
State Trooper. After checking the license
of the driver, one Ronald Posen, the
Trooper proceeded to walk around the car,
peering through the windows. As Rosen
had been unable to produce a regis~
tration, the Trooper then ordered. Rosen
to open the glove compartment. W“hen
Rosen was unable to do so, the Trooper
himself forced the door of the glove
compartment open and searched its contents.
The Trooper never sought permission to
enter the vehicle or search the compart-
ment. McMasters did not object hecause
of the tone of the Trooper's voice and
his fear of the consequences of resisting.
The Trooper left after searching the
glove compartmnet. Wo summons was issued.
(T468-73) This search was proper, as one
designed merely to lead to proof of
ownership of the vehicle involved.
10. In the latter part of 1965,
Leslie Tobin, a businessman, was trans-
porting goods in a vehicle bearing New
York license plates frém his warehouse
59a.
in Philadelphia to a store in Woodstock,
New York, when he was stopped along
Route 1 in New Jersey by a State
Trooper. Mr. Tobin got out of his
car and locked it. Thereupon, the
Trooper ordered him to open the car if
he did not wish to have the vehicle
impounded; “Either you open the door,
we want to search your car, or we will
impound your car, take it in and you will
be detained.” When the car was
unlocked, the Trooper entered the car
and conducted a thorough search of the
interior. The search included looking
inside the glove compartment, in the
back of the vehicle, and behind the seats.
No summons was issued. (T499-501) This
search was improper. There was no con-
sent to the search as Tobin was acting
only out of fear of further harassment.
Moreover, the mere locking of the vehicle
by Tobin, while it was a furtive movement,
did not in and of itself give rise to
probable cause.
ll. On a later occasion, Mr. Tobin
was stopped by a State Trooper who fol-
lowed him off the New Jersey Turnpike at
Exit 6. The Trooper did not request
Tobin's license or registration, but
merely stated that he wanted to search
the vehicle, Without saying anything, Mr.
Tobin rolled down the rear window from
fl
;
60a.
the front, neither objecting nor giving
permission. The Trooper went to the back
of the station wagon which Mr. Tobin was
driving and began to search through the
merchandise within the vehicle. No
summons was issued. (T501-03) This was
a warrantless search rendered valid by
consent.
12. On another occasion, Mr. Tobin was
traveling along the New Jersey Turnpike
approaching Exit 9 when he was stopped
by a State Trooper. The Trooper ordered
him to follow his car, and led Mr. Tobin
to an administrative building at Exit 9.
There, after taking the tee ote tat
the administrative building, e Trooper
entered the vehicle and searched its
contents, wanting to know whether Tobin
had any firearms or drugs. Tobin gave no
overt permission for the search, but did
not object either. No summons was
issued. After being detained for over an
hour, Mr. Tobin and his pass Ss were
allowed to leave. (T507-22) n light
of Mr. Tobin's prior experience with
the law, and his awareness of his
rights at this point in time, the court
holds that the totality of the circun-
stances would indicate that he consented
to this search.
13. In March 1970, Mr. Randolf
Warsager, a college student, was stopped
6la.
by a State Trooper on Route 80. He was
told that he had been drisaing in the left
hand lane improperly, as he was only
supposed to drive in the left hand
lane in order to pass another car.
After checking his license and registra-
tion card, the Trooper asked Mr.
Warsager to open his trunk. The witness,
unaware of the fact that he could refuse,
did so. After looking in the trunk, the
Trooper issued Mr. Warsager a warning for
driving in the left lane. No attmpt
was made to learn the Trooper's identity.
(T563-65) This was a legal search.
Warsager's consent was more than mere
acquiescence to authority of a State
Trooper as he opened the trunk without
any objection or hesitancy whatsoever,
without any coercive activity on the part
of the Trooper. |
14. In April 1970, Mr. Warsager was
again stopped along Route 80 by a State
Trooper. After asking Mr. Warsager and
his two friends where they were going,
whether they had jobs, and whether they
had contraband, the Trooper asked then,
in an ordinary tone, to get out of the
car so that he could look. He then
proceeded to search the glove compartment,
under the seat, and the back of the
vehicle. When the occupants asked why
the Trooper had stopped them, he responded
Se RS aes Ps etal
a me ae Se OO eet, Fee LPe wa tp 3S
17m se oxy ink eal fr Re re ie! idee “gat _
- Wate tee te : A:
t it was a routine check. No summons
one issued. About a year later, Warsager
contacted the A.C.L.U. when he learned
about this case. (T565-66) This was an
illegal search. While the activity of
the Trooper was proper, it was a suffi-
cient show of authority to intimidate
the subjects to the point that they
were merely acquiescing to his authority.
Certainly, there was no probable cause
for the search.
15. On July 4, 1970, plaintiff |
Vaccaro was traveling with his wife and
another couple along Route 206. When he
turned off the highway into the Stokes
Forest camping area, he was stopped by a
State Trooper. When the Trooper had
finished checking the poe and ee.
ration card, he asked Mr. Vaccaro
pea the car. He then proceeded, without
probable cause or reasonable gounds
to do so, to look under the front seat
for 15 or 20 seconds. Upon sighting
Mrs. Vaccaro's pocketbook upon the front
seat, the Trooper spilled out the contents
onto the seat, going through them
with his hands. Satisfied that there was
nothing in the pocketbook, the Trooper
returned the license. and registration
to “Mr. Vaccaro. He did not put the con-
tents of the pocketbook back into the
pocketbook. Neither Vaccaro nor his wife
63a.
gave him permission to search either
the vehicle or the pocketbook. No
summons was issued, (T584-86). This
was an illegal search. ‘There was no
probable cause for a search, nor was
consent given.
16. On July 5, 1970, Thomas Hoffman,
a law student, was riding in a large
converted bakery truck with eight to
ten other persons along the New Jersey
Turnpike when the vehicle was stopped
by a State Trooper at a point .
which was approximately one hour's drive
from the George Washington Bridge. The
driver was asked for his license and
registration, and was asked why his
license plate was wired on rather than
bolted on. During this conversation,
the Trooper noticed that some of the
people in the back appeared quite young
and, despite the driver's statement that
they weren't runaways and indeed had
documents and parental permission, the
Trooper went to the back of the truck,
opened the door and began to ask each
passenger whether he or she was a
runaway. The passengers, who were
minors, claimed to have parental permission
and offered documents to prove it.
The passengers, in compliance with
the Trooper's order to get out, exited
from the vehicle. During a scuffle
between the first Trooper and a passen-
ger, a second Trooper arrived. Without
ery es
ee ~~
64a.
g to anyone, this Trooper
srecgathas the open van, leaned in the
back and began a casual search through
the sleeping bags, food containers,
and reading material which were inside
the van. After this search, age
Hoffman and the other passengers
taken to a station so that the Troopers
could make phone calls to determine if any
were runaways. There, the policeman
making calls searched through a camera
bag belonging to Mr. Hoffman. No
explanation was given for this search,
nor was any ssion sought. After
examining the contents of the camera
bag, the Trooper felt Mr. Hoffman's
pants pockets and had him empty the
contents of the pockets. These contents
were subsequently searched. During
discussions with this policeman, Hoffman
revealed that he was 4 law student working
for the New Jersey Public Defender's
office. The Trooper became very self-
effacing and embarrassed and mumbled
statements to the effect that it was,
after all, his job to harass people.
Having been detained for approximately
two hours, all of the passengers were
released, No one was arrested and no- summons
or warnings were issued. No effort was
made by Hoffman during this per‘od to
ascertain the identity of either Trooper,
but he did write to Stanley Van Ness,
Chief Public Defender, about the matter.
(T638-61) 7
65a.
The search of the rear of the
- + since there was no probable
cause for believing that the rear of
the vehicle tained contraband, nor
was there corsent to the search. The
serach of Hoffman's camera bag was legal
as an incident to taking Hoffman into
custody since the camera bag was
clearly within Hoffman's immediate
control. The search of Hoffman's pockets
was also one that vas an riate
adjui.ct to taking Hoffman into custody.
17. On August 26, 1970, plaintiff
Dennis Auciello, a law student, was
driving with a friend from East Brunswick
to Trenton, New Jersey, along U. S.
Route 1. Mr. Auciello and his passenger
were on their way to a conference at is
which Governor Cahill and Colonel Kelly
were .to be in attendance. At approximately
2:15 p.m., he was stopped by a State
Trooper between South Brunswick and
Monmouth Junction, After checking this
plaintiff's license and registration
card, the Trooper asked Mr. Auciello:
"Do you mind if I take a look inside your
trunk?" Mr, Auciello, fearing reprisals
if he refused and generally feeling the
Sr FAZE ee ee pe, SET, OE ER
ek ae > ek ge se ed we, The Des eet
ae = pi ee: < =. ae ri M8 “se a <4 = .
\ el
= — aA
: » a: -
66a.
ressure of authority exerted by this ?
wrecner. told the Trooper to "Go ahead.
The Trooper, however, further demanded —
that Mr. Auciello get out of his auto-
mobile and open the trunk himself. ean:
Mr. Auciello complied, the Trooper loo
inside the trunk. The Trooper then
proceeded to the front of the car,
peering into ice, om Tp tO a:
After being on as
was irpe ee Rage ooh was permitted to
proceed with his journey. No summons
was issued. (T662-83)
At the conference attended by
Governor Cahill and Colonel Kelly, itr.
Auciello mentioned this incident to
Colonel Kelly, asking him if it was a
normal, duly initiated and official
policy of the New Jersey State Police to
tematically stop and search people
th long hair who travel on New Jersey
roads. Colonel Kelly responded;
"Of course not. We never do it." When
Colonel Kelly was asked by Auciello
why a search might have been conducted
during a routine check, Colonel Kelly
stated: "You have to realize that there
is a natural antagonism between law
enforcement officers and students and that
if you are subjected to a search, it is
because it is only natural for the
officer to do this." (T665-68) Judging
the totality of the circumstances,
67a.
including Auciello's awareness of his |
right, to refuse permission, it would —..
appear that Auciello consented to this’
search, rendering it valid.
18. Qn April 1, 1971, plaintiff
Frank St. Claire, a student and a teacher,
was a passenger in a car driven by
Willian Kinnaman along the New Jersey
Turnpike, The car was stopped by |
State Trooper Good, who, after checking
the license and registration, either
requested or ordered the driver cut of
the car and frisked him. The Trooper
then frisked Mr. St. Claire and reached
into his pocket, pulling out a handkerchief.
iir. St. Claire consented to neither: of
these actions. The Trooper next ordered
this plaintiff to open the glove compart-
ment, the contents of which were removed
and examined by the Trooper. As he con-
tinued his search, Trooper Good inspected
the floors of the front and back,
including looking in a small paper bag,
and went through the driver's coat,
which was lying on the back seat, as well
as searching "Ir. St. St. Claire's coat.
Finally, Trooper Good asked plaintiff
Frank St. Claire for identification. ‘when
this was produced, the Trooper left. ‘Io
summons was issued. The Trooper's car
bore the license number TPA-819. When
Mr. St. Claire got home, he wrote to the
:
————— Seana
»
,
68a.
New J é Authority, receiving |
ersey Turnpike ty
a response from the. ' of Troop
D in which further details were sought.
Mr. St. Claire wrote again in benigh | |
received no response, so, on June 4, 1971,
he wrote to Governor Cahill. The
Commander of Troop D again responded,
asking details again. Mr. St. Claire
responded, but never heard anything
back. (T683-87; 694-95) The frisk of —
the driver and the + -aghioeg, Claire
were roper. Insofar as
seoodet reached in and pulled out a
handkerchief, he went beyond the scope
of a proper frisk. In neither case did
he have a reasonable belief that the
person to be searched was armed and
presently dangerous. The
search of the car was improper, not being
based on probable cause or consent.
19. On November 15, 1971, Mr. Lawrence
Welsch, a computer scientist, was
driving on the New Jersey Turnpike when
he was stopped by a State Trooper between
Exit 4 and Exit 5. The time was shortly
after 10 p.m. After asking for a license
and registration carc, the Trooper conducted
a flashlight search of the interior
of the car, Guing which he questioned Mr.
Welsch about some tape cassettes in the
back seat. While looking at the license
and registration, the Trooper asked whether
69a.
Welsch was carrying contraband, to
which Welsch reptied in the negative.
‘The Trooper next walked around tc the
passenger side of the car and attempted
to open the door, which was locked,
Welsch opened it because he though the
Trooper wanted to ask some more questions.
Then the Trooper stuck his head in the
car and asked to look in the glove compart-
ment. Mr. Welsch verbally acquiesced
to this request because he felt the
Trooper was going to look anyway, and he
feared that any other response would
lead to a prolonged search and/or detention.
When Mr. Welsch asked why he had been
stopped, the Trooper stated that
he had noted that the vehicle had a
red sticker which indicated the vehicle
had failed inspection; however, Mr.
Welsch was still within the grace
period. (T771, 773-774) The Trooper
net only searched inside the glove
compartment, but also leafed through
papers and articles in the front seat.
When Mr. Welsch asked for the Trooper's
name and badge aymber, neither of which
could be seen because ft was dark and the
Trooper was continuously shining his
flashlight into the car, the Trooper
promptly left without identifying himself.
Mr. Welsch subsequnetly called the
New Jersey State Troopers’ Barracks, but
he was unable to learn the name of the
Trooper. ‘lo summons was issued. (T768-75).
70a.
This was an illegal search. The officer's
conduct up to the point when he sought
consent to a search was such as to >
deprive Mr. Welsch of the feeling
that he had a right to refuse that he
could freely exercise.
20. At 1 a.m. on October 17, 1971,
Mr. Thomas Enroth, a high school student,
was parked at a restaurant along the -—
Garden State Parkway when his vehicle
was approached by a State Trooper.
After checking Mr. Enroth's license and
registration, the Trooper ordered
Enroth to leave as the Trooper had "told
{him] not to come back here again.”
[The same Trooper had ordered Enroth to
leave two days earlier because he didn't
like the way Enroth and his companion
looked.] Then, one of Enroth's companions
said, “Let's not come back here again.”
The Trooper returned to the car and said,
"If you want to play tough, I can
be just as hard to you as you are to
me." He then reinspected the license
and registration and went through the
vehicle inspection process, examining
lights, blinkers, and brake lights.
Finding no flaws, the Trooper then reached
into the car and removed a brown paper bag
from the back seat. When he had inspected
and replaced this item, he entered the
vehicle and removed a can from the back
J7la.
of the car. Both these acts were done
without Enroth's permission. After
inspecting the can, the Trooper returned
it to Mr. Enroth and departed. No
summons was issued. [Enroth's mother later
wrote to the Bergen Record and the State
Police. (T797-803) This was an illegal
search insofar as the Trooper reached
into the car and removed a brown paper
bag and a can from the area of the back
seat. Clearly, Cnroth did not give the
Trooper permission to search. While the
items may have been in plain veiw,
their nature was not such as to warrant
this intrusion.
21. On Septermber 12, 1970, plaintiff
Peter Gilmore, a law student, was ridina
in a car driven by his brother-in-law
along the New Jersey Turnpike when
their car was pulled over by a State
Trooper at 12:30 p.m. After stating
that the car had been going a little
bit too fast, about 70 m.p.h., and after
checking the driver's license and recis-
tration, the Trooper went around to
the passenger's side of the car and
asked Peter Gilmore to get out of the
Car, The Trooper then patted the jacket
and pants pockets of Mr. Gilmore and
ordered him to empty the contents of one
of them. Mr. Gilmore complied because
it was his philosophy at the time that
policemen always have the last word,
because he was rather intimidated by this
Trooper, and because he did whatever
Troopers asked him to do, just to avoid
72a.
trouble. Thus, despite the fact that he
felt that the pat-down was improper, he
decided to let the Trooper go ahead as
he knew the Trooper wasn't going to find
anything. After this, the Trooper
reached under, around and behind the -
front seat. He next ordered the driver
to open the trunk, whic he then searched.
Neither occupant gave permission to >
search the car or the trunk. No
summons was issued. (T871-75) While,
under all the circumstances, it appears
that Mr. Gilmore consented to the search
of the contents of his pockets, it is clear
that there was no consent to nor
probable cause for the search of the
vehicle itself.
22. In February 1969, Mr. Martin
Kellman, a college professor, was traveling
as a passenger in a vehicle along the
New Jersey Turnpike when the vehicle was
stopped by two State Troopers for having
a defective tail light. One of the
Troopers approached the car and ordered
everyone out of it. He then commenced a
thorough search of the entire vehicle,
without asking permission to do so from
anyone. This search included pulling up
and looking underneath the seats, and
in the glove compartment, and
emptying the contents of two brown bags
upon the front seat and searching
through them. When Mr. Kellman objected
that the search was illegal, the Trooper
searching the vehicle threatened, "Well,
73a.
I could keep you all night. We could
discuss that in the morning.” He then
continued with his illegal activity.
After 40 to 45 minutes of searching,
the Troopers departed. No summons was
issued. (T879-85) This was an
illegal search, supported neither by
probable cause, nor by consent, nor any
other exception to the warrant requirement.
23. On April 29, 1971, Mr. Joseph
Alt, a teacher, was driving with Mr.
William Theboler along the Garden
State Parkway when he was pulled over by
a State Trooper. The Trooper checked Mr.
Alt's license, but, when he was unable
to find his registration card, the
Trooper ordered the occupants out of the
car and proceeded to search in the
passenger door, the glove compartment,
eee aoee4 9) front seat. Mr. Alt
protest s action. The Trooper
he had the right to so search hen * at.
registration was not produced, and then
ordered Mr. Alt to open the trailer at
the back of his car. This was done also
under protest, as Mr. Alt had the rental
agreement for the trailer and ownership
of it was not questioned, and the Trooper
looked inside the trailer. Finally,
the Trooper asked Mr. Theboler if he could
search s pockets. Mr. Alt objected
to this, but the Trooper proceeded to
search Mr. Theboler's pockerts without
obtaining his consent. The Trooper then
left without issuing a summons. The
incident had taken 45 minutes.
74a.
7920-23) There is no question but the
pen as the automobile and the trailer
were justifiable as searches designed =f
yield proof of ownership of the automobi e;
however, the search of !ir. Theboler's
pockets was illegal as not being based on
consent or probable cause, or any other
valid ground.
24. In August 1971, Mr. Thomas
Pathway, a disabled worker and former
student, was driving a Volkswagen van
along the New Jersey Turnpike when he
was pulled over by a State Trooper.
After checking Mr. Pathway's identifi-
cation, the Trooper stated that he was
going to search the car because he felt
that ‘Mr. Pathway had acted furtively in
not looking around when the Trooper
sounded a siren. He ee, Sears a
search of the vehicle,
ppt eo looking within the refrigerator
and underneath py Faas A ae Serene was
i d. T1057- sw
illegal Ph bss because the furtive movement
in and of itself did not give rise to
probable cause to search.
25. In the early part of July 1971,
Mr. Pathway was driving with Mr. Gregory
Gallagher along the New Jersey Turnpike
when he was pulled over by a State
Trooper and issued a warning for speeding.
As “Mr. Pat way was getting ready to depart,
the Trooper asked him if he had any
75a.
contraband within the car. When Mr.
Pathway replied that he had no contraband,
the Trooper then asked to search the
car. Mr. Pathway then asked if he had
any choice in the matter and was told
that he had the choice of having the
car searched immediately or having it
impounded, taken to the police station,
and then searched. Mr. Pathway then
consented to a search. The Trooper then
concucted a thorough search of the vehicle,
including looking under the dashboard,
under the seats, and within the glove
compartment,-and trunk. (T1060-67)
Faced with the inevitability of a search
after impoundment and delay, Mr.
Pathway's consent was not voluntarily
given. That fact renders the search
invalid.
26. In the summer of 1969, Mr.
Ronald Greenblatt, a college student, was
traveling along Route 1 enroute from
Philadelphia to the Rutgers Jazz Festival
when the car he was drivina and another
car driven by his cousin were pulled over
by two State Police cars containing
three Troopers. After checking Mr,
Greenblatt's license and registration,
one of the Troopers proceeded to search
inside the glove compartment, underneath
and behind the seats, and into the
contents of a paper bag within the
car. The Trooper did not ask permission
to do this, but stated only that he was
looking for drugs and ammunition. The
car driven by Mr. Greenblatt's cousin
76a.
was Searched in a similar manner. to
summons was issued in either instance.
(T1594-99) These searches were invalid
as not being based on probable cause,
consent, or other valid legal ground.
27. On the July 4th weekend of 1969,
Mr. Greenblatt was driving along Route 15
enroute to Stokes Forest when he was
stopped by a State Trooper. After
checking Mr. Greenblatt's license and
registration, the Trooper searched the
inside of the vehicle quite thoroughly.
No summons was issued. (T1597-99) On
the same day, Mr. Greenbiatt was stopped
by a different State Trooper. Greenblatt
informed the Trooper that his car had
already been searched that day. The
Trooper responded, "Well, if you have
been searched once today, you can keep
_going." He allowed Greenblatt to proceed,
without issuing a summons. (T1598-99)
The search by the Trooper during the first
stop was clearly illegal, being based on
neither probable cause nor consent.
28. On the Labor Day pom ag em
1970, Mr. Greenblatt was again enro
to Stokes Forest when he was stopped by
a State Trooper at a spot which was
approximately 20 minutes away from that
park. After checking Mr. Greenblatt's
licnse and registration, the Trooper
ordered him to empty his pockets, which
Greenblatt did . The Trooper then
searched the inside of tne car and ordered
77a.
Greenblatt to open the trunk; Greenblatt
complied with this order. Then Mr.
Greenblatt objected to this conduct,
stating that it was an illegal search.
The Trooper explained: “Who are you
trying to kid. You know as well as I
that a lot of people who look like you do
things that are wrong." The Trooper
then continued his search, ultimately
asking Mr. Greenblatt to empty his pockets.
No summons was issued. (T1603-05) Both
the search of Mr. Greenblatt and of his
car were illegal; the former went beyond
the justifiable scope of a frisk and was
not warranted to begin with. The
latter was not consented to ultimately,
although preliminary acquiescence was
present. . |
29. On June 17, 1970, Mr. Timothy
Ferris, the New York editor of the
Rolling Stone Magazine (a national
publication), was driving north along
the New Jersey Turnpike. Having
stopped at a service plaza, he returned
to the car he was driving and found
that a State Trooper had pulled in front |
of him. Trooper Laird asked Ferris for
his license and registration. Ferris
produced his license but was unable to
produce the registration, explaining that
he had papers which would show that the
car was a “drive-away" car that he was
transporting cross-country for the owner.
When Ferris' traveling companion opened
the glove compartment to produce these
papers, Trooper Laird noticed that there
78a.
was a small bowl corncob pipe in the car.
After inspecting the papers and telling
Ferris they were insufficient, Laird
removed the pipe. No permission was
sought when he reached into the car
and none was given. After inspecting
the pipe and smelling it, the Trooper
used his radio to call for an N.C.I.C.
check on the car and then returned to.
Ferris' car. At that point, he reached
over the back part of the car (the car
was a convertible and during this incident
the top was down) and began to search
through the luggage in the back seat.
As this second search commenced, the
Trooper requested permissio. to
search, but did not wait for a reply;
none was given. An arrest for possession
of narcotics, i.e., marijuana and
hashish, resulted from this latter
search. The validity of the search
was not challenged in the criminal
proceeding which resulted because Mr. :
Ferris pleaded guilty to a disorderly 5
persons charge when he was unable to obtain
bail. (T325-52) The rg 5 amc
love compartmen
cubenninad justifiable as likely to produce
proof of ownership. The circumstances
were also such as to give rise to
probable cause for the search and
inspection of the pipe, especially given
the fact that the initial observation of
the pipe was when the area was open to
plain veiw. The ultimate search of the
luggage in the back seat was one which
appears to have been consented to, as the
79a.
-
occupants were ahle to object for several
moments before contraband was discovered.
30. On March 9, 1972, Mr. Gary Picone,
a college studnet, was driving along
Route 80 at 8:50 a.m. when he was passed
by a State Police car traveling at a
very high rate of speed. “tr. Picone
thought that the police car might he
speeding improperly, so he speeded up to
follow the police car and copied down its
license number. At about that time, another
State Police car, driven by Trooper
Slack, pulled alongside. Picone
motioned to Trooper Slack to follow him.
They drove to a State Police station
at Little Falls, New Jersey, where Mr.
Picone inquired into the propriety of a
police car's traveling at such a high rate
of speed without siren or blinker.
After seeing the police car in question
at the station, Mr. Picone related
this incident to Trooper Slack. Trooper
Slack asked him for his license and
registration and informed him that he was
being issued a traffic ticket for
traveling 95 miles an hour along Route
80. They both went back outside the station.
After Mr. Picone produced his license,
but stated that he could not produce the
registration, he and Trooper Slack were
joined by two other Troopers, one of
whom was Trooper Philips. (Mr. Picone
testified that Philips was the driver of
the police car whose high speed driving
had originally motivated Mr. Picone to go
SMa.
to the police station.) At that point,
Trooper Philips ordered tr. Picone to
place his hands upon the car and spread
out his feet. The Trooper then proceeded
to frisk Mr. Picone because he was excited
and complaining about the speed at which
the first police car had been traveling
when there was no emergency requiring
such speed. After Trooper Philips
completed the frisk, Trooper Slack issued
two summonses, one for traveling 95 miles
an hour along Route 80, and another for
driving without a registration card.
(T1570-85; 1746-96) This frisk was
valid as Trooper Philips had reason to
believe that Picone was armed and
presently dangerous.
31. On January 17, 1971, plaintiff
Douglas Star, a civil draftsman, was
riding along the Garden State Parkway and
he was stopped at approximately 7 p.m. by
two vehicles; one was an unmarked yellow
and white Ford. In light of Trooper
Dalrymple's testimony to the effect
that such vehicles were never used hy
the State Police, the court finds that
this has not been proved to he a State
Police vehicle. The other vehicle was
a marked State Police car. Two policemen,
of whom at least one was a State Trooper,
approached Star's vehicle. After
checking the driver's license and the
registration card, as produced by Star,
the two Troopers ordered both the driver
and Star out of the car, declaring that
they would like to search the car.
83a.
Star remained in the car as he was wearing
a leg cast. - One officer then entered the
car on the driver's side and looked under
the front seats, into the glove ‘compart-
ment, under the dashboard, and behind
the back seats. The Troopers inspected
the rear of the passenger compartment
from outside of the vehicle using their
flashlights. A jacket on the floor of
the front seat was searched. Ctar stated
that he did not protest the search as
he was not fully aware that he could
resist. No summons was issued as the
Troopers left after stating, "Sorry
we had to search the car, we just
wanted to check." (T402-14) This was
an illegal search. There was neither
consent to the search nor probable cause
for it, and the court cannot discover
any other legal ground for the search.
32. On or about September 23, 1970,
at approximately 2 p.m., plaintiff Joseph
Vaccaro, a college studnet, was stopped
at the Essex Toll Plaza of the Garden
State Parkway by a State Trooper.
After checking this plaintiff's license
and registration card, the Trooper
asked Vaccaro to get out of the car, which
he did. The Trooper then asked, in bel-
ligerent fashion and hostile tone, if he
could search, to which Vaccaro responded,
"No, I don't give you permission to search
the car and furthermore it is illegal.”
After learning that Vaccaro attended
Montclair State College, the Trooper said:
82a.
"Well you better go back there and learn
the law because you can't tell mé what to
do." At this peint, Vaccaro thought it
futile to protest, and the Trooper chose
to search the vehicle, despite Vaccaro's
objections. During the search, the
Trooper looked under the dashboard,
under the front seat, and in the trunk,
all the while asking Vaccaro where the
narcotics were, threatening him with
impoundment of the car. No summons was
issued. Mr. Vaccaro copied down the
license number of the Trooper's car
(SCY 977) and notified the A.C.L.U. when
he got home that day. (T579-84) This
was clearly an illegal search; it was
not consented to, nor was there probable
cause for it. There is no other
discernible justification for it.
33. On June 7, 1970, plaintiff
Albert Porter, a college professor, was
driving north on Route 130 with Miss
Marion Lewis, a graduate student, when
they were pulled over by State Trooper
Boylan within a mile after the Route
206 intersection. Plaintiff Porter
left his car to meet Trooper Boylan. The
Trooper stopped Mr. Porter at the ;
back of his car, suddently pushed Mr.
Porter's hands into the air and frisked
him. Mr. Porter was shocked by this
procedure ad asked the Trooper tehy he
had done this. Trooper Boylan replied
that he had to do this for his own
protection. Trooper Boyla. then checked
plaintiff Porter's license and registra-
tion card and asked permission to search
the vehicle. When Mr. Porter objected
83a.
to this, Trooper Boyland conducted
a visual search through the open door and
ordered Mr. Porter to open a suitcase
in the back of the vehicle. When this
order was complied with, Trooper Boyland
searched through the contents of the suit-
case and through the other luggage in the
back of the vehicle, as well as inside
the door pockets. He then, over Miss
Lewis' objection, opened her pocketbook
and began examining the contents.
Trooper Boylan finally returned the license
and registration card to Mr. Porter and
left. No summons was issued. The next day,
Mr. Porter called the Bordentown State
Police Barracks and lodged a complaint.
(T182-207; 1369-74) The frisk was
illegal as Trooper Boyland had no reason
to believe that either occupant was armed
and presently dangerous. The search of
the car and the pocketbook were also 11-
legal as there was clearly no consent to
them, nor was there probable cause therefor.
34. In the winter of 1968-69, plaintiff
Warren llergenhan was traveling in a Volkswagen
driven by Mr. Joseph Perona when they were
pulled over by State Trooper Hook and
another State Trooper just as they had left
Route 4 at the Leonia exit. The two
Troopers left their vehicle and approached
Mr. Perona’s car from both sides. The
Trooper on the driver's side asked “ir.
Perona if he could look inside the trunk.
The Trooper on the passenger's side opened
the door of the car and was about to open
the glove compartment when Mr. Heragenhan
84a.
objected that such a search was illegal.
At that point, Mr. Perona asked Mr.
Hergenhan to let the Trooper look into
the glove compartment. When the one
Trooper had finished a thorough inspec-
tion of the glove compartment, and the
other had searched the trunk, they
departed. Wo summons was issued (T310-14)
This search was legal as Mr. Persona
clearly consented to it, knowing that he
had a right to refuse.
35. On February 7, 1969, Mr. Philip
Danzig, an architect, was driving his
1962 MG Midget on the Garden State
Parkway when he was approached from behind
by a car driven by a State Trooper. Mr.
Danzig pulled his car off the road when
the Trooper signaled to do so. After
checking ‘Mr. Danzig's license and regis-
tration, the Trooper walked around to the
passenger side of the vehicle and asked
how the car door worked. When Mr.
Danzig explained that it opened by an inside
latch, the Trooper then asked if he could
try the latch. Mr. Danzig assented to
the Trooper's request. The Trooper not
only tried the latch, but also began
feeling around the inside of the car,
including under the dashboard, under the
seats, and in the compartment behind the
seats. Danzig did not object. The Trooper
then issued Mr. Danzig a warning because
a bolt was missing on the front license
plate, aninfraction which could not have
85a.
been seen until after I'r. Danzig had been
stopped. (T523-40) Under all the circum-
stances, it appears that Danzig consented
to a search of his vehicle, as the logical
reason for the request to try the
latch was the Trooper's desire to gain
access to the inside of the vehicle.
36. In September 1°79, "tr. Matthew
‘aplowitz, a musician-composer, was driving
his Volkswagen van with Indiana license
plates along the “ew Jersey Turnpike near
Fxit 14 when he was stoppned bv State
Trooper Deliauro and another State Trooper.
Mr. Naplowitz was derservedly issued a
summons for the illeqal use of the "z",
a roadway between the northbound and south-
bound lanes reserved for police. After
issuing the summons, Trooper De'lauro
pointed to the rear of the van and asked,
“What is back there?" fMaplowitz responded,
"There is nothing back there." Then
DelNauro said, "Open it up." Kaplowitz
responded, "There is no reason to open it.
There is nothing there." At that point,
DeMauro said, “Open it up hecause I don't
have all night. Let's get on with it.”
Kavlowitze complied because of the hostile
tone of Dellauro's voice and the fact
that he had committed a violation. The
two Troopers then entered the back of the
van and conducted their search, leaving
things in disarray. ‘They ordered “Ir.
Kaplowitz to open his attache case, and
searched its contents. Before departing,
86a.
r DeMauro, upon repeated requests,
save nis name to Mr. Kaplowitz. (T703-07)
There was clearly no consent to this
search. As only a summons was issued,
there was no basis for a search incident
to an arrest; nor was there probable cause
for the search. At best, there was mere
suspicion.
37. On February 8, 1972, Mr. Peter |
Jarvis was driving along Route 70 near
the Laurelton Circle when he was stopped by
State Trooper Lucarelli and State Trooper
Bullet. Trooper Bullet stated to Jarvis
that he was being given a warning
because his right headlight was out.
Trooper Bullet then asked for Jarvis
registration. As Jarvis opened the glove
compartment to get his registation,
Trooper Lucarelli aimed his flashlight
in that cirection and the Troopers saw a
pipe in the glove compartment. Jarvis
was then ordered out of his car. His
shirt pocket and a leather puch on his belt
were frisked by Trooper Bullet, who then
asked that the contents of those two
areas be displayed to him. Trooper Bullet
then asked to see the pipe. Jarvis asked
if they had any right to see it, as it
was merely an ordinary smoking pipe.
Trooper Bullet responded, "Just let me
see the pipe." Jarvis showed it to him.
The Troopers then issued him a summons
for having malfunctioning headlights and
taillights, and let him go. (T1461-79)
The frisk was improper as there was no
87a.
reason to believe that Mr. Jarvis was
armed and presently dangerous. Moreover,
the search of the glove compartment,
while initially a permissible visual
search, became illegel when the Troopers
ordered the production of the pipe with-
out probable cause for believing it to be
contraband and without obtainina Jarvis’
consent,
38. On May 3, 1970, plaintiff Jesse
Berman, an attorney, was retu ning to ‘lew
York in a 1967 Volkswagen canner bus from
a meeting at Princeton to protest "nited
States troops entering Cambodia. As he
was approaching the New Jersey Turnpike
along Route 1, he was stoppec hy a local
police officer. Simultaneously, a State
Police car stopped on the Opposite side
of the road. “hile the local ‘police
officer checked his license ané@ reaistra-
tion card, State Trooper Hawke approached
the passenger side of the vehicle, opened
the front door, and reached into the con-
venience shelf, from which he beaan
removing and inspecting various items,
including a plastic hag containing auto
parts. The auto parts were at the back
of the shelf and, consequently, out of
the view of someone sitting within the
vehicle or standing outside of it. After
this search, Trooper Hawke beqan demand-
ing identification from the other two
passengers. Mr. Berman objected to both
the search of the convenience shelf and
the demand for identification from his
passengers. Upon this objection, Trooper
Hawke ordered plaintiff Berman out of the
car and forced him to stand against the
local police officer's car, threatening
to mash his face into the cement, and
claiming that it was his practice to
stop people with long hair and beards in
order to search for drugs. At this point,
Mr. Berman informed Trooper Hawke and
the local police officer that he was an
attorney. The threatening immediately
stopped and surmonses were issued by
the local police officer, one of which
was subsequently dismissed because there
was no red light at the intersection
referred to on the summons. (T31-39;
54-61) Trooper Hawke's search of the
convenience shelf was clearly illegal.
There was no probable cause for the
search, the items searched were not in
plain view, and there was no consent ob-
tained from Mr. Berman.
39. On January 10, 1971, plaintiff
Roger Kligler, a college student, was
driving on Route 546 at approximately 5
p.m. when he was pulled over by State
Trooper Seitz. Tooper Seitz testified
that the reason the vehicle was stopped
for a routine check in the first place
was that it was unusual to see an out-
of-state vehicle on that road. After
checking Mr. Kligler's license and regi-
stration, Trooper Seitz asked if the
plaintiff had any drugs or contraband
8%a.
in the car, to which question Mr. “ligler
answered that he did not. The Troever
then asked if he could search the vehicle.
Mr. Kligler did not reply, but merely
left the vehicle. Trooper Seitz conducted
a thorough search of the inside of the
car, including looking under the seats,
in the glove compartment anc in the back
of the vehicle. The Trooper next ordered
plaintiff Kligler to open the trunk, and
Mr. Kligler complied with this order.
lo summons was issued.
Immediately after the incident, "r.
Kligler called the local State Police
station and reported the incident to the
desk sergeant, who later phoned him back
and reported that Trooper Seitz had
denied searching the car and that there
was nothing further that he (the desk
sergeant) could do ahout the matter. Mr.
Kligler then reported the incicent to
his father, an attorney, who w_ote a
letter dated January 12, 1971 to defen-
dant Kugler complaina of this incident.
(Pl) (7140-57) Under all the circun-
stances, the court concludes that "‘r.
Kligler consented, through his actions,
to a search of hoth the passencer conm-
partment and the trunk.
49. On “arch 14, 1°79, nlaintiff
George Lewis, then a hich school student
(presently a collece student) vas trav-
eling alona the Carden “tate Parkway
at approximately 7 ».m. when he vas
90a.
stopped by two State Troopers, one of whom
vas State Troover Tanner. While checking
the license and rescistration card of
plaintiff Lewis, Trooner Tanner conducte?!
an extensive questioning of Mr. Lewis
and the other Trooper conducted a flash-
light search of the car. Still retaining
this plaintiff's license and recistration
car’, both Troopers returned to their
car. At this point, “‘r. Lewis and his
companion walked up to the police car in
order to retrieve the license and regi-
stration card, ‘ir. Lewis was ordered into
the back seat of the police car. Nis
friend was orderec to return to the Lewis
car.
After further questioning, Mr. Lewis
was also ordered back to his vehicle
where he waited for 15 minutes until two
ether State Police cars carrying three
Troovers arrived. A newly arrived plain-
clothesnan beaan to question “'r. Lewis.
Nurina the course of this interrogation,
‘lr, Lewis noticed that one of the Troopers
had entered his car through an already
oxen door ana was searching inside. Ilr.
Lewis addressed this Trooper, voicine his
objection to the search of his vehicle.
‘Men the Trooper ignorec the objection
ana continued to search, '!r. Lewis ob-
jected again to another Trooper who was
standing nearbv. “he search produced a
license plate registered to the fanily
corzoration, aré a box of hard candy,
each piece of which was unwrapped and
Sla.
inspected. Finally, “r. Lewis was issuec
a summons for failing to keep to the
right and the three cars devarted. ‘the
entire incident consuned nearly 45
minutes. (T157-174) This was an illeqal
search. The license plates were not in
plain view, nor did the minor discrepancy
between the name of the driver and that
of the registration give rise to probable
cause to search. Certainly, there was
no consent to a search, given Lewis'
objections.
41. On December 10, 12°70, Ir.
Patrick Ryan, a college student emploved
by the Community Relations Division of
the Department of Justice, was driving
along the New Jersey Turnpike with Mr.
Kevin Lancaster, also a student, when
he was pulled over by two State Troopers,
one of whom was Trooper Thom, for having
no taillights and a wobbly right rear
wheel, As Mr. Ryan and Mr. Lancaster got
out of the car and met one of the Troopers,
the other Trooper went to the car,
entered it, and conducted a search of the
inside of the vehicle, an action which
was objected to by Mr. Lancaster, the
owner of the vehicle, in that he stated
that if they wanted to search further they
would need a warrant. At this point,
the Troopers commenced a safety check of
the vehicle, finding a broken taillight
and one loose lug nut. Two summonses,
consequently, were issued--one for an
unsafe vehicle and one for the hroken
92a.
taillight--and both fr. Ryan and Mr.
Lancaster were frisked and taken to the
police station where they were required
to post $50 bond. The frisk of Mr. Ryan
was conducted because he seemed upset
about receiving a summons. The frisk of
Mr. Lancaster was conducted only because
he was going to be riding in the back
seat of the police car. The car, mean-
while, had heen towed to a garage as it
had not been possible to obtain a fuse
for the brake light locally. Upon re-
turning to the car, “ir. Ryan and Mr.
Lancaster discovered that the contents of
several bags had been emptied upon the
seats. Christmas presents which had been
in the back were on the front floor, the
side pockets of the car had been emptied
onto the floor of*the vehicle, and the
tail pipe had been disconnected. The
Troovers denied knowing who had conducted
the search; the owner of the garage denied
doing it. On February 25, 1971, Mr. Ryan
sent a letter complaining of this inci-
dent to State Attorney General Kugler.
Copies of this letter were sent to
Colonel Kelly and «-overnor Cahill. In
response, Mr. Ryan received a letter from
Colonel Kelly requesting phone numbers.
On the night of the incident, Mr. Ryan
also called Trooper Thom to complain about
the fact that Christmas presents were
ripped open. Eventually, a special
report on the incident was prepared by
“roover ™hom as a result of the con-
nlaints that had been registered.
93a.
(T182-89) The frisks of Mr. Ryan and Mr.
Lancaster were justified under the cir-
cumstafices as an incident to taking them
into custody. However, the search of
the vehicle was improper, being neither
incident to the arrest nor based on prob-
able cause. It was not a valid inventory
search because the vehicle was not being
impounded. However, the proof is insuffi-
cient to warrant a finding that the
search was conducted by a member of the
State Police.
42. On November 14, 1971, IMiss
Jessica Crosby, “tr. Leon Key, and Miss
Maxine Chandler were riding along the
New Jersey Turnpike at approximately 7:30
a.m. when the car in which they were
riding was stopped by two State Police
cars, one driven by Troover Luzhak and
the other by Trooper Dancisin, for a
traffic violation. Trooper Dancisin
approached the front seat of the passenger
side of the vehicle, ordered the passenger,
Mr. Key, to get out and spread-eagle
himself against the Trooper's car. Trooper
Dancisin then conducted a thorough search
of the person of Mr. Key, including search-
ing through his pockets and shoes, and
yanking his hair. Meanwhile, Trooper
Luzhak went over to the vehicle, searched
the driver and the pocketbooks of the
female passengers who were sitting in the
car. Trooper Luzhak then took the key
from the ignition, opened and searched
the trunk, and returned to search inside
4a.
the vehicle. The stopping, the search of
‘tr. Xey, of the women's pocketbooks, the
driver, the trunk, and the inside of the
vehicle were all protested by the passen-
gers, but they were in turn threatened
with arrest by both Trooper Guzhak and
Trooper Dancisin for such verbal inter-
ference. The passengers and their car
were then taken to the police station
where Mr. Key's identity was checked.
While there, Trooper Dancisin conducted
a search inside of the vehicle. The
driver was then issued a summons, and
they were all released. (T254-84) The
frisk and search of Mr. Key were legal
as incident to an arrest, although formal
arrest had not yet taken place. The same
is true of the frisk of the driver. The
search of the pocketbooks and the trunk
by Trooper Luzhak was also incident to
an arrest, even though the formal arrest
- had not yet been made. However, the
search of the vehicle at the station was
illegal as not based on probable cause,
not incident to the arrest, nor a proper
inventory search as the vehicle was not
being impounded. |
43. On June 9, 1971, at about 2
a.m., plaintiff Mark Antisz was violating
the law by discharging passengers at the
Pennsylvania Turnpike exit of the New
Jersey Turnpike when State Trooper Duble
pulled up. The Trooper talked to the
passengers and then entered the car by
way of the already open door on the
passenger's side of Mr. Antisz's car.
He sat down and began to search in the
95a.
glove compartment, which was open so as
to give support to a tape system. All of
this was done without seeking Mr. Antisz's
permission. Trooper Duble stated that
he had observed some vials of pills and
some pipes in the glove compartment from
his vantage point outside the car. From
a distance, Trooper Duble saw nothing out
of the ordinary as to the pipes, but he
could not see any labels on some vials of
pills in the glove compartment. Trooper
Duble pulled out three vials of pills
from the glove compartment, which pills,
Mr. Antisz explained, were for his Jis-
ability. (Mr. Antisz is a disabled
veteran.) However, Mr. Antisz was unable
to show that all of them had heen pro-
cured by prescription. Moreover, inspec-
tion of the pipes led Trooper Duble to
believe that they were the kind of pipes
used to smoke hashish. He then placed
Mr. Antisz under arrest. The Trooper
then asked to search the car. When "tr.
Antisz objected, Trooper Duble, neverthe-
less, proceeded to search the car, includ-
ing underneath the seats. He then took
the keys, and opened and searched the
trunk. ‘hile the search was going on,
Mr. Antisz took a cigarette from a pack
on top of the dashboard and tossed the
pack back onto the dashboard. Coming
back to the car, the Trooper then examined
the pack of cigarettes on top of the dash-
board and found marijuana cigarettes
inside the package. Subsecuent to this
search. Mr. Antisz was arraigned on a dis-
orderly persons charge at a hearing in
~ 2S
96a.
which the issue of the validity of the
search was never presented. ‘ir. Antisz
was not represented by an attornev at
this bearing. "e was found cuilty later
anc fined $259. (7784-392)
This search was valid. se ima cog
b ation of the qlove cormmartnment |
ves anenee observation of items in plain
view. The physical search of the glove
compartment was based on probable cause
to believe that the vials of pills con-
tained contrabanc. ‘hile from outsice
the vehicle the pipes did not gaa est
of the ordinary, the closer view of then
as part of the proper search of the
alove conpartnent gave probable cause to
search them. The search of the car and
the search of the cigarette packace were
both proper, being based on probable
cause and being proper searches inci-
dent to an arrest.
44, On Septenber 25, 1970, plainti‘tf
>llen Gorden, a college stucent, was
driving a 1969 Yolkswagen to an ll mg
class when he waged jenn ators. meal
Relleville by State 7
Fie Plaintiff Gorden left his
car and produced, upon request, his
license and registration card. ivhen
plaintiff Gorden asked why he had arer
stopped, Trooper Bershefski paused while
he looked over the vehicle and then in-
formed him that it was because his
inspection sticker was improperly
7a.
attached. (The sticker, in the lower
right hand corner, was attached by a
piece of transparent tape.) The Trooper
then performed a visual search and dis-
covered a marijuana seed on the front
floor of the car. After this, the
Trooper searched the interior extensively,
discovering one marijuana cigarette and
fragments of others. When Mr. Gorden had
protested that Trooper Bershefski had no
right to search the vehicle, Trooper
Bershefski stated that he had a right to
do so hecause the sticker had been im-
properly attached to the windshied. Then,
*rooper Bershefski opened the door,
entered the car, and searched the interior
of the vehicle, including the door
pockets.
After the search, the Trooper issued
a summons for operating a vehicle while
in possession of narcotics. This evidence
was unable to withstand a subsequent
motion to suppress. (T482-87) The burden
being on the plaintiffs in this proceeding,
the court is unable to find this search
to be illegal. In the court's view, the
fact that the marijuana seed was found on
the floor gave Trooper Bershefski probable
cause to search the rest of the car. This
is so despite Trooper Bershefski's state-
ment that the search could be justified
by the failure to have the inspection
sticker properly attached.
45. On June 7, 1970, plaintiff Ellen
98a.
Urman was a passenger in a vehicle driven
by James Donald along the New Jersey
Turnpike when the car was pulled over hy
State Trooper Rinker, who was joined by
another State Trooper in a separate car.
Trooper Rinker approached the vehicle,
checked the dirver's license and regi-
stration, and asked Ms. Urman what her
name was. As the name on the registra-
tion was not the same as that of either
of the occupants, and as Ms. Urman seemed
nervous, the Trooper then ordered them
out of the vehicle. Trooper Rinker then
asked Ms. Urman for identification. In
the process of obtaining identification,
she opened her handbag and Trooper Rinker
saw a roll of pink tissues in the back.
As Trooper Rinker knew that tissues were
sometimes rolled around marijuana ciga-
rettes, he reached into the purse for the
tissues and discovered five such ciga-
rettes rolled up inside. He placed Ms.
Urman under arrest. He then searched the
interior of the car. Trooper Rinker then
conducted a search of the person of Mr.
Donald looking for weapons or contraband.
Both were then taken into custody. Mr.
Donald drove his car to the barracks and
Ms. Urman rode with Trooper Rinker. ."o
summons was issued to the driver. “\“s.
Urman was charged with a disorderly per-
sons offense for the use of marijuana,
to which she later pleaded guilty.
(7540-50; 71429-58) Trooper Rinker's
observation of the folded tissues in ‘Ms.
99a.
Urman's pocketbook gave him probable
cause to search the tissues when consid-
erec with Ms. Urman's nervousness. The
search of the vehicle and the frisk of
‘Ir. Donald were proper searches incident
to taking the two of them into custody,
although Mr. Donald was not formally
under arrest.
46. On December 1, 1971, plaintiff
Dennis Auciello, a law student, was
driving north along the Garden State
Parkway at approximately 11:45 p.m. when
he was pulled over by State Trooper Evans
for weaving from lane to lane. After Mr.
Auciello handed over his license and while
he searched in the glove compartment for
his registration card, the Trooper con-
ducted a flashlicht search of the front
seat. Ne then asked Mr. Auciello if he
had any alcoholic beverages in the car.
The response was negative. Trooper Evans
next ordered plaintiff Auciello to come
out of his car and stand in front of
the Trooper's car while Trooper [vans
frisked him. Trooper Evans next admini-
stered a number of tests to determine if
“ir. Auciello had been drinking because
Trooper Evans had seen the car weaving
from lane to lane. “tr. Auciello had not
been drinking and the tests confirmed
this. Finally, Trooper Fvans issued Mr.
Auciello a warning for inattentive driv-
ing. (668-72; T1397-1415; T1483-95) The
flashlight search of the front seat was
proper observation of areas in plain
190a.
view. The frisk of Mr. Auciello was
based upon a reasonable belief that Mr.
Auciello was dangerous in light of. the
way he had been driving and the fact
that Trooper Evans was working alone at
night. The evidence as to the occurrence
of other searches was in equipoise and,
as the burden was on plaintiff Auciello,
the court finds as a matter of law that
they should not be considered.
47. On May 24, 1971, plaintiff
Joseph DeOrio, director of the Y.M.C.A.
in Long Branch, New Jersey, was drivinc
a red panel truck upon Route 35 along with
plaintiff Rosalie Rossi, an art teacher
at Monmouth College, and plaintiff
Richard Honymar, also a teacher at
Monmouth College, when he was pulled over
by State Trooper Kowal. After checking
Mr. DeOrio's license and registration
card, Trooper Kowal ordered him out of
the car and around to the passenger side
of the vehicle. After “ir. DeOrio denied
having any drugs, the Trooper asked hin
if he could look into the truck, to
which Mr. DeOrio replied ir the affirma-
tive. Instead of looking into the
vehicle, Trooper Kowal proceeded to search
Mr. DeOrio, including putting his hand
inside this plaintiff's jacket and
trouser pockets. Both Mr. DeOrio and iir.
Honymar objected to this search. Trooper
Kow2l then ordered Mr. Honymar out
of the truck and began to go through his
pockets. This was again objected to by
ile,
‘ir. Honymar, so the Trooper stopped
searching Mr. lonymar and leaned into the
vehicle and searched throuch the glove
compartment. Finally, he reached into
plaintiff Rossi's pocketbook which was
between the two front seats. This
search was objected to by “Ir. DeOrio and
ir. Tonymar, anc when they threatened
to report Trooper Kowal, he said, "So
ahead.” The Trooper refused to yive his
name and badge number, but "fr. 'onymar
got his name off his shirt, and “iss
Rossi took down the Trooper's car's
license plate number. /.fterwards, Trooper.
Xowal departed without issuinc a summons.
Complaints were filed that day by
the plaintiffs, and an investication took
place in two or three weeks. Trooner
Kowal received no reprimand, despite the
statement of the investiqatinag officer
that he would be reprinanced. Insteai,
he received a commendation for his law
enforcement activity during "fay and June
1971. (%713-34; 7945-49) “he frisks and
searches of “r. YeOrio and “tr. "onynar
were both illegal as there was no reason
to believe them to be arned or Cancerous
and because the circumstances certainlv
did not warrant more than a frisk. The
search of the dlove compartnent ‘rs ~alitd
as it hac been consentec to by “r. YNeOrio.
The consent was withdratn when Trooper
¥Yowal »egan to search “iss Rossi's pocket-
book. “hus, the search of that pocket-
hook can he supportec only on sone v7roundc
102a.
other than consent. However, the court
cannot discern any such other legal basis
for the search. “—
48. On August 19, 1970, plaintiff
Christopher Quenore, a college student,
was driving on Route 70 with his parents .
and with his younger brother and the
brother's friend. le was driving a_con-
verted 1951 Packard ambulance when he .
was pulled over bv State Troopers Gunter
and Kriskanda. Trooper Kriskanda ordered
everyore to get outside of the vehicle
and to stand in front of it with their
arms at their sides. Ne then checked
plaintiff Christopher Quemore's license
and registration card. Then there was
a discussion concerning the fact that
the car was registered in the name of a
person who co-owned the car. In an author-
itative voice, the Trooper asked if he
might search the vehicle. Plaintiff
Quemore said, after seeking advice from
his mother, "Pe my guest." Trooper
Gunter went to the back of the vehicle,
opened the rear “oors, and, leaning into
the rear of the ambulance, checked inside
various compartments within the vehicle,
including a search through the family's
picnic basket and ice cooler. After
this, the Troopers conductec a safety
check of the vehicle and both Troopers
departed without issuing a summons.
(7739-56) Despite the fact that there
were two officers present anc acting with
authority, the court feels that the
103a.
Quemores were aware of their right to
refuse and decided freely to submit to a
search,
49. On May 5, 1971, plaintiff
Nicholas Paul, a college student, was
driving along Route 1 accompanied by his
sister, plaintiff Martha Paul, a high
school student, and her friend. Plaintifff
Nicholas Paul was proceeding south on
Poute 1 when he was stopped approximately
10 miles from Princeton hy a local police
officer from South Mrunswick who was
later joined by a State Trooper in another
car. iir. Paul got out of the car and
showed the local officer his license and
registration card. The officer then
ordered the other passencers out of the.
car, over the objection of Miss Paul's
friend. Having ordered all three passen-
gers to stand in the front of the car
with their hands on the hood, the local
officer proceeded to open the coor on the
passenger side of the car and to search
within the glove compartment, under the
seat, and behind the front and hack seats.
lie then went to the other side of the car
anc conducted a similar search. Finally,
a summons was issued by the local o*fécer
for speeding. The State Troover merely
provided back-up support during the
incident. (T759-67)
: There is no question but that the
search of the vehicle conducted by the
local officer was illesal, not being based
on probable cause nor consent. However,
1%4a.
as the State Trooper did not become in-
volved as back-up support until the in-
cident was under way, the court finds
that there was unsufficient proof that
the State Trooper knew sufficient facts
to be able to judge the legality of the
search and, thus, the court will not
consider the incident as part of the
alleged pattern or practice.
50. On February 22, 1971, "Ir.
Robert Miller, a writer and former cap-
tain in Military Intelligence, was
traveling as a passenger with Mr.!ilark
Goldenberg along Route 1 when they were
stopped by State Trooper Z7upko. After
checking Mr. Goldenberg's license and
registration card, Trooper Zupko was
issuing a summons for speeding when he
was joined by Trooper RBershefski in a
second vehicle. Upon issuing the
Summons to Mr. Goldenberg, and while he
was in the process of explaining the
procedures of compliance with the
15a.
verbally consented when he was informed
that if the Trooper helieved "tr. Coldenberg
to be concealing anything, a warrant ;
woule be obtained? if he refused. Ahsent
such belief as to concealnent, Trooner
Zupko later stated he did not believe he
hac probable cause to search. “rot “tr.
Goldenberg and !tr. !!iller went to the
rear of the car while both Tronvers
thorouchly searched the trunk, including
a careful inspection of the contents of
a tool box. Purina this search, hoth
“tr. Goldenbero and ‘tr. “iller were con-
tinually questioned as to which orqani-
zations they belonged and where they were
going to and from. After searching the
trunk, Trooper Zupko went to the front of
the car and began to search aroun’ the
front seat and under the dashhoard. This
was objected to by both "'r. Golder! srg
anc Mr. Miller as they felt that thev had
consented only to a search of the trunk.
Nevertheless, Trooper Zupko continued
his search, looking uncer the front seat
and into the clove compartment, and
onering a suitcase and a knapsack which
were in the back of the car. \fter
searching the interior of the car, Trooner
“upko approache’ ‘ir. ‘tiller an’ natted
the pockets of his jacket, questioning:
him as to their contents. "his procedure
summons to ‘ir. Goldenberg, Trooper Zupko
noticed that the passenger was operating
a tape recorder during the discussion.
Trooper Zupko asked the passenger Miller
if he had any proof of ownership of the
tape recorder, which "iller did not.
Trooper Zupko then ran an 4.C.1I.C. check
on it, as well as two radios that were was objecte’ to by "r. “tiller. “he two
in the back seat. The ".C.I.C. checks Troopers then departe’. (7791-25:71298-
came back negative. At that point, 1316)
Trooper Zupko asked to look in the
trunk of the car. “ir. Goldenberg The search of the trunk: vas valid ‘yy
106a.
reason of consent. ‘The threat of a wer-
rant did not vitiate this consent, as the
Trooper made it clear that the issuance
of a warrant would not be automatic. The
search of the passenger compartment was
clearly not justified by reason of consent.
‘or was there probable cause or any other
leaal basis for the search. Finally, the
frisk of ‘ir. Miller was not legal as
"rooper Zupko had no reasonable belief
that Tir. Miller was armed and dangerous,
especially considering the presence of
"rooner Bershefski.
51. On December 10, 1971, “r. Fvan
Roxborough was parkec in a rest area on
the ‘iew Jersey Turnvike when he was
approached bv State Trooper Hansen.The
Trooper checked Mr. Roxhorouqh's license
and registration card, and then left,
after some brief questioning. As !tr.
Roxborough proceeded out of the rest area,
the same Trooper stopped him and was
joined 39 seconds later by Trooper
DiGiandonenico. Trooper DiGiandomenico
checked Mr. Roxborough's license and
registration card, and then ordered him
out of the car. As “ir. Roxborough con-
formed to a description given to Trooper
DiGiandomenico a few minutes earlier by
a woman who had just been accosted by a
man who exposed himself to her, Trooper
DiGiandomenico placed ‘tr. Roxboroagh under
arrest for open lewdness and indecent
exposure. The woman had been allowed to
nroceed on her way and had left the
107a.
service area. Trooper "ansen then con-
Gucted a 19 to 15 minutes search of ‘ir.
Roxborough's car. The search included
lcoking under the front and back seats,
under the dashboard, through Clothing in
the back of the car, and into the trunk.
The Troopers alleged the search turned
up marijuana. The alleged discovery
terminated the search and resulted in
a further charge of disorderly persons
against Mr. Roxborough. The woman was
subsequently unable to identify “tr.
Roxborough as the sex offender, but “Ir.
Roxborough pleaded guilty to the resul-
tant narcotics charge. (7830-37; 712190-
1215)
This search was clearly valid as a
search incidental to a valid arrest of
Mr. Roxborough insofar as the search
extended to areas under the immediate
control of Mr. Roxborough, i.e. the
passenger compartment. The search of the
trunk and other areas not under the
immediate control of ‘tr. Roxborough was
justifiable as a search for evidence, a
green jacket which the victim testified
the man was wearing, which the officer
had probable cause to believe was in the
vehicle,
52. On April 24, 1969, Mr. Robert
Ratner, a writer, was driving along U.S.
Route 1 with two passengers when he was
stopped by State Trooper Martens because
he had cut another vehicle off while
watchine a passenger take pictures of a
‘ational Guare Armory. Trooper “artens
went immediately to the car and requested
the criver's license and registration
card, as well as identification from the
passengers. ‘’hen one passenger dropped
a plastic baq containine what appeared
to he marijuana while locating his
wallet, Trooper ‘lartens ordered Iir.
"atner and the other passencer out of the
ear. ‘‘e ordered all three to stand
against the back of the vehicle. After
“lacina the passencer under arrest, the
"roaoner mroceeded to retrieve the mari-
juana in the plastic haq. Upon noticing
the sr2ll of incense in the vehicle,
he then lookee through the front and hack
of the car, including shuffling through
‘tr. “atner's clothes. “Ye then proceeded
to search tr, Ratner's rockets and the
nockets of one of the other passengers.
‘In permission was sought for any search.
The search of Mr. Ratner turned up a
plastic bag containing hashish. Upon
this discovery, Trooper Martens placed
tir. Patner under arrest for possession
of hashish. ‘tr. Ratner anc one passencer
nuitimately plealed guilty to cisorderly
persons ciarges.
“‘r, “atner's father filed a conm-
plaint concerning the incident. 4
snecial recort thereon was later pre-
parel. to action was taken against
“roover liartens. (7945-56: T1278-93) The
rotric’rl of the bag of marijuana that had
10%a.
fallen into plain view was a search
based on probable cause to helieve the
vehicle contained contraband. Probable
cause was reinforced by the strong cdor
of incense pervading the passenaer con-
partinent and justified the search of
that passenger compartment, as well as
the search of the pockets of “tr. Ratner
and the other passenger. ‘!oreover, the
search of the area under the nassenger's
immediate control, i.e. the back seat,
was justified as a search incident to an
arrest.
53. mM November 21, 1971 ‘ir. Alan
‘lankowitz, a poet and college student,
was traveling as a passenger with IHir.
Jeffrey Denholtz along the Garden State
Parkway when they were pulled.over by
State Trooper Fvans. The Trooper opened
the door on the passenger side of the car
and asked the driver why he had been
traveling so slowly in the left lane.
le asked hoth if they were intoxicated or
under the influence of drugs. When the
driver was unable to produce a registra-
tion, the Trooper ordered hoth people out
of the car arid frisked the right hand
pocket of Mr. Mankowitz's trousers and
ordered him to empty the contents. Ie
then frisked the left hand trouser
pocket and ordered Mr. Mankowitz to empty
the contents of that pocket. Trooper
Evans next performed a similar search on
Mr. Denholtz. Then he felt around the
glove compartment and underneath the seat
with his hand. At that point, the
110a.
11.C.1.C. check cane back in the negative.
The Trooper then issued Denholtz a summons
for failure to keep to the right and a
verbal warning as to the registration.
(7391-906; 1397-1414)
The frisks of ‘ir. Mankowitz and of
Mr. Denholtz were justified as being
based on a reasonable belief that they
were armed and dangerous in light of the
circumstances surrounding the stop and
the check. The search of the glove
compartment and of the area under the
front seat was one calculated to lead to
the discovery of proof of ownership of
the vehicle. Such a search is proper
where no registration is produced.
54. On June 9, 1970, plaintiff
Benjamin Nechin, then a college student,
was @riving in a Volkswagen sedan with
hiah-back front seats along Route 21 when
he was stopped by State Trooper Bershefski.
The Trooper checked Mr. Nechin's license.
When Mr. Nechin was unable to produce his
registration and while he was looking
for his reaistration card, Trooper
Bershefski walked to the passenger side .
of the car to inspect the inspection Sticker.
Then the Trooper opened the door, sat
down inside and lifted a marijuana seed
from the floor, After arresting Mr.
Nechin for possession of marijuana, the
Trooper searched the car extensively.
The search produced articles alleced to
be narcotics found in the door pocket,
lila.
a compartment closed to view by elastic
binding. The marijuana possession
charge was dropped after Mr. MNechin won
a motion to suppress the evidence. Ir.
Wechin was also given two summonses,
one for driving without the registration
and one for driving a vehicle that had
not been properly inspected. Mr. Nechin
pleaded guilty to both of these.
(7907-920; T1250-78) It was a permissible
search for proof of ownership which led
to the discovery of contraband in plain
view, i.e. a marijuana seed on the floor,
which, in turn, gave Trooper Bershefski
probable cause to arrest Mr. Nechin.
The search of the passenger compartnent,
which produced narcotics in the elastic
door pocket, was incident to a valid
arrest.
55. On May 28, 1971, Mr. Robert
Dean was driving alona Route 34 when he
was stopped by State Trooper Kowal for a
motor vehicle check. After checking his
license and registration card, Trooper
Kowal ordered Mr. Dean out of the
vehicle and commenced a search of the
interior of the vehicle as he had seen
Mr. Dean make a furtive movement. This
movement consisted of quickly moving
his hand underneath the seat as if to
conceal something. After lr. Dean got
out of the vehicle, Trooper Xowal searched
and discovered a red and white cigarette
box containing marijuana. Mr. Dean was
then arrestei for possession of marijuana.
112a.
(T955-57) Under the law pertaining to
furtive movements, a furtive movement in
and of itself does not give rise to
probable cause for a search. The move-
ment must be corroborative of some other
infornation which would indicate that
the movement was desianed to hide some-
thing. Thus, this search was an illegal
search, being without probable cause ané
not consented to.
56. On December 16, 1971, Mr.
Thomas Pathway, who is caucasian, was
driving with !Ir. Tyrone Ross, who is
black, when they stopped on the roadway
in front of the Xing George Inn. It was
about 10 p.m., just prior to the tavern's
closina time. "“Shile Mr. Ross went to
purchase a package of cigarettes, (.
Pathway was approached by State Trooper
“Webber and State Trooper Walsh. Trooper
“Webber testified that his suspicions
about the vehicle arose from a number of
factors: (1) the automobile was parked
in the roadway with its engine running
and a man behind the wheel; (2) the
tavern was just about to close, and (3)
it was unusual to see blatks in this
rural part of New Jersey going into a
tavern alone. After checking Mr.Pathway's
license and registration card, and Mr.
Ross' identification when he returned to
the car, Trooper Walsh began issuing a
summons for stopping in the road.
Trooper Webber, meanwhile, began a
flashlight search of the car, walking
1l3a.
around to the passenger side of Mr.
Pathway's vehicle. Having observed what
appeared to be a movie projector on the
floor of the front seat and a brown paper
bag next to it, Trooper Webber asked if
it belonged to Mr. Pathway. When Mr.
Pathway stated that he had borrowed it,
Trooper Webber asked if Mr. Pathway would
mind if he took a look at the projector.
Mr. Pathway responded, “No, go ahead.”
Then the Trooper opened the passenger
door, removed the projector and ran an
W.C.I.C. check on the serial number,
which was negative. Fe also was able to
determine upon close visual inspection
that there were film cannisters in the
paper bag. After this, Mr. Pathway and
Mr. Ross were allowed to proceed, the
summons now having been issued.
(T1053-57; T1418-29). Clearly, this
search was consented to. There is no evi-
dence that this consent was coerced.
Certainly, the observation of items in
plain view was also proper. Thus, this
search was legal.
57. On January 22, 1972, Mr.
Alexander Greenwood, a college student,
was driving a 1962 Volkswagen bus along
Route 518 with Robert Larson, Angela .
fab oe ie other passengers when he
a ce car pass, traveling in the
opposite direction. The a8 ide car
turned about and started to follow the
vehicle driven by Mr. Greenwood. After
being so followed for approximately three
114a.
miles, Mr. Greenwood was pulled over, just
outside of Hopewell, for having malfunc-
tioning brake lights. The police car was
occupied by State Troover Volkmann and
State Trooper Tool. ‘tr. Greenwood got out
of the vehicle, produced his driver's
license, and explained to the Troopers
that he did not have the registration
card for the vehicle. Trooper Volkmann,
thereupon, frisked Mr. Greenwood's
pockets, as was his practice when a reqi-
stration was not produced, and then pro-
ceeded to demonstrate to “ir. Greenwood's
satisfaction that his taillichts were
not working. Trooper Volkmann then
ordered Trooper Tool to make an 1.C.I.C.
check on the license plates. Trooper
Volkmann next had Mr. Greenwood ao to the
front of the vehicle and had him remove
articles from the convenience shelf. The
Trooper then reached into the vehicle
and removed a cigar box from Robert
Larson's hands, and searched inside of
it for the registration. No permission
was sought for this search.
Trooper Voikmenn then suggested to
Mr, Greenwood that Mr. Greenwood look in
the rear of the van for something that
would corroborate the name that Mr.
Greenwood had given Trooper Volkmann as
that of the owner. Mr. Greenwood even-
tually found a construction helmet with
the owner's name on it. Trooper Volknann
then opened the rear door and demanded
identification of the passengers in the
back seat. Then, spotting a duffle bag
115a.
and ascertaining that it was the property
of Rohert Larson, Troonver Volkmann
ordered Miss Angela Turri to hand hin the
hag. The Trooper then searched inside
the bag with the consent of “r. Larson
and returned it. At that point, Trooper
Tool informed Troorer VYolkmann that the
3.C.I.C. check had come back necative.
Two sivamonses were issued, one for mal-
functioning taillichts anf another for
driving without a registration card.
(T1511-59)- In light of Mr. Greenwood's
failure to produce a registration
card, it was reasonable to helieve that
“Mr. Greenwood was armed and dangerous
so as to justifv a frisk. ‘The search
of the convenience shelf, cigar box and
the rear of the van was proper as a
means of finding vroof of ownership and
was arguably consented to as well. As
to the search of the duffle bag, Mr.
Larson, the owner of the bag, consented
to that.
58. On October 26, 1979, plaintiff
Jeffrey Fogel, an attorney, was stopped
on the Garden State Parkway by two
State Troopers. After checking Mr.
Fosel's license and registration card,
the two Troopers conducted a flashlight
search of the inside anc outside of his
vehicle. (T21-22 This was clearly a
legal search.
59. Mr. Daniel Lewis, a newspaper
columnist, was Criving with his son,
1l6a.
plaintiff George Lewis, when he was
stopped along Route 46 by a State Trooper
for what the Trooper called a “routine
check of his license and registration."
Mr. Lewis asked why he had been stopped.
(He had been pulled over at a merger
point and it had been dangerous for him
to pull off the road.) ‘The Trooper
replied, “Well, we do these things, espec-
ially when you have somebody with long -
hair sitting in the car.” No search
occurred. (T179-182)
60. In March 1971, plaintiff Albert
Porter was stopped on Route 1 in
Princeton by a State Trooper. In con-
ducting a flashlight search of the
vehicle, the Trooper observed a pipe on
the rear deck. Mr. Porter showed the
Trooper the tobacco that went with it.
The Trooper wanted a closer look, but "tr.
Porter responded, "I don't think you have
got a right to do that." The Trooper
then became angry and issued a summons,
which summons was dismissed when the
Trooper failed to show at the hearing.
No search was conducted. (T196-97) The
search was clearly legal insofar as it
went on the grounds of consent. 9bserva-
tion of items in plain view is, of course,
legal.
61. In the spring of 1970, Mr.
Philip Yazbeck, an attorney, was
Griving along the New Jersey Turnpike
when he was stopped by a State Trooper
117a.
named Cox near Exit 4. After offering
his license and recistration, "lr. Yazbeck
was asked to open his trunk, which he
refused to do. The Trooper then allegedly
queried, "Why are you giving me such a
hassle?" Yazbeck responded, “Decause
you don't have a right to look in my
trunk. I have not done anvthing wronc."
When Mr. Yazbeck asked whether he had
been stopped for his appearance, the
Trooper responded that it was hecause of
his apvearance anc his out-of-state
license. (T215-20) However, the defen-
dants were unable to identify the State
Trooper named Cox. (71155-56) ‘loreover,
Mr. Yazbeck testifiec that to the best
of his recollection the Trooper's car had
"Mew Jersey” written on it and that the
Trooper was wearinc a “Ranger” hat and a
tan uniform. As these details were not
the truth (71155-5€), the court finds
that plaintiffs have failed to prove that
this incident involved a New Jersey
State Trooper. “lo search occurred in anv
event.
62. In “id-1969, “Ir. Leslie Tobin,
a businessman, was stonped along the ‘Jew
Jersey Turnpike near "xit 3 hy several
State Troopers in separate cars. Tir.
Tobin got out of his vehicle and locke’
it. While he was showing one of the
Troopers his license and recistration
card, the other Troopers walked around Mr,
Tobin's vehicle looking inside. No
summons was issued. (T495-98) Clearly,
the observation of items in plain view
is proper.
118a.
63. On March 28, 1970, Mr. Philip
Danzig, an architect, was stopped by a
State Trooper at 1 a.m. on the Garden
State Parkway. After checking his license
and registration card, the Trooper asked
Mr. Danzig if he had anything he should
not have had within the vehicle. No
surmons was issued. ‘ilo search occurred.
(527-31)
64. In the spring of 1970, "Mr.
Ronald Greenblatt was traveling along the
jew Jersey Turnpike when he was stopped
by a State Trooper just south of Route 15.
The Trooper checked Mr. Greenblatt's
license and registration. He ordered hin
to get out of the car and open the trunk.
‘Then Mr. Greenblatt cot out of the vehicle,
and before opvening the trunk, he took a
piece of paper and a pencil and began
writing down the Trooper's name. [hen he
next asked the Trooper for his hadge
number and opined that such a search was
illecal, the Trooper refrained from search-
inc the vehicle, asking only if Mr.
Greenblatt had any contrabend or drucs.
When Mr. Greenblatt said he did not, he
was allowed to proceed. ‘lo summons was
issued. (T1602-03) Nad the Trooper gone
on to search, the search would have heen
illegal, as not based on consent or
probable cause. ‘'owever, the search was
not consummatec.
65. On February 26, 1971, Mr. Gilly
11°%a.
was stopped hy Trooper Anthony Kowal for
a routine license and recistration chect-.
There were five people in the car.
Trooper Kowal asked for the license and
registration. ‘Then Mr. Gillv opened
the glove compartment to get the registra-
tion, the Trooper observed a clear
plastic bag containing a substance
believed to be marijuana. ‘Trooper Nowal
placed Mr. Gilly under arrest for
possession of marijuana, ordered hin
out of the car, searched him and hand-
cuffed him. The others were also placed
under arrest, although they were not
handcuffed at that time. After back-up
Troopers arrived, Trooper Kowal searched
the car extensively, discovering a
couple of pipes in the back seat. The
subjects were then taken to the Bordentown
Station and processed. fach was searched
as he was taken into custocy, including
a search inside pockets. (“owal Dep. 30-
41) These searches were clearly legal.
The observation of the .bag of marijuana
in plain view was clearly proper, and
the search of the automobile ane the
occupants thereof prior to taking them
into custodv was also proper as an
incident to the arrests on the marijuana
charge.
66. On March 22, 1972, at about 2
a.m., Timothy Brown and “lichael Adrianse
(aged 14 and 17 respectively) were pic!-ed
up by Troopers !!ydo ane Yanchyshyn on
Route 1 between Trenton and Princeton.
12fa.
The T s then advised Mr. Adrianse
that renig ered being issued a summons for
hitchhiking, The Troopers advised both
of them that they were going to be placed
in the troop car, taken to a barracks,
and ultimately turned over to their.
parents. Prior to putting them in the
police car, Trooper Yanchyshyn searched
the subjects' persons, including ordering
them to unroll their bedrolls. Mr.
Adrianse was issued a summons for begging
rides. The subjects were taken to the
Princeton Barracks. Adrianse's parents
were called and they ultimately came and
picked the two subjects up. (T1670~-
87; Dep. 84-96) The search of Adrianse's
and Brown's persons was clearly proper
as an incident to taking them into
custody. The search of the bedrolls,
which were under their immediate control
at the time, was proper, although they
were later placed in the trunk.
121a,.
SUPPLEMENTAL LETTER-OPINION
OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY,
DECEMBER 29, 1975 |
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of H. Curtis Meanor
District Judge
311 United States Court House
Newark, N.J. 07101
December 29, 1975
RE: George W. Lewis, et al
v.- George F. Kugler, Jr.,
et al
Civil Action No. 1712-70
Frank Askin, Esq.
Rutgers University - Law School
Constitutional Litigation Clinic
175 University Avenue
Newark, New Jersey, 07102
Paul G. Levy, Esq.
Deputy Attorney General
State House Annex
Trenton, New Jersey, 08625
Gentlemen:
All that remains to be done in this case,
in light of the opinion of November 13,
1975, is to assess money damages in favor
of those plaintiffs entitled to them.
122a.
Damages will be assessed only against
named state trooper defendants who par-
ticipated in illegal searches as previous-
ly found. The only trooper defendants
subject to a judgment for damages are
Trooper Peter Hook, Trooper Russell Hawke
and Trooper John Tanner.
Finding No. 1 (set forth in an appendix
to the opinion) involved an illegal search
by Trooper Peter Hook of a vehicle in
which plaintiffs Stua
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