# Opposition — Epp v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2432%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 831 ## Text No. 79-1861 — AUG4 1980 IN THE Supreme Court of the United States Octoser Term, 1979 ROBERT W. EPP and RAY B. FOSTER, Petitioners, Vs. STATE OF NEW JERSEY, Respondent. On Petition for Writ of Certiorari to the Superior Court of New Jersey, Appellate Division BRIEF IN OPPOSITION JoHN J. DEGNAN, Attorney General of New Jersey, Attorney for Plaintiff-Respondent, State of New Jersey, State House Annex, Trenton, New Jersey 08625. Joun DeCicco, Assistant Attorney General, Division of Criminal Justice, Of Counsel. Tomas A. Penn, Deputy Attorney General, Division of Criminal Justice, On the Brief. Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611 TABLE OF CONTENTS PAGE Opinions BELow 1 STATUTES AND Rutes INVOLVED 2 STATEMENT OF THE CASE ; 4 Reasons ror DenyinG CERTIORARI: Point I—The facts of record did not permit the formulation of the question stated by petition- ers 7 Point IJ—The instant petition does not present a substantial question for resolution since prior decisions of this Court clearly indicate that Arkansas v. Sanders, supra, and United States v. Chadwick, supra, have no retroac- tive application to the instant matter .............. 13 CoNCLUSION ......--- ma 22 Cases Cited Almeida-Sanchez v. United States, 413 U.S. 266 (1973) 16 “Arkansas v. Sanders, 422 U.S. 573 (1979), 99 S.Ct. 2541 7-14, 18, 20, 21 Bowen v. United States, 422 U.S. 916 (1975) seccecsso-. 17 Cady v. Dombrowski, 413 U.S. 483 (1973) cscccscccsu- 11 California v. Minjores, 24 Cal.3d 410, 591 P.2d 514, 153 Cal. Rptr. 224 (Sup. Ct. 1979), cert. den. —— U.S. ——, 62 L.Ed.2d 117 (1979) ae ii TABLE OF CONTENTS PAGE Carroll v. United States, 267 U.S. 132 (1925) .......... 11, 19, 20 Chambers v. Mahoney, 399 U.S. 42 (1970) .......... 11, 14, 19, 20 Chimel v. California, 395 U.S. 752 (1969) 16 Darrow v. Hanover Township, 58 N.J. 410 (1971), 278 A.2d 200 17 Desist v. United States, 394 U.S. 244 (1969) 00... 14, 18 Johnson v. New Jersey, 384 U.S. 719 (1960) ................ 16, 17 Katz v. United States, 389 U.S. 347 (1967) -.....0........ 12 Kemner v. Texas, —— S8.W.2d ——, 25 Cr.L. 3196 (Texas Ct. of Crim. App. 1979) 21 Linkletter v. Walker, 381 U.S. 518 (1965) -....0.020222.20...... 16, 18 Mapp v. Ohio, 367 U.S. 643 (1961) 16 Nastu v. State, 589 S.W.2d 434, 26 Cr.L. 2117 (Tex. Ct. Crim. App. October 3, 1979) 21 Rahas v. Illinois, U.S. ——, 99 S.Ct. 421 (1979) 12 State v. Barnes, 54 N.J. 1 (1969), 252 A.2d 398, cert. den. 396 U.S. 1029 (1970) ...... 12 State v. Boykins, 50 N.J. 73 (1967), 232 A.2d 141 ...... 12 State v. Carpentieri, 82 N.J. 546 (1980), —— A.2d inaestinin e 17 State v. Gray, 59 N.J. 563 (1971), 285 A.2d 1 ....W.. 12 State v. Hannah, 125 N.J. sca 290 (App. Div. 1973), 310 A.2d 512 o° State v. Howery, 80 N.J. 563 (1979), 404 A.2d 632 ...... 16-18 State in the Interest of A.C., 115 N.J. Super. 77 (App. Div. 1971), 278 A.2d 225 ~ a TABLE OF CONTENTS iii PAGE State v. Kahlon, 172 N.J. Super. 331 (App. Div. 1980), —— A.2d —— 21 State v. Koch, 118 N.J. Super. 421 (App. Div. 1972), 288 A.2d 295 17 State v. Lueder, 74 N.J. 62 (1977), 376 A.2d 1169 ...... 17 State v. McCarthy, 130 N.J. Super. 540 (App. Div. 1974), 328 A.2d 10 12 State v. Murray, 151 N.J. Super. 300 (App. Div. 1977), 376 A.2d 1255 i 11, 12 State v. Nash, 64 N.J. 464 (1974), 317 A.2d 689 ............ 16, 17 State v. Naturile, 83 N.J. Super. 563 (App. Div. 1964), 200 A.2d 617 12 State v. Patino, 83 N.J. 1 (1980), —— A.2d ——.... 17 State v. Smith, 113 N.J. Super. 120 (App. Div. 1971), 273 A.2d 120 20 Stovall v. Denno, 388 U.S. 293 (1967) 16, 17, 21 Texas v. White, 423 U.S. 67 (1975) 11 United States v. Berry, 571 F.2d 2 (7 Cir. 1978) (on rehearing) cert. den. sub. nom. Richardson v. United States, 489 U.S. 840 (1978) 21 United States v. Calandrella, 605 F.2d 236 (6 Cir. 1979) 13, 19 United States v. Chadwick, 433 U.S. 1 (1977) ......8-10, 12-14 18, 20, 21 United States v. Choate, 576 F.2d 165 (9 Cir. 1978), eert. den. 439 U.S. 953 (1978) 21 United States v. Dien, 615 F.2d 10 (2 Cir. 1980) ...... 21 United States v. Dioniso, 410 U.S. 1 (1973) -220000... 12 iv TABLE OF CONTENTS PAGE United States v. visas: 576 F.2d 601 (5 Cir. DLR). Srrccandinentoteneied & ‘ 11 United States v. hem 603 F.2d 122 (10 Cir. 197 9) ....14, 21 United States v. Mackay, 606 F.2d 264 (9 Cir. 1979) 21 United States v. Miller, 608 F.2d 1089 (5 Cir. 1979) 21 United States v. Peltier, 422 U.S. 531 (1975) ....15, 17, 18, 20 United States v. Reda, 563 F.2d 510 (1977) ................ 21 ‘United States v. Steward, 595 F.2d 500 (9 Cir. 1979) 21 Williams v. United States, 401 U.S. 646 (1970) ............ 14, 16 United States Constitution Cited Fourth Amendment wodey Uy 20 Statutes Cited N.J.S.A. 24:21-19 # 2 N.J.S.A. 24:21-19(a) N.J.S.A. 24:21-20 2,4 N.J.S.A. 24:21-20(2) (4) 4 Rules Cited R. 3:5-7 R. 3:5-7(1), (d) ... No. 79-1861 IN THE Siuprene Court of the United States Ocrosper Term, 1979 ROBERT W. EPP and RAY B. FOSTER, Petitioners, vs. STATE OF NEW JERSEY, Respondent. On Petition for Writ of Certiorari to the Superior Court of New Jersey, Appellate Division -™ —— BRIEF IN OPPOSITION Opinions Below The New Jersey Supreme Court’s order denying peti- tioners’ petition for certification appears in petitioners’ appendix, at 6a. The opinion of the Superior Court of New Jersey, Appellate Division, not reported, appears in petitioner’s appendix, at la to 5d. Statutes and Rules Involved Unitep States Constitution AMENDMENT IV—SEARCHES AND SEIZURES The right of the people to be secure in their persons, houses, papers, and effects, against unrea- sonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and par- ticularly describing the place to be searched, and the persons or things to be seized. N.J.S.A. 24:21-19. Prohibited acts A.—Manufacturing, distributing, or dispensing—Penalties a. Except as authorized by this act, it shall be un- lawful for any person knowingly or intentionally: (1) To manufacture, distribute, or dispense, or to possess or have under his control with intent to manufacture, distribute, or dispense, a controlled dangerous substance; N.J.S.A. 24:21-20. Prohibited acts B.—Possession, use or being under influence—Penalties A. It is unlawful for any person, knowingly or in- tentionally, to obtain, or to possess, actually or con- structively, a controlled dangerous substance unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional prac- tice, or except as otherwise authorized by this act. (4) Possession of more than 25 grams of mari- juana, including any adulterants or dilutants, or more than 5 grams of hashish is guilty of a high misdemeanor and shall be punished by imprison- ment for not more than 5 years, a fine of not more than $15,000.00, or both; provided, however, that any person who violates this section with respect to 25 grams or less of marijuana, including any adulterants or dilutants, or 5 grams or less of hash- ish is a disorderly person. New Jersey Rules of Court, R. 3:5-7(1), (d): Motion to Supress Evidence and for Return of Property (a) Notice; Time. On notice to the prosecutor of the county in which the matter is pending or threat- ened and to the applicant for the warrant, if the search was with a warrant, and in accordance with the applicable provisions, a person claiming to be aggrieved by an unlawful search and seizure and having reasonable grounds to believe that the evi- dence obtained may be used against him in a penal proceeding, may apply only to the Superior Court or county court of the county in which the evi- dence was obtained to suppress the evidence and for the return of the property seized even though the offense charged or to be charged may be within the jurisdiction of a municipal court. Such mo- tion shall be made within 30 days after the ini- tial plea to the charge unless, the court, for good cause shown, enlarges the time. A motion made before the trial shall be determined before trial. The motion may be made after trial has commenced only if the trial court finds that defendant could not reasonably have made it prior thereto. 4 (d) Appellate Review. Denial of a motion made pursuant to this rule may be reviewed on appeal from a judgment of conviction notwithstanding that such judgment is entered following a plea of guilty. Statement of the Case Salem County Indictment No. I-260-76-7, filed on March 25, 1977, charged petitioners herein, Ray B. Foster and Robert W. Epp, with unlawful possession of marijuana, eontrary to N.J.S.A. 24:21-20(2)(4), and possession with intent to distribute marijuana, contrary to N.J.S.A. 24:21- 19(a), (counts one and two respectively). Petitioners’ filed a motion to suppress evidence on November 3, 1978, before the Honorable Norman Telsey, J.S.C. Said mo- tion was denied. Petitioners’ motion for reconsideration of the aforementioned order denying the motion to sup- press was entertained and denied on January 19, 1979. The following facts were adduced at the motion to suppress evidence. On February 4, 1977, at approximately 10:30 a.m., New Jersey State Trooper Thomas Schlichtig was patrolling the southern end of the New Jersey Turn- pike. Officer Schlichtig was seated in his unmarked patrol vehicle, facing the southbound lane of the thoroughfare when he observed a 1974 Mercury enter the tollgate. (T 9-12 to 16).* The vehicle drove through the toll station and paused briefly at a nearby public telephone booth. As the vehicle slowed to an eventual stop, the officer noted that its left rear brake light was not operational '(T9-17 to 21). *“T” denotes the transcript of petitioners’ motion to suppress on November 3, 1978. 5 The 1974 Mercury pulled back onto the roadway and Officer Schlichtig pursued the automobile in order to alert the driver that his brake light was inoperable. After pursuing the vehicle a short distance, the officer instructed the driver, petitioner Epp, to pull over onto the shoulder of the northbound lane. (T9-23 to 24). Thereupon, peti- tioner Epp exited the 1974 Mercury and walked back to the unmarked patrol vehicle. (T12-9 to 11 and T23-8 to 10). Officer Schlichtig requested that Epp produce his driver’s license and registration. Epp presented a valid Florida driver’s license but remarked that the regis- tration card was in the glove compartment. (T12-13 to 15, T23-14 to 16, T37-19 to 20, T23-21 to 24 and T38-15 to 16). Epp and the officer walked back to the passenger’s side of Epp’s vehicle where the latter requested that Foster, who was seated in the right front seat, hand Epp the regis- tration card from inside the glove compartment. (T24-16 to 17). When Foster opened the door, the officer detected the strong, pungent odor of raw, unburned marjuana emanating from the vehicle. As Foster opened the glove compartment, the officer observed a pack of “Job” cigar- ette papers located therein, Foster retrieved the registra- tion card and handed it to Epp, who in turn presented same to Officer Schlichtig. (T25-2 to 3 and T38-9 to 14). Although the officer could detect the strong odor of marijuana emanating from the vehicle, his visual inspec- tion of the interior thereof did not disclose the physical presence of the contraband. (T27-5 to 9 and T13-6 to 9). Officer Schlichtig walked with petitioner Epp to the rear of the vehicle and advised the latter that the rear brake light was not functioning. Epp appeared to be surprised. (T39-8 to 9, T13-10 to 12). The officer then requested that Foster, who was still seated in the front seat of the 6 vehicle, depress the brake pedal. Foster corlied and the officer pointed out that the light was indeed not fune- tioning. (T31-16 to 17, T13-13 to 14, T28-7 to 10, T41-16 to 17 and T28-14). The officer then inquired of Epp whether he would open the trunk. Epp replied “Sure”. (T13-24). When the trunk was opened the officer noted a “very strong odor” of marijuana emanating from somewhere inside the trunk. He also observed four suitcases and two duffle bags inside of the trunk, The officer’s visual inspection of the trunk disclosed that a green plastic bag was protruding from one of the zipper-type blue suit- cases. (T14-2 to 12, T32-15 to 16, T42-12 to 13). There- upon, the officer pressed down on the suitcases and noted the sound of crackling plant stalks. He therefore reason- ably concluded that the odor was apparently coming from the suitcases and the duffle bags. (T13-24 to 25, T14-5 to 6, T35-7, T35-15 to 19 and T14-10 to 14). Officer Schlichtig requested the keys to the luggage but Epp indicated that he did not have same in his possession. The officer then inserted his fingers into suitcase through the area from which the plastic bag was protruding, broke the plastic bag and removed a substance later identified as marijuana. Epp was then placed under arrest, hand- cuffed and placed in the front seat of the patrol vehicle. Foster, who had been seated in the automobile during this time, was also placed under arrest. (T14-23 to 25). The officer then searched the interior of the vehicle and found the keys to the luggage in the glove compartment. A folder containing records of narcotic transactions was ‘discovered on the front seat of petitioner Epp’s vehicle. The folder belonged to Foster. Two hundred and seven- teen pounds of marijuana were found in the suitcase (which were opened at the scene). (T15-6 to 8, T21-6 to 7, T14-23 to 25, T15-17 to 20 and T19-1). The officer was alone during the entire proceeding. The search of the luggage formed the basis for petitioners’ motion to suppress, Said motion was denied. Petitioners then entered pleas of guilty to the charges, contained in Indictment No. I-260-76-7, pursuant to New Jersey Court Rules R. 3:5-7, while reserving their right to appeal from the denial of the motion to suppress. In an unpublished opinion filed on December 14, 1979, the Superior Court of New Jersey, Appellate Division, affirmed the convictions below (Pal to 5). Petitioners’ petition of certification to by the New Jersey Supreme Court was denied on February 27, 1980. (Pa6). REASONS FOR DENYING CERTIORARI POINT I The famts of record do not permit the formulation of the question stated by petitioners. Relying exclusively on this Court’s decision in Arkansas v. Sanders, 422 U.S. 573 (1979), 99 S.Ct. 2541, petitioners assert that the instant search and seizure of marijuana contravened the Fourth Amendment to the United States Constitution in general, and Arkansas v. Sanders, supra, in particular. They assert that this Court’s decision in that case should be applied retroactively. The State of New Jersey disagrees and asserts that the retroac- tivity of this Court’s decision in Arkansas v. Sanders, supra is not fairly presented under the facts of the present appeal, As a basic premise, we submit that the retro- activity of any given new exclusionary rule or decision of this Court need not be decided where, as here, the new 8 principle of law is not clearly implicated. Our position is predicated on the view that Arkansas v. Sanders, supra and United States v. Chadwick, 433 U.S. 1 (1977), are fac- tually distinguishable from the case at bar. - It is clear that United States v. Chadwick, supra, did not involve the automobile exception to the Fourth Amend- ment’s mandate that searches be conducted pursuant to a search warrant issued by a detached magistrate. In- deed, the facts in United States v. Chadwick, supra, be- lie the argument presented by petitioners herein. In Chadwick, several Amtrak Railroad Officials observed de- fendants place a footlocker into a Boston-bound train. The officials noted that taleum powder was leaking from the footlocker. This powder was often used to camouflage the odor of marijuana. Jd. at 2480. The federal authorities were alerted and were waiting for defendants when the latter disembarked in Boston. Although the authorities had probable cause to search the footlocker and in fact, had two days in which to procure a search warrant, they nonetheless waited until the locker was placed into the trunk of an automobile. While the trunk of the vehicle was still open and before the vehicle’s ignition was turned on, the police seized the footlocker and arrested defend- ants. One and one-half hours later, the footlocker was opened in the Boston Federal Building and found to con- tain marijuana. Jd. at 2480. In reviewing the matter, this Court noted that while the Government had sought to justify the search under the automobile exception to the warrant requirement on appeal to the circuit court, the narrow question which was presented on certiorari was whether a search warrant was required before the authorities could open a locked foot- locker that was properly in their possession and where the authorities had probable cause to believe that the footlocker contained contraband. “Accordingly, [that] case present[ed] no issue of the application of the ex- clusionary rule.” United States v. Chadwick, supra n. 3 at 2481, 2483. In Arkansas v. Sanders, supra, the police, acting on an informant’s tip that Sanders would be arriving at an air- port carrying a green suitcase containing contraband, placed the Little Rock Arkansas Airport under surveil- lance. Authorities of the local police department observed Sanders as he claimed the suitcase from the baggage serv- ice, loaded it into the trunk of a taxicab, entered the veh- icle with a companion and rode away from the scene. Shortly Sanders was riding and requested that the taxi driver open the truck of the taxicab. The latter complied. The police then removed the luggage, opened it and dis- covered 9.3 pounds of marijuana therein. Arkansas v. Sanders, supra at 2588. Thus, the police had probable cause to believe that the suitcase contained marijuana be- fore it was placed into the trunk of the taxicab. Justice Powell, speaking for a majority of the Court, noted that the case had been accepted by writ of certiorari to the Supreme Court of Arkansas “to resolve some ap- parent misunderstanding as to the application of [the Court’s] decision in United States v. Chadwick, [supra], to warrantless search of luggage seized from an automo- bile.” Jd. at 2588. However, as noted by the Honorable Chief Justice Burger, (concurring), the Sanders opinion did not involve the automobile exception to the warrant require- ment. This was particularly true since the police had probable cause to search the luggage before it was placed into the runk of the taxi cab. See, Arkansas v. Sanders, supra at 2594 (Burger, C.J. concurring). In Sanders, supra, the relationship between the luggage searched and the automobile were “purely coincidental,” (as in Chad- a> 10 wick). Id. at 2595. “[Sanders] simply does not present the question of whether a warrant is required before open- ing luggage when the police have probable cause to believe contraband is located somewhere in the vehicle. . . .” (em- phasis in original). The case currently under review presents the question of whether a warrant is required before the authorities may search an automobile in situations where they have no advanced notice that a particular person or his lug- gage contain contraband. Officer Schlichtig noted the strong odor of marijuana emanating from the vehicle when petitioner Foster opened the passenger’s door. A subse- quent visual inspection of the interior of the vehicle did not disclose the presence of contraband. Operating under a reasonable belief that the contraband could be concealed in the trunk, the officer, with petitioner Epp’s consent, opened the trunk of the vehicle. Unable to discern the location of the marijuana, the officer reached into one of the zipper-type suitcases and removed some marijuana. At this point in time, Epp was behind the vehicle’s trunk with the officer, but Foster remained inside apparently free to turn the ignition and to remove both the automobile and its contents from the scene. Thus, exigent circum- stances existed when the officer reached inside of the bag- gage. Neither the automobile nor the contents were under exclusive police control. The inherent mobility of the veh- icle and therefore, the possible destruction of evidence was clear. (T12-13 to 15; T23-14 to 16; T24-16 to 17; T25-2 to 3; T38-9 to 14; T27-5 to 9; T13-14 to 24; T14-2 to 12; T13- 25; T14-23 to 25). The State of New Jersey thus submits that the instant case under review presents a factual situation which is clearly distinguishable from both United States v. Chad- wick, supra and Arkansas v. Sanders, supra. In contrast 11 to those cases, the police officer in the instant matter did not have probable cause to believe that the luggage in ques- tion contained contraband independent from the vehicle itself. At the time of the instant search, to wit, when the officer inserted his hand into the zipper-type suitcase, the automobile nor its contents and occupants were under the exclusive control of the authorities. The placing of the luggage in the trunk of the vehicle was not “purely coin- eidental.” Cf. Arkansas v. Sanders, supra at 2595. The instant search was thus, one of the automobile and not a particular parcel located therein. Moreover, the record below indicated that the officer was present at the scene without additional officers, as was the case in both Sanders, supra, and Chadwick, supra. In United States v. Fontecha, 576 F.2d 601 (5 Cir. 1978), the Fifth Circuit upheld the warrantless search of a drug suspect’s car, including the unlocked suitcase on the back seat of the vehicle, after an officer stopped the man and his companion when they sped away from a permanent border checkpoint. The court in distinguishing Chadwick, concluded that the strong odor of marijuana coming from the vehicle and the exigent circumstances presented, justi- fied the search of the suitcase. The court found that the two-on-one confrontation, involving an automobile, on a desert road was sufficient exigent circumstances to justify the search, judged as of the time the incident occurred and not in light of subsequent events. Jd. at 2425. Since the present search involved the automobile excep- tion to the warrant requirement, the search was constitu- tionally permissible under this Court’s decisions in Car- roll v. United States, 267 U.S. 132 (1925); Texas v. White, 423 U.S. 67, 68 (1975); Chambers v. Mahoney, 399-U.S. 42 (1970), and Cady v. Dombrowski, 413 U.S. 433 (1978). See also, State v. Murray, 151 N.J. Super., 300 306-307 12 (App. Div. 1977), 376 A.2d 1255; State v. McCarthy, 130 N.J. Super. 540 (App. Div. 1974), 328 A.2d 10; State v. Hannah, 125 N.J. Super. 290, 294-295 (App. Div. 1973), 310 A.2d 512; State v. Naturile, 83 N.J. Super. 563, 568, 573 (App. Div. 1964), 200 A.2d 617; State v. Gray, 59 N.J. 563, 568-569 (1971), 285 A.2d 1; State v. Barnes, 54 NJ. 1, 10 (1969), 252 A.2d 398, cert. den. 396 U.S. 1029 (1970), and State v. Boykins, 50 N.J. 73, 81-81 (1967), 232 A.2d 141. It was not unreasonable to undertake the additional in- trusion of a search without a warrant since the automobile, its occupants and contents were not exclusively under po- lice control when the officer reached into the zippered lug- gage. This, coupled with the obvious exigent circumstances, clearly justified the intrusion. See, Arkansas v. Sanders, supra at 2589, n.3. Arkansas v. Sanders, supra, and United States v. Chadwick, supra, having no application to the present case, this Court need not decide the retroactivity of the former case to the case currently under review.* The instant search was thus, constitutionally permissible. * We also submit that since the plastic bag was protruding from the suitcase at the time of the instant search any expectation of privacy regarding the contents thereof was severely undermined. See, Rahas v. Iilinois, US. , 99 S.Ct. 421 (1979). What one knowingly opens to the public even in his own home or office is not subject to Fourth Amendment prohibition. Katz v. United States, 389 U.S. 347 (1967), United States v. Dioniso, 410 U.S, 1 (1973). 13 POINT II The instant petition does not present a substantial question for resolution since prior decisions of this Court clearly indicate that Arkansas v. Sanders, supra, and United States v. Chadwick, supra, have no retro- active application to the instant matter. Assuming arguendo that Arkansas v. Sanders, supra, is applicable to the current matter under review, we sub- mit that this Court should deny certiorari since its prior decisions in the area of the exclusionary rule clearly man- date that the decision in Arkansas vy. Sanders, is to have prospective effect only. Therefore, no substantial ques- tion warranting review by this Court is presented herein. In an unpublished opinion, the Superior Court of New Jersey, Appellate Division, held that Arkansas v. Sanders, supra, does not have retroactive application to the present case. The State of New Jersey wholly agrees with that decision. (Pal to 5). The warrantless search of the suitcase in the instant case occurred on February 4, 1977. On June 21, 1977 United States v. Chadwick, supra, was decided. The Chad- wick Court held that the warrantless search of a foot- locker, as it was about to be placed in the trunk of an automobile, was unconstitutional. On June 20, 1979, Arkansas v. Sanders, supra was decided. That ease held that the warrantless search of a suitcase in the trunk of an automobile was unconstitutional because no exigent circumstances were demonstrated. Both cases of course, were decided subsequent to the search in the instant case. We submit that insofar as both cases may have modified accepted law in the area of the Fourth Amendment, they may not be relied upon in determining the reasonayle- ness of the search in the instant case. United States v. Calandrella, 605 F. 2d 236 (6 Cir. 1979). 14 That this Court’s decisions in Chadwick, supra and Ar- kansas v. Sanders, supra, significantly modified the appli- cation of the exclusionary rule to automobile searches can not be gainsaid. In Chambers v. Maroney, supra, this Court ruled that it was constitutionally permissible to conduct, predicated upon probable cause, a warrantless search of an automobile and its contents which had been stopped on a public highway. Given the detaining of confining the vehicle in the first instance, no constitu- tional distinction was perceived between searching it im- mediately or awaiting the issuance of a search warrant. Chambers v. Maroney, supra at 52. Although the Cham- bers opinion utilizes the “exigent circumstances” analysis and focuses on vehicular mobility, the case was not de- cided on the basis that the automobile in question was in fact, capable of being moved at the instant of the search. Indeed, the vehicle was secured at police headquarters at the time it was searched. Id. at 44, 52. While the Chambers Court observed that “To]jnly in exigent cireum- stances will the judgment of the police regarding prob- able cause serve as sufficient authorization for a search,” Chambers, supra at 51, the Court was apparently con- cerned about inherent rather than actual vehicular mo- bility at the time of the search. Jd. at 52, United States v. Gooch, 603 F.2d 122, 124 (10 Cir. 1979). The State emphasizes that Sanders and Chadwick, supra, have no application to the case currently under review. However, should this Court view the instant matter as an appropriate vehicle to decide the retroactivity of San- ders, supra, we offer the following observations. The application of new extensions of the exclusionary rule has been expressly rejected by this Court. See e.g., Desist v. United States, 394 U.S. 244 (1969), and Williams v. United States, 401 U.S. 646 (1970). Any conceivable doubt 15 as to the Court’s position on this issue was totally obli- terated in United States v. Peltier, 422 U.S. 531 (1975), wherein the condemnation of roving border patrol searches expressed in Almeida-Sanchez v. United States, 413 U.S. 266 (1973), was accorded no effect to the Peltier case. The Court prefaced its determination, the substantive rea- soning of which is considered infra, thusly: Since 1965 this Court has repeatedly struggled with the question of whether rulings in criminal cases should be given retroactive effect. In those cases where the major purpose of new constitu- tional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth- finding function and so raises serious questions about the accuracy of guilty verdicts in past trials ... the doctrine has quite often been applied re- troactively. Jt is indisputable, however, that in every case in which the Court has addressed the retroactivity problem in the context of the exclu- stonary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guar- antee that does not relate to the integrity of the factfindimg process, the Court has concluded that any such new constitutional principles would be ac- corded only prospective application. United States v. Peltier, supra at 535; emphasis supplied; cita- tions and footnote omitted. The State believes that utilization of the proper stand- ards and, more importantly, appreciation of the funda- mental purpose of the exclusionary rule clearly militate in favor of prospective only application of the Sanders decision. Determinations as to the retroactivity of court-fashioned rules of criminal procedure devolve to questions of policy, 16 for “the constitution neither prohibits nor requires retro- spective effect,” Linkletter v. Walker, 381 U.S. 518, 629 (1965) [holding the exclusionary rule announced in Mapp v. Ohio, 367 U.S. 643 (1961) to have prospective appli- cation only]. Accord, Johnson v. New Jersey, 384 U.S. 719, 728 (1960); State v. Howery, 80 N.J. 563 (1979), 404 A.2d 632, and State v. Nash, 64 N.J. 464 (1974), 317 A.2d 689. The test for determining the retroactive effect of a court ruling is based on a balancing of in- dividual rights against society’s need to protect itself and to maintain a stable system of law enforcement. This has given rise to formulation of the three-pronged stand- ard set forth in Stovall v. Denno, 388 U.S. 293 (1967). The components of that test are: (a) the purpose to be served by the new standard; (b) the extent of the reliance by law enforcement authorities on the old standard; and (c) the effect on the administration of justice of the retroactive application of the new standard. 388 U.S. at 297. For example, application of these criteria in Stovall led the Supreme Court to conclude that prospective treatment was mandated for the narrowed scope of searches incident to arrest established in Chimel v. California, 395 U.S. 752 (1969). See Williams v. United States, 401 U.S. 646 (1971). The most recent Supreme Court cases treating the prob- lem of the retroactivity of constitutional rules governing the rights of criminal defendants have mandated prospec- tive application of procedurally based rules that do not affect proof of the actual elements of the offense charged. The rule of Almeida-Sanchez v. United States, 413 U.S. 266 (1973), which applied the Fourth Amendment exclu- sionary standard to roving boarder searches by Border Patrol Agents, has recently been held inapplicable to any 17 search that occurred prior to the date of that decision. Bowen v. United States, 422 U.S. 916 (1975) ; United States v. Peltier, 422 U.S. 531 (1975). When addressing the question of retroactivity, the New Jersey Courts have followed the federal criteria. State v. Patino, 83 N.J. 1 (1980), —— A.2d ——; State v. Car- pentieri, 82 N.J. 546 (1980), —— A.2d ——-; State v. Howery, supra; State v. Lweder, 74 N.J. 62 (1977), 376 A.2d 1169; State v. Nash, supra at 471; Darrow v. Han- over Township, 58 N.J. 410 (1971), 278 A.2d 200; Johnson v. New Jersey, supra; State v. Koch, 118 N.J. Super. 421 (App. Div. 1972), 288 A.2d 295. Thus, in New Jersey, as in the federal courts, competing considerations in each case are weighed by examining: (1) the purpose of the rule and whether it would be furthered by retroactive appli- cation, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect retroac- tive application would have on the administration of jus- tice, Stovall v. Denno, supra at 297 and State v. Patino, supra. With respect to the first prong of the aforementioned test, it is evident that only prospective application should be given to the Court’s decision in Arkansas v. Sanders, supra. The purposes of the exclusionary rule can in no way be advanced by giving retroactive application to new decisions in the law of search and seizure. The purpose of the exclusionary rule is, of course, to deter illegal police conduct and preserve judicial integrity. This objective can only be advanced by first informing law enforcement offi- cers that certain conduct is illegal and, then excluding any future evidence which is obtained in violation of that pro- hibition. If the police gain evidence in a manner which they have reason to believe is acceptable and that evi- is suppressed due to a later change or clarification of the 18 law in that area, the only benefit will be to the criminal who is set free even though there is no doubt as to his guilt. Our society cannot gain since there could not pos- sibly be any deterrent effect in such an application of the exclusionary rule. The exclusionary rule and the rules set forth in Chadwick and Sanders cannot be advanced by retroactive application. See, United States v. Peltier, 422 U.S. 531, 538-539 (1975) ; State v. Howery, supra at 8. Thus application of the foremost of the above criteria, i.e., the purpose to be served by the new constitutional precept, “strongly supports prospectivity for a decision amplifying the evidentiary exclusionary rule.” Desist v. United States, supra at 249. As reiterated in the Desist opinion, all of the cases . . . requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action. ... We cannot say that this purpose would be advanced by making the rule retrospective. This misconduct of the police ... has already occurred and will not be corrected by releasing the prisoners involved. Id. at 249, quoting Linkletter v. Walker, supra at 636. Desist and its progeny [see ante and infra] rest their determination upon true understanding of the exclusionary rule. As emphasized, albeit in a somewhat different con- text, by the Court: The purpose of the exclusionary rule is not to re- dress the injury to the privacy of the search victim: “(T]he ruptured privacy of the victims’ homes and effects cannot be restored. Reparation comes too late.” Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601 (1965). 19 Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unrea- sonable searches and seizures: “The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to dis- regard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). Accord, Mapp v. Ohio, supra. 367 U.S. at 656, 81 S.Ct., at 1692; Tehan v. United States ex. rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed. 2d 453 (1966); Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved. United States v. Calandra, 414 U.S. 338, 347-348 (1974). In the matter herein, the intrusion into defendants’ privacy interests emanating from the detention of his motor vehicle was fait accompli; the deterrent thrust of the exclusionary rule could thus in no way be advanced by the invalidation of police action taken in February 1979 through the invocation of constitutional rights unrecog- nized before March 1979. Secondly, we note that New Jersey law enforcement personnel substantially relied upon this Courts’ holdings in Chambers v. Maroney, supra; Carroll v. United States, supra. Constitutional limitations on the search of lug- gage seized with probable cause during a valid warrant- less search of motor vehicles was not clearly established 20 until Sanders, supra. In the instant case on February 4, 1977, it is clear that the arresting officer relied sub- stantially on cases such as Carroll v. United States, supra and Chambers v. Maroney, supra in searching the suit- case. Prior to the decision in Chadwick there was no reason to believe that suitcases were excepted from the automobile exception. Se» State v. Smith, 113 N.J. Super. 120 (App. Div. 1971), 273 A.2d 120; State in the In- terst of A.C., 115 N.J. Super. 77 (App. Div. 1971), 278 A.2d 225. Indeed, the Supreme Court in Sanders recog- nized that both courts and law enforcement officers have often found difficulty in applying previous Fourth Amend- ment decisions to individual cases. 99 S.Ct. at 2589. Based on the foregoing it is clear that law enforcement reason- ably relied on the principles set forth in Carroll and Chambers. To hold police officers to a standard which this Court has found the lower courts unable to meet would be unreasonable. It is also noteworthy that this Court, in United States v. Peltier, supra at 538, stated: The teaching of these retroactivity cases is that if the law enforcement officers reasonably believed in good faith that evidence they had seized was ad- missible at trial, the ‘imperative of judicial integrity’ is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclu- sionary rule to encompass evidence seized instant manner. Id. Thus, where as here, the arresting officer reasonably con- cluded that his conduct was in accordance with consti- tutional principles applicable at the time of the instant search, the “imperative of judicial integrity” noted in United States v. Peltier, swpra, is not offended. 21 Finally, the State submits that retroactive application of Chadwick and Sanders would place significant burdens on the administration of justice. The courts would be bound to meet a great number of Fourth Amendment claims. Moreover, this burden would be even further in- creased if cases such as the one at bar were held to come within the Chadwick and Sanders decision.