Opposition — Athanasiou v. New Jersey

NO. 80-1113

a __F

|

In THE

Supreme Court of the United States

JANUARY TERM 1981

BYRON PETER ATHANASIOU and

PETER JAMES ELLIOTT,

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

Joun J. Deanan,

Attorney General of New Jersey,

Attorney for Respondent, State of

New Jersey,

State House Annex,

Trenton, New Jersey 08625.

Joun DeCicco,

Assistant Attorney General,

Division of Criminal Justice,

Appellate Section,

13 Roszel Road,

Princeton, New Jersey 08540,

(609) 452-9500

Of Counsel.

LoraneE L. Posner,

Deputy Attorney General,

On the Brief.

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

Questions Presented

The questions presented by the instant petition involve

the impact and applicability of this Court’s recent decision

in Delaware v. Prowse, 440 U.S. 648 (1979). The ques-

tions specifically presented are:

(1) Is the prohibition against random motor vehicle

stops enunciated in Prouse applicable in situations

where a vehicle is halted for articulable reasons in

order to inspect its physical condition and safety?

(2) Assuming that a random stop is involved, is

the decision of the New Jersey Supreme Court in

State v. Carpentieri, 82 N.J. 546, 414 A.2d 966

(1980), according prospective effect only to the

Prouse decision in conformity with other decisions

of this Court affording prospective application only

to Fourth Amendment decisions, especially where

Prouse invalidated random automobile stops, here-

tofore sanctioned in New Jersey by the decisions

rendered in State v. Gray, 59 N.J. 563, 567, 285 A.2d

1,5 (1971); State v. Marchitto, 132 N.J. Super. 511,

514; 334 A.2d 354, 357 (App. Div. 1974), certif. den.

68 N.J. 163, 343 A.2d 450 (1975) ; State v. Gammons,

113 N.J. Super. 434, 437, 274 A.2d 69, 72 (App. Div.

1971), aff’d o.b. 59 N.J. 451, 283 A.2d 897 (1971);

State v. Braxton, 111 N.J. Super. 191, 196, 268 A.2d

40, 45 (App. Div. 1970); rev’d on other grounds 57

N.J. 286, 271 A.2d 713 (1970); State v. Kabayama,

98 N.J. Super. 85, 88; 236 A.2d 164, 167 (App. Div.

1967) ; aff'd o.b. 52 N.J. 507; 246 A.2d 714 (1968) ;

Blanchard v. Town of Kearny, 145 N.J. Super. 246,

248; 367 A.2d 464, 468 (Law Div. 1976), aff’d o.b.

153 N.J. Super. 158, 379 A.2d 288 (App. Div. 1977) ?

TABLE OF CONTENTS

QvuESTIONS PRESENTED ..

NN I acccrteaastscaiisewasiiciassenienedacpintininahinbennninensen

United States Constitution, Article VI, Clause 2

United States Constitution, Amendment IV ..........

United States Supreme Court Rule 17 ..................

Constitution of the State of New Jersey, Article

Fig IID 0 els snccitcioniccessenciaiancnsbceibenneniteunninininien

N.J. Stat. Ann. 24:21-19 (West). Prohibited Acts

N.J. Stat. Ann. 24:21-20 (West). Prohibited Acts

N.J.S.A. 39:4-45 (West) Delaying Traffie Pro-

I Caaciecdi dati titi iat Riciadephuianidinnadiahiniberntieninkeiicianinnes

STATEMENT OF THE LL SEES, ae Oe Oe eee

I a I ao iccskicecsncemessuiciabaonenenienenine

ARGUMENT:

Point I—The principles of the Delaware v. Prouse

are not applicable to the instant factual sit-

NI aches cainicebesscciriceseatintinceienceniinnneninencientiomiiiunen

Point II—The petition does not present a sub-

stantial question because this court’s prior de-

cisions indicate that Delaware v. Prouse should

be applied prospectively only, and thus not to

the instant matter .................-- hike aicediddacigbamentiatatnt

ee spacieaiaadooiliclpcleéaeinnanidinneersinmectnit

ww

TABLE OF CONTENTS

Cases Cited

Almeida-Sanchez v. United States, 413 U.S, 266 (1973) 11

Arkansas v. Sanders, 442 U.S. 753 (1979) ccccccccccccseeeee 13

Blanchard v. Town of Kearny, 145 N.J. Super. 246,

367 A.2d 464 (Law Div. 1976), aff’d o.b. 153 N.J.

Super. 158, 379 A.2d 288 (App. Div. 1977) ....cc.. i, 13

Brown v. Louisiana, —— U.S. ——, 100 S.Ct. 2214

Bape eS ae 12

Brown v. United States, 422 U.S. 916 (1975) oo... 10

Delaware v. Prouse, 440 U.S. 648 (1979) ooo i, 7-14

Desist v. United States, 394 U.S. 244 (1969) 00... 10, 11

Gosa v. Mayden, 413 U.S. 665 (1975) .........cccccccccceceseeeoee 10

Great Northern Ry. Co. v. Sunburst Oil & Refining

oe ei SS 10

Johnson v. New Jersey, 384 U.S. 719 (1960) 00... 12

Linkletter v. Walker, 381 U.S. 618 (1965) oo... 10

Mapp v. Ohio, 367 U.S. 643 (1961) -..........ccceccecccsesecee serene 10

State v. Braxton, 111 N.J. Super. 191, 268 A.2d 40

(App. Div. 1970), rev’d on other grounds 57 N.J.

0G Be Fie Ce ee isinereeieensneneceness i, 13

State v. Carpentieri, 82 N.J. 546, 414 A.2d 966

(| See i, 7, 12, 13

State v. Gammons, 113 N.J. Super. 434, 274 A.2d 69

(App. Div. 1971), aff’d o.b. 59 N.J. 451, 283 A.2d

897 (1971) .. aNd ate cieenetacccccecovecee i, 13

State v. Gray, 59 N.J. 563, 285 A.2d 1,5 (1971) 20000... i, 13

State v. Hock, 54 N.J. 526 (1969), cert. den. 399 U.S.

Eg, erm a Te 8

iv TABLE OF CONTENTS

PAGE

State v. Howery, 80 N.J. 568, 401 A.2d at 635 (1979) .. 12-14

State v. Kabayama, 98 N.J. Super. 85, 236 A.2d 164

(App. Div. 1967), aff’d o.b, 52 N.J. 507, 246 A.2d 714

I RADE. scececiicssiceesacdepeiaahalianiniiddbediapbscdeainedegassaieaietasaaisindadia i, 13

State v. Kahlon, 172 N.J. Super. 331, 411 A.2d 1178

AM -TENCs: BD teianeenndaaidedinnnntaiiiaae 13

State v. Mann, 171 N.J. Super. 173, 408 A.2d 440

LE: TER TSE ceiscwccesninsceictianieniodsniniiaenmini 13

State v. Marchitto, 182 N.J. Super. 511, 384 A.2d 354

(App. Div. 1974), certif. den. 68 N.J. 168, 343 A.2d

OD CRON ' ssinvinsisenctisuiisnendditiiasiannditadatpeliabiimnonesatndiianteandaad i, 13

State v. Patino, 80 N.J. 1, 5 n.2, 401 A.2d 1094 (1980) 12

Stevens v. New Jersey, —— U.S. , 28 Cr.L. 4062

(Docket No. 80-135, cert. den. November 3, 1980) .... 9

Stone v. Powell, 428 U.S, 465 (1976) on. eeeceeeee 10

Stovall v. Denno, 388 U.S. 293 (1967) 2... ceeeeeeee 11

United States v. Peltier, 422 U.S. 531 (1975) .00000.... 10-13

Williams v. United States, 401 U.S. 646 (1970) .00..... 10, 11

United States Constitution Cited

DG Tle: So a lle eitinaninsccecentn caine 2

POT TI ccaditetiienciccsneeinndieeeiiin 2,10,13

New Jersey Constitution Cited

Ee 1, FB eccietibisicnicteenietnctnaiien 3

TABLE OF CONTENTS V

PAGE

Statutes Cited

Ey EIN TET wivsicniisetsshtinsarelnadiisittaasiasadainalcane

San 7 MIEN UC ITD * isiscesrsiecasssvctineonhicarenesnnisieaincbiadeeteasliacie

8 SEE ES a SRL IO Tt 13

eer es TOUTED eetiibnecbicacetaneens ae il 5

es Se | | en eee ; ; 8

Rule Cited

United States Supreme Court Rule:

a eibeisaoessiiadaissecciiaieesesiiceasiseeaaadipilicidhesalabtiiaieinialacitaae ie 2

NO. 80-1113

IN THE

Supreme Court of the United States

January Term 1981

i.

—

BYRON PETER ATHANASIOU and

PETER JAMES ELLIOTT,

Petitioners,

vs.

STATE OF NEW JERSEY,

Respondent.

On Petition for Writ of Certiorari to the Superior Court

of New Jersey, Appellate Division

—o

BRIEF IN OPPOSITION

Opinions Below

The order of the Supreme Court of New Jersey denying

petitioner’s petition for certification to the Superior Court

of New Jersey Appellate Division, —— N.J. ,

A.2d —— (1980), is appended to petitioner’s Petition for

Certiorari as Appendix A-4. The unreported opinion of the

Superior Court of New Jersey, Appellate Division is ap-

pended to the Petition as Appendix A-1 to A-3. The Su-

perior Court of New Jersey, Law Division, Passaic County,

did not issue a written opinion; its oral ruling denying

petitioner’s motion to suppress evidence appears in the

transcript of November 20, 1979, at page 19.

United States Constitution, Article VI, Clause 2.

This Constitution, and the Laws of the United States

which shall be made in pursuant thereof; and all

Treaties made, or which shall be made, under au-

thority of the United States, shall be the Supreme

Law of the Land; and the Judges in every State

shall be bound thereby, anything in the Constitution

or Laws of any State to the contrary notwith-

standing.

United States Constitution, Amendment IV.

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

United States Supreme Court Rule 17.

Considerations Govering Review of Certiorari

1. A review on writ of certiorari is not a matter of

right, but of judicial discretion, and will be granted

only when there are special and important reasons

therefor. The following, while neither controlling

nor fully measuring the Court’s discretion, indicate

the character of reasons that will be considered.

(a) When a federal court of appeals has rendered a

decision in conflict with the decision of another fed-

eral court of appeals on the same matter; or has

decided a federal question in a way in conflict with

a state court of last resort; or has so far departed

from the accepted and usual course of judicial pro-

ceedings, or so far sanctioned such a departure by

a lower court, as to call for an exercise of this Court’s

power of supervision.

(b) When a state court of last resort has decided a

federal question in a way in conflict with the decision

of another state court of last resort or of a federal

court of appeals.

(c) When a state court or a federal court of appeals

has decided an important question of federal law

which has not been, but should be, settled by this

Court, or has decided a federal question in a way

in conflict with applicable decisions of this Court.

(2) The same general considerations outlined above

will control in respect of petitions for writs of cer-

tiorari to review judgments of the Court of Claims,

of the Court of Customs and Patent Appeals, and of

any other court whose judgments are reviewable by

law on writ of certiorari.

Constitution of the State of New Jersey, Article 1, Para-

graph 7.

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, except upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things to be seized.

4

N.J. Stat. Ann. 24:21-19 (West)

Prohibited acts.

A. Manufacturing, distributing, dispensing—Pen-

alties

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

pessess or have under his control with intent to man-

ufacture, distribute, or dispense a controlled danger-

ous substance; or

* * *

b. Any person who violates subsection a. with re-

spect to:

* * *

(2) A substance, in a quantity of one ounce or more

including any adulterants or dilutants, classified in

Schedules I or IT which is a nareotie drug, provided

that there are included at least 3.5 grams of the pure

free base Schedule I or II nareotie drug, is guilty of

a high misdemeanor and shall be punished by im-

prisonment for up to life, a fine of not more than

$25,000.00, or both; or

N.J. Stat. Ann. 24:21-20 (West)

Prohibited acts.

B. Possession, use or being under influence—Pen-

alties.

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 practioner, while

acting in the course of his professional practice, or

except as otherwise authorized by this act. Any

person who violates this section with respect to:

* * *

(2) A substance, in a quantity of 1 ounce or more

including any adulteraents or dilutants, classified in

Schedule I or II which is a narcotic drug, provided

that there are included at least 3.5 grams of the pure

free base Schedule I or IT narcotie drug, is guilty

of a high misdemeanor and shall be punished by im-

prisonment for not more than 7 years, a fine of no

more than $15,000.00, or both;

* * *

N.J.S.A. 39:4-56

Delaying Traffic Prohibited.

No person should drive or conduct a vehicle in such

condition, so constructed or so loaded as to be likely

to cause delay in traffic or accident to man, beasts

or property.

Statement of the Case

On February 24, 1979, at approximately 3:00 p.m., State

Trooper William Bergen of the New Jersey State Police

observed a 1976 white Cadillac automobile with Florida

license plates travelling northbound on the Garden State

Parkway in the center lane at a noticeably slow rate of

speed of 50 miles per hour. Bergen further observed that

the rear of the vehicle was extremely low to the ground

and that both rear tires appeared to be going flat. Fear-

ful of the potential safety hazards resulting therefrom,

Bergen signalled for the vehicle to pull over to the side of

the road. Petitioner Anthanasiou was the operator of the

‘vehicle. Upon request he produced a valid driver’s license

and identification credentials for the vehicle. During this

time Petitioner Elliott was apparently asleep in the rear

seat of the vehicle. Bergen peered inside the vehicle to as-

certain whether there were weapons secreted in the vehicle.

Immediately he detected a strong odor of raw marijuana

emanating from the rear of the vehicle. Upon closer ex-

amination, Bergen further observed numerous marijuana

seeds on the floor of the vehicle. Bergen was able to iden-

tify the odor of raw marijuana due to his extensive back-

ground in narcotics investigations.

Due to the strong odor of marijuana emanating from the

vehicle, the extremely low position of the trunk and the

fact that petitioners were travelling from Florida, Bergen

inquired as to what substance was weighing down the trunk

of the vehicle. Petitioner Anthanasiou appeared extremely

nervous and agitated. Bergen then requested that An-

thanasiou open the trunk of the vehicle. Bergen informed

Anthanasiou, however, that he did not have to comply with

the request. Nevertheless, Anthanasiou voluntarily pro-

ceeded to open the trunk of his vehicle. Contained therein,

in plain view, were numerous bales encased in clear plastic

and sealed with masking tape. Through the clear plastic,

the 360 pounds of raw marijuana were readily visible.

Petitioners were indicted for possession of marijuana in

violation of N.J.S.A. 24:21-20(a)(2) (count one) and pos-

session of marijuana with intent to distribute in violation

of N.J.S.A. 24:21-19(a)(1) (count two). Prior to trial,

petitioners moved to suppress the marijuana seized from

their automobile. An evidentiary hearing was conducted on

November 20, 1979, at the conclusion of which the Honor-

7

able William Marchese, Judge, Superior Court, denied peti-

tioners’ motions to suppress. On January 14, 1980 peti-

tioners entered a negotiated retraxit plea of guilty to

Count Two of the indictment in return for the dismissal

of Count One. On February 22, 1980, both defendants were

sentenced to terms of two to three years in State Prison.

Petitioners appealed the denial of their suppression mo-

tions to the Superior Court of New Jersey, Appellate

Division. On July 14, 1980 the Court affirmed the judg-

ment below in an unreported written opinion. (Peti-

tioner’s Appendix A-1 to A-3). On September 30, 1980

petitioners’ petition for certification was denied by the

New Jersey Supreme Court. (Petitioners’ Appendix A-4).

The instant petition for a Writ of Certiorari to the Su-

perior Court of New Jersey, Appellate Division, follows.

Summary of Argument

Delaware vy. Prouse, 440 U.S. 648 (1979) proscribes ran-

dom motor vehicle stops heretofore permitted in New Jer-

sey by statutory as well as case law. The facts of

record do not implicate the proscription of the Prowse doc-

trine at all. Even assuming the implication of the Prouse

doctrine, however, there is in general, no constitutional

right to retroactive application of exclusionary rule doc-

trines. Since Delaware v. Prowse, supra, represents major

changes for New Jersey law enforcement personnel and

the courts, the opinion should be given only prospective

application. Moreover, great deference should be accorded

to the judgment of the New Jersey Supreme Court which

passed upon this very question and afforded prospective

only application to Prouse in State v. Carpentieri, 82 N.J.

546, 414 A.2d 966 (1980).

8

ARGUMENT

POINT I

The principles of the Delaware v. Prouse are not ap-

plicable to the instant factual situation.

Petitioners contend that insufficient probable cause ex-

isted to jusify the initial stop of their vehicle. This argu-

ment, however, belies the proofs adduced at the motion to

suppress.

As observed in the statement of the case ante, and as

established during the suppression proceedings, the articu-

lable suspicion of a safety hazard existed to mandate the

stop. As was established during the suppression proceed-

ings, the stop of petitioner’s vehicle was not at all ran-

dom, but was precipitated by its weighted down appear-

ance and slow rate of speed in the center lane of a major

highway. Respondent would suggest that the lowered rear

end was symptomatic of poor suspension, faulty shock ab-

sorbers, underinflated tires, or any other of a number of

conditions which may have made the vehicle potentially

hazardous. Accordingly, it was inarguably Trooper Ber-

gen’s duty to direct petitioners’ vehicle to the side of the

road for inspection. See N.J.S.A. 39:4-56 which prohibits

the driving of a vehicle in such a condition as is likely to

delay the flow of traffic or cause an accident. And see,

State v. Hock, 54 N.J. 526, 583 (1969), 257 A.2d 699, cert.

den. 399 U.S. 930 (1970), wherein the Supreme Court of

New Jersey approved the procedure of ordering a vehicle

believed to be in violation of the Motor Vehicles Act to

the curb and requesting the motorist’s driver’s license and

vehicle registration.

Although the Delaware v. Prouse, 440 U.S. 648 (1979)

decision nullifies the random motor vehicle procedure here-

9

tofore sanctioned in this State, it in no way undermines

the general police authority to enforce traffic and vehicu-

lar statutes and regulations. Indeed, this Court’s concern

for the effective maintenance and enforcement of such

motoring requirements find repeated expression in the text

of the Prouse opinion. Its proscription, as previously

noted, encompasses only the totally random stop.

In view of the foregoing, Respondent respectfully sub-

mits that Prouse has no application to the situation at bar.

The stop of the vehicle herein was not random but was

based on legitimate articulable factors.

POINT II

The petition does not present a substantial question

because this Court’s prior decisions indicate that Dela-

ware v. Prouse should be applied prospectively only,

and thus not to the instant matter.

Petitioners contend that the courts of the State of New

Jersey have violated their constitutional right to be free

of unreasonable searches and seizures by refusing to apply

the decision in Delaware v. Prouse, 440 U.S. 648 (1979)

retroactively. The instant stop occurred on February 24,

1979. On March 20, 1979 Delaware v. Prouse, swpra was

decided by the Court.

At the outset, Respondent would note that this court has

recently denied a petition for certiorari submitted by a

New Jersey petitioner, to raise the precise issue raised

herein in Stevens v. New Jersey, U.S. , 26 Cr.L.

4062 (Docket No. 80-135, cert. den. November 3, 1980).

It should be remembered that criminal defendants do

not have a constitutional right to have evidence suppressed.

10

See, Stone v. Powell, 428 U.S. 465, 486-487 (1976); United

States v. Peltier, 422 U.S. 531, 535-537 (1975); Desist v.

United States, 394 U.S. 244, 250 (1969). Rather, they have

the right to be free from unreasonable searches and seiz-

ures. Although of constitutional origin [Mapp v. Ohio

267 US 6438, 649-654 (1961)] the exclusionary rule is merely

a “procedural weapon” for the enforcement of constitu-

tional rights. Desist v. United States, supra at 250; Link-

letter v. Walker, 381 U.S. 618, 638 (1965). Therefore, this

Court in Linkletter specifically declined to give retroactive

effect to its earlier decision in Mapp v. Ohio, supra.

There is no per se constitutional violation inherent in

refusing to grant retroactive effect to new exclusionary

rule doctrines. Indeed, in Linkletter, this Court unequivo-

eally stated that “the Constitution neither prohibits nor

requires retrospective effect. As Justice Cardozo said,

‘We think the Federal Constitution has no voice on the

subject.’” 381 U.S. at 629 (citing Great Northern Ry Co.

v. Sunburst Oil & Refining Co., 287 U.S. 358, 364 (1932).

Moreover, this Court has been extremely reluctant to give

retroactive effect to constitutional rules which do not im-

pact on the truth finding process. Gosa v. Mayden, 413

U.S. 665 (1975). In United States v. Peltier, supra, this

Court found that the exclusion of evidence obtained in

violation of Fourth Amendment guarantees came within

this classification. 442 U.S. at 534-537. See also Brown

v. United States, 422 U.S. 916 (1975).

Respondent emphasizes that Prouse, supra, has no ap-

plication to the case currently under review. (See Point

I, ante). However, should this Court view the instant mat-

ter as an appropriate vehicle to decide the retroactivity

of Prouse, 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., Williams

11

v. United States, 401 U.S. 646 (1970) and Desist v. United

States, supra. Any conceivable doubt as to the Court’s

position on this issue was totally removed in United States

v. Peltier, supra, wherein the condemnation of roving bor-

der patrol searches expressed in Almeida-Sanchez v. United

States, 413 U.S. 266 (1973), was accorded no effect in the

subsequent Peltier case. This Court prefaced its deter-

mination 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 constitutional doc-

trine 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 retroactively. It is indis-

putable, however, that in every case in which the

Court has addressed the retroactivity problem in the

context of the exclusionary rule, whereby concededly

relevant evidence is excluded in order to enforce a

constitutional guarantee that does not relate to the

integrity of the factfinding process, the Court has

concluded that any such new constitutional principles

would be accorded only prospective application.

Umted States v. Peltier, supra at 535; ( emphasis sup-

plied ; citations and footnote omitted).

Respondent 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 Prouse deci-

sion. In Stovall v. Denno, 388 U.S. 293 (1967), this Court

declared that the tests to be used in determining whether

to grant retroactive application to constitutional rules are:

12

(a) the purpose to be served by the new standards,

(b) the extent of the reliance by law enforcement

authorities on the old standards, and (c) the effect

on the administration of justice of a retroactive ap-

plication of the new standard.

Id. at 297. See Johnson v, New Jersey, 384 U.S. 719, 728

(1960).

When these criteria are applied to Prouse it becomes evi-

dent that only prospective application should be given this

opinion. 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. If the police

gain evidence in a manner which they have reason to believe

is acceptable and that evidence is suppressed due to a later

change or clarification of the law in that area the only bene-

fit 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 possibly be any deterrent effect in such

application of the exclusionary rule. The exclusionary rule

and the rules set forth in Prouse cannot be advanced by

retroactive application. See, Brown v. Louisiana,

US. , 100 S.Ct. 2214, 2219 (1980); United States v.

Peltier, supra at 538-539; State v. Carpentieri, 82 N.J.

546, 414 A.2d 966 (1980); State v. Patino, 80 N.J. 1, 5 n.2,

401 A.2d 1094, 1095 (1980); State v. Howery, 80 N.J. 563,

569, 401 A.2d at 635 (1979).

With regard to the second factor, it is clear that in New

Jersey, police officers relied substantially on statutory as

well as case law. The halt preceding the search and seiz-

ure in the ease at bar occurred on February 24, 1979,

approximately one month prior to the Supreme Court’s in-

validation of random stops in Prowse. At the time of the

instant stop, however, random stops for routine license and

13

registration checks were in all respects proper and speci-

fically sanctioned by both statute and decisional law in

this State. N.J.S.A. 39:3-29. See also State v. Gray, 59 N.J.

563, 567, 285 A.2d 1, 5 (1971); State v. Marchitto, 132 N.J.

Super, 511, 514; 334 A.2d 354, 357 (App. Div. 1974), certif.

den. 68 N.J. 163, 343 A.2d 450 (1975); State v. Gammons,

113 N.J. Super. 434, 437; 274 A.2d 69, 72 (App. Div. 1971),

aff'd o.b. 59 N.J. 451; 283 A.2d 897 (1971); State v. Braw-

ton, 111 N.J. Super. 191, 196; 268 A.2d 40, 45 (App. Div.

1970), rev’d on other grounds 57 N.J. 286, 271 A.2d 713

(1970) ; State v. Kabayana, 98 N.J. Super. 85, 88; 236 A.2d

164, 167 (App. Div. 1967), aff’d o.b. 52 N.J. 507; 246 A.2d

714 (1968) ; Blanchard v. Town of Kearny, 145 N.J. Super.

246, 248; 367 A.2d 464, 468 (Law Div. 1976), aff’d o.b. 153

N.J. Super. 158; 379 A.2d 288 (App. Div. 1977). Prior to

the decision in Prouse there was no reason to believe that

license and registration inspections were violative of the

Fourth Amendment. Indeed, this Court in Arkansas vy.

Sanders, 442 U.S. 753 (1979), recognized that both courts

and law enforcement officers have often found difficulty in

applying previous Fourth Amendment decisions to indi-

vidual cases. To hold police officers to a standard which

the Supreme Court of the United States has found the

courts unable to meet would be unreasonable.

Moreover, there can be little doubt that retroactive ap-

plication of Prouse would place a significant burden on the

administration of justice. The New Jersey Supreme Court

in State v. Carpentieri, supra, affirmed State appellate

courts in State v. Kahlon, 172 N.J. Super. 331, 411 A.2d

1178, (App. Div. 1980) and State v. Mann, 171 N.J. Super.

173, 408 A.2d 440, (App. Div. 1979), to hold that Delaware

v. Prouse, supra, would have prospective effect only in

New Jersey. To reach this result, the Carpentieri Court

relied upon this Court’s opinion in United States vy. Pel-

tier, supra, and affirmed its own decision in State v. How-

14

ery, supra and State v. Nash, 64 N.J. 464, 317 A.2d 689

(1974).

Based on the foregoing it is clear that Delaware v.

Prouse, supra, has no application to the case at bar. The

factual circumstances do not implicate the proscription

against random stops, but in any event the decision should

not be afforded retroactive application.

CONCLUSION

For the reasons set forth herein, it is respectfully

urged that the petition for a Writ of Certiorari should

be denied.

Respectfully submitted,

JoHn J. Deanan,

Attorney for Respondent, State of

New Jersey,

State of New Jersey,

State House Annex,

Trenton, New Jersey 08625.

By: Jonn DeCicco,

Assistant Attorney General.

Joun DeCicco,

Assistant Attorney General,

Division of Criminal Justice,

Of Counsel.

Lorane L, Posner,

Deputy Attorney General,

Division of Criminal Justice,

On the Brief.