Opposition Brief — Hamilton v. New Jersey

RICHARD T. HAMILTON,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent,

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

GEORGE F. KUGLER, JR.

ATTORNEY GENERAL OF NEW JERSEY

ATTORNEY FOR RESPONDENT.

STATE OF NEW JERSEY

STATE HOUSE ANNEX

TRENTON, NEW JERSEY 08625

WILLIAM WELAJ

DEPUTY ATTORNEY GENERAL

DIVISION OF CRIMINAL, JUSTICE

APPELLATE SECTION

7 GLENWOOD AVENUE

EAST ORANGE, NEW JERSEY 07017

OF COUNSEL AND ON THE BRIEF

PETER S. HAMERSLAG

LEGAL ASSISTANT

ON THE BRIEF

LEGAL MIMEOGRAPHING SERVICE, INC.

561 Broad St., Newark, N. J. (201) 643-4292

TABLE OF CONTENTS

COUN TER-STATEMENT OF THE CASE ......n......00 000 seeoeee l

COUN TER-STA TEMENT OF FACTS..............sccsscsessceeesssseesnes 2

REASONS FOR DENYING THE WRIT

POINT! THE DISCOVERY OF THE BAG CON-

TAINING HEROIN FOUND UNDER-

NEATH THE DASH BOARD WAS NOT

THE RESULT OF IMPROPER POLICE

A. Petitioner's failure to produce a

valid driver’s license or regis—

tration certificate, coupled with

the circumstances confronting Of—

ficer Adcock, provided the officer

with probable cause to search the

trunk and box therein .............cs0000.-sc00-

B. The search of the trunk and the

box therein was valid as a limited

search under the circumstances

encountered by Officer Adcock........ 14

C. Assuming, arguendo, the illegal —

ity of the trunk search, the =.

covery of the heroin was not a

fruit of the illegal search .............000.0 17

D. The detention of Petitioner by the

EERE DIY I at

police officer was valid sees

POINT If THE DISCOVERY OF THE HEROIN

IS JUSTIFIED UNDER THE ‘‘PLAIN

VIEW" DOCTRINE ................. wo cvepeosesserscseecsceres BD

EEL A LL, LOO FENG FLT EME TES LOTT

Adams v. Williams, 407 U.S. 143 (1972) ..............cceceeee

Brinegar v. United States, 338 U.S. 160, 176 (1949) .....

Carroll v. United States, 267 U.S. 132 (1925) .....--0--0000

Chambers v. Maroney, 399 U.S. 42 (1970) ...---.--0+0+e acce

Chimel v. California, 395 U.S. 752, 765 (1969) .«........-- .

Cooper v. California, 386 U.S. 58 (1967)...........0--eeeeees

Cotton v. United States, 371 F. 2d 385 (9 Cir. 1967)......

Davis v. Mississippi, 394 U.S. 721 (1969) .............-+0+.

Draper v. Maryland, 265 F. Supp. 718(D. Md. 1967) .......

Harris v. United States, 390 U.S. 234 (1968) .............-

Harrison v. United States, 392 U.S. 219 (1968) ............

Holloman v. People, 46 Ill. 2d. 311, 263 N.E. 2d. 7

(Sup. Ct. 1970) .......eececeeeeeeeeeeceeeenenesenenseeeeneeeees

Lindsey v. United States, 451 F. 2d. 701 (3 Cir. 1971),

cert. den. 405 U.S. 995 (1972) ........ccccecccccccccceeeees

Lipton v. United States, 348 F. 2d. 591 (9 Cir. 1965).....

Mapp v. Ohio, 367 U.S. 643 (1961) .........eeseeeeeeeeereeenes

Mendoza v. United States, 365 F. 2d. 268 (5 Cir. 1966)..

Orricer v. State, 181 N.W. 2d. 461 (S.D. 1970) .............

People v. Bannan, 372 Mich. 292, 125 N.W. 2d. 875

1964), cert. den. 379 U.S. 645 (1964) ............000e es

People v. Dumas, 25 Mich. App. 575, 181 N.W. 2d. 621

Dr

People v. Goodrick, 11 Cal. App. 3d. 216, 89 Cal.

ptr. 866 (Cal. 1970) ..........-eeeeeeeeeeeseeeeeereneeceeees

People v. Prochnau, 251 Cal. App. 2d. 22, 59 Cal.

ptr. 265 (Cal. 1967) .........ceceeceereeeeeeeeereeeeeeeeees

People v. Smith, 62 Misc. 2d. 473, 308 N.Y.S. 2d. 909

FW. BEGG cecnccccccccccsescescccccsesonssncesesccececeqeseoers

\ 7 a

Silverthorne v. United States, 251 U.S. 385 (1920) ........

Shelton v. State, 3 Md. 394, 239 A.2d. 610 (Md. 1968) ...

State v. Bisaccia, 59 N.J. 586, 279 A.2d. 675 (1971) ....

PAGE

20

17

CASES CITED nued

State v. Boykins, 50 N.J. 73, 232 A.2d. 141 (1967) .......

State v. Braxton, 57 N.J. 286, 271 A.2d. 713 (1970) ......

State v. Campbell, 53 N.J. 230, 250 A.2d. 1 (1969) .......

State v. Contursi, 44 N.J. 422, 209 A.2d. 829 (1965) .....

State v. Daniels, 46 N.J. 428, 217 A.2d. 610 (1966) ......

State v. Davis, 50 N.J. 16, 231 A.2d. 93 (1967), cert.

den. 389 U.S. 1054 (1968) bi tialataniataniaiabiia pcesbideti _

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

State v. Gosser, 50 N.J. 438, 236 A.2d. 377 (1967), cert. -

iis Ty Sees. GE MITE SnAccauhsinessnattutacmidennaiichens

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

ee EE nae

State v. Kabayama, 98 N.J. Super. 85 (A) > Se ), 236

A.2d. 164 (1968), Heck 52 N.J. , 246 A.2d.

TE EEE icrasinctcdibeabiademanniahibteanbiianasbadabasintias

State v. Rys, 183 N.E. 2d. 253 (Neb. 1971) ...............4.

Sumrall v. United States, 382 F.2d. 351 (10 Cir. 1967),

OS, Gi: Te ek I CID ieeincctnceiicncvssicncnnsocss

Swiatek v. United States, 450 F.2d. 985 (7 Cir. 1971),

CUet, Gr GE rts SU CUED kdckemetstatiinsecicnenenecens

aa me, Gi, SE ©, Be GO cdcnenccnccccvscnceesecece

United States v. D’Avanzo, 443 F.2d. 1224 (2 Cir. 1971)

O08, Ga. GG Bs We CHEE cnttcccunaccscccsestuscennces

United States v. Hull, 437 F.2d. 1 (5 Cir. 1971) ...........

United States v. Jackson, 429 F.2d. 1368 (7 Cir. 1970)..

United States v. Owens, 346 F.2d. 329 (7 Cir. 1965),

OO, i, Te es Ee CED cenennancewatncecsetncemetnns

United States v. Powers, 439 F.2d. 373 (4 Cir.), cert.

se Fe of. eee ae

United States v. Rabinowitz, 339 U.S. 56, 83 (1958) .....

United States v. Reid, 415 F.2d. 294 (10 Cir. 1960),

Cae, Geeks GIG Wie, Ge COED cencocnkcctncocsnccsnsccces

United States v. Williams, 436 F.2d. 1166 (9 Cir. 1970)..

Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294,

SOE (IBGE) ccoccescnveseccsvecaccnsessssnssececcnsanessesesesones

8,14,20

13

19

ert tw! De LERY

a lhe tae a tal oP ie

mre WAAL Ie Ve

CASES CITED (Continued)

PAGE

Welch v. United States, 361 F.2d. 214 (10 Cir. 1966),

cert, den. 385 U.S. 876 (1968) SeeCe TOS SSSeeeeeeeeeeeeeeeeee 12

White v. United States, 448 F.2d. 250 (8 Cir. 1971),

cert. den. 405 U.S. 926 (1972) .........ceceecerererereerees 15

Wiseman v. State, 474 P.2d. 671 (Okla. 1970) ..........-++ ll

Wong Sua v. United States, 371 U.S. 471 (1971) ........... 18

NEW JERSEY STATUTES CITED

N.J.S.A. 24:ZI—19 .....cccccccccccccccccccccccccccccceccccccccceees 1

N.J.S.A. 24:21—2O(a (1) .......ceeecececccecccecescececccesececees l

N.J.S.A. 2ZAs LSIL—41 .....cccccccccceccccccccccccsccecencceseresees 1

N.J.S.A. 39:3—29 2... ccccccccccccccccccccccecccccssscccccccsceccese 6

N.J.S.A. 3924-98 2... ccccccccccccccccccccceccccecscsssccscccscsoees 6

N.J.S.A. 39:5—25 2... ccccccccccccccccccccccccececcssscssccscssceres 7

NEW JERSEY COURT RULES CITED

———————————————————————

a l

UNITED STATES CONSTITUTION CITED

Fourth Amendment .........ccccccccsccccccccccccseccccccccecseesecs 7,8,14

OTHER SOURCES CITED

10 A. L.R. Bd. BUG ...cccccccccccccccccccccccccccccccccccccccscceces 11

iv

—?

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

NO. 73-445

RICHARD T. HAMILTON,

Petitioner,

vs.

STATE OF NEW JERSEY,

Respondent.

BRIEF IN OPPOSITION TO PETITION 5

FOR WRIT OF CERTIORARI

COUNTER-STATEMENT OF THE CASE

On October 20, 1971, the petitioner was charged in Bergen

County Indictment No. S-1469-71 with possession of heroin,

contrary to N.J.S.A. 24:21-20 (a) (1), possession of heroin with

intent to distribute, contrary to V_J.S.A. 24:21-19, and possession

of a dangerous weapon, contrary to N.J.S.A. 2A:151-41. (Pa-1).

Prior to trial, petitioner's motion to suppress pursuant to R.

3:5-7 of the Rules Governing New Jersey Courts was heard by the

i hat a Ml a tai eee Te on ay ae oe ep ee Oo

Hon. Fred C. Galda, J.C.C. The motion was denied.

Petitioner was tried before Judge Galda and a jury, and was

found guilty of unlawful possession of heroin. He was found not

guilty of the weapons charge. A mistrial was declared with respect

to the charge of possession of heroin with intent to distribute.

Petitioner was sentenced to not less than three years nor more

than five years in the New Jersey State Prison. (Pa-115).

The denial of the motion to suppress was appealed to the

Superior Court, Appellate Division. (Pa-116). The denial was

affirmed on January 24, 1973. (Pa-118). A petition for cer-

tification to the New Jersey Supreme Court was filed by petitioner

on May 29, 1973, which was denied. (Pa-120).

This Petition for Certiorari was filed on September 7, 1973.

COUNTER-STATEMENT OF FACTS

Officer Albert Adcock had been an employee of the Bergen

County Police Department for the last six and one half years.

(1T2-12 to 2-14)! At 4:10 A.M. on August 30, 1971, he observed a

1966 Pontiac with a Pennsylvania license plate in the area of the

George Washington Bridge. (1T2-22 to 3-7). Officer Adcock

stated that his attention was drawn to this car because it was dirty,

except for a clean, new license plate. He followed the car along

Route 46 and observed the vehicle enter a gas station. (1T3-8 to 3-

12).

The officer entered an adjacent gas station and waited for the

petitioner to conclude his business. Petitioner then exited the gas

station onto the highway and proceeded westerly at a high rate of

speed. In fact, Officer Adcock testified that he was forced to

pursue it at 75 to 80 miles per hour in order to overtake it. (1T3-

13 to 3-24). The petitioner then cut off onto an exit ramp. Officer

Adcock ordered him to pull over; petitioner complied. (1T3-25 to

7).

“IT” refers to the testimony taken on January 24, 1972. “2T™ refers to the

testimony taken on March 6 and 7, 1972, the adjourned date of the

hearing.

wr

Once stopped, Officer Adcock requested petitioner's license

and registration. The petitioner, however, was unable to produce

either a valid license or a valid registration. He did produce two

slips of white paper. According to Officer Adcock, each piece of

paper had “Atlantic City” across the top; one such slip said

“reported registration missing,” and the other said “reported

license missing.” Adcock also stated that in his opinion, neither .

was signed by a police officer. (1T4-12 to 4-19). When asked for

an explanation, the petitioner told the officer that his license and

registration had been stolen a week earlier in Atlantic City. (1T4-

20 to 4-24). The petitioner was unable to provide any other

identification because, as he told the officer, his wallet was also

stolen at the same time. (174-25 to 5-3). Officer Adcock finally

asked the petitioner if he had anything at all that would sub-

stantiate his ownership of the car—such as insurance papers,

repair slips, and the like—and the petitioner replied that he did

not. (1T-4 to 5-10).

Officer Adcock then requested the petitioner to open the glove

compartment of his automobile. Inside was an expired Penn-

sylvania permit and registration for a similiar make automobile

bearing a different license plate number. In addition, there was

an automobile serial number on the expired registration. (1T5-10

to 5-22). Officer Adcock then testified as follows:

Q. What happened then?

A. IL asked him if he could tell me exactly what was in

the trunk of the vehicle, exactly the items that were in

the trunk of the vehicle.

Q. What was the purpose of this question?

A. This was a policy or it’s a thing that you do. It’s a

quick way to find out of somebody owns the car or not

by asking them if they've had the car a while what's in

the trunk. If they can name the items in the trunk, you

can pretty well assume the car is their's. It's not

positive, but it gives you a good indication of which

direction you're going to go.

(1T8-3 to 8-14).

The petitioner agreed to open the trunk, and Officer Adcock

asked him for the keys. At that time, he noticed that the keys were

TN Ey PW eRe ee TOR, EN ED

bi biel ald

Oe ee

lial i ad

oneetantiaiaieaiia iain IEEE ARES BC 9 CAROUGE ADE: me

a ieee

— ~:~» -w-

(1T8-28 to 8-25). The petitioner described the contents of his

trunk as consisting of a spare tire, a jack, and several small boxes.

When the trunk was opened, the objects described by the

petitioner were in the trunk. (1T9-1 to 9-7).

' Adeock then asked the petitioner about the contents of the

small boxes in the trunk. Petitioner initially replied that “It

could be anything,” but later added that they contained small

bags used for the packaging of garlic seed. Adcock then asked if

they might be glassine envelopes, and the petitioner said they

were not. Adcock observed that the boxes were all sealed with the

exception of one, but the flaps on this unsealed box were closed.

He opened it and observed a quantity of glassine envelopes.

Adcock then called for assistance. (1T9-1 to 9-25).

After assistance arrived, Adcock walked toward the front of

the car, opened the driver's door, and squatted down to check the

serial number of the car against the number recorded on the

expired registration. He stated that the serial number was located

on the lower portion of the door jamb. As the officer testified:

Q. What did you observe at this time?

A. I squatted down, got my flashlight out to check the

serial number. While I was looking at the serial

number plate, I looked up eye level and in the center of

the dashboard was a bag, a paper bag, and the bag was

ripped and inside of the bag I could see what appeared

to be a glassine bag or wrapping with a white substance

in it.

(1T10-16 to 10-22).

The substance proved to be heroin, and it was later the subject

of the petitioner's conviction.

On cross-examination, Adcock stated that he did not

remember if he had ever given the petitioner a speeding ticket.

(1714-12 to 14-16). He further stated that he did not recognize the

two slips of paper originally handed to him by the petitioner, and

that he had never seen anything like them before. (1T16-1 to 16-

10). He admitted that upon opening the trunk, it was impossible

to see inside the boxes since the flaps were closed. (1T23-4 to 24-

A).

On A EA on Aa Ee ~

The petitioner testified in his own behalf. On the night in

question, he was coming from the George Washington Bridge and

was on his way home toward Philadelphia. (2T6-15 to 6-20). He

stopped for gas, and then left the gas station at a slow rate of

speed. In fact, the petitioner stated that he observed Adcock’s

police car in the adjacent gas station and purposely drove slowly.

(276-23 to 7-15).

Upon being stopped by the officer, the petitioner was asked

for his license and registration. (2T7-21 to7-23). The petitioner

insisted that he showed the officer notarized documents in-

dicating that he had reapplied for his license and registration.

The petitioner claimed he had received them from Ahatt’s

Automobile Service in Philadelphia, and that these documents

were valid for a period of 30 days, during which time it was legal

to drive in Pennsylvania. (2T11-4 to 11-17).

The petitioner at trial, was unable to produce copies of these

documents, claiming he had misplaced them. In addition, he was

not able to produce the expired registration and license in his

possession at that time, because, according to his testimony, the

car was stolen after the events on the night in question. (2T10-17

to 11-25). He also claimed that he was coerced into opening the

trunk by Officer Adcock. (2T13-8 to 14-5). The petitioner stated

that it was impossible to observe the bag with heroin in it while

looking at the serial number of the car, because he had changed

the location of the serial number after he had purchased it.

(2T18-2 to 18-16). Finally, it was revealed that the petitioner had

a criminal record which included possession of marijuana and

interstate transportation of a motor vehicle. (2T18-17 to 19-6).

PIES POONA TINCT MIT MO MINN

POINT I

‘THE DISCOVERY OF THE BAG CONTAINING

HEROIN FOUND UNDERNEATH THE

DASHBOARD WAS NOT THE RESULT OF

IMPROPER POLICE CONDUCT.

Petitioner contends that Officer Adcock engaged in an

unreasonable and illegal course of conduct which resulted in his

detention for an unduly prolonged period of time. As a result, he

claims that the discovery of the heroin was a fruit of his illegal

detention, and therefore must be suppressed. The Respondent

respectfully submits that the discovery of the heroin was not the

result of improper police conduct.

The trial court, in making its factual determinations at the

Hearing on the Motion to Suppress, found the testimony to in-

dicate that Officer Adcock observed petitioner driving west on

Route 46 at approximately 75 to 80 miles an hour. It is axiomatic

that if a violation of the motor vehicle laws is observed, the driver

may be stopped and issued a summons or arrested. Since

speeding is a motor vehicle offense under N.J.S.A.39:4-98, the

petitioner’s stop and subsequent arrest would be entirely proper.

Furthermore, law enforcement officials are expressly

authorized under N.J.S.A. 39:3-29 to stop motor vehicles at

random and demand production of the operator’s driver’s license

and motor vehicle registration. State v. Kabayama, 98 N.J. Super.

85 (App. Div.) 236 A.2d. 164 (1968), aff'd. 0.b. 52 NJ. 507, 246

A.2d. 714 (1968). The legality of such stops, within the context of

the Fourth Amendment, cannot seriously be questioned. For

example, in Lipton v. United States, 348 F. 2d. 591 (9th Cir. 1965),

an officer stopped aminor driving an out-of-state automobile on a

hunch aroused by the driver's youthful appearance. The driver

could not produce either a license or identification. Upon further

inquiry, the officer was able to obtain more detailed information.

In upholding the stop, the court stated:

“If stopping appellant for the sole purpose of

inquiring whether he held a license for the activity in

which he was engaged was in any sense a ‘seizure,’ it

— am

BERET See ao a 1 nin

was not an ‘unreasonable’ one, and did not violate any

right given appellant by the Fourth Amendment.” Jd.

at 593. F

In addition, in New Jersey, once a driver is detained in this

manner, the failure to produce a registration or a valid license

empowers the officer to arrest the driver. See N.J.S.A. 39:5-25.

It cannot be disputed that Officer Adcock was acting within

his authority in stopping the petitioner for speeding. Nor is it

claimed that the search of the glove compartment was invalid.

‘However, petitioner maintains that the subsequent search of the

trunk and the cardboard box therein was unconstitutional

because no consent was given, and because it could not be

justified as either incident to a valid arrest, or as a limited search

to determine ownership of the automobile. As a result, he argues

that: (1) the search resulted in his illegal detention, and (2) the

discovery of the heroin was the fruit of the illegal search,

necessitating it’s exclusion from evidence.

A. Petitioner’s Failure to Produce a Valid Driver

License or Reigstration Certificate, Coupled With

the Circumstances Confronting Officer Adcock,

Provided the Officer with Probable Cause to

Search the Trunk and Box Therein.

The Fourth Amendment of the United States Constitution

protects against only unreasonable searches and seizures. The

exclusionary rule is a judicial mechanism intended to enforce

that protection by prohibiting the introduction of illegally seized

evidence in criminal prosecutions. Mapp v. Ohio, 367 U.S. 643

(1961). This proscription is directed toward the overzealous

police officer who would utilize his office to invade unreasonably

the privacy of an individual. The rule is not designed to rectify

the wrong already done, but to deter continued or future in-

solence in office, thereby protecting the reasonable expectations

of privacy of individual citizens. Yet, suppression of such

evidence does not penalize the insolent. Instead, the right of the

innocent to be protected from crime is impaired, while at the

same time the image of justice is eroded. The law-abiding citizen

loses as the rate of crime spirals and the guilty go free. See State rv.

Bisaccia, 58 NJ. 586, 279 A.2d. 675 (1971).

bas ea A at a

MRS NT CREST DTD IRS

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The rights of the law-abiding citizen are no less than those of

the criminal. But the Bill of Rights is not intended to apply only

to the innocent. Thus, in each case where suppression is sought,

the court is called upon to reconcile competing values. State v.

Davis, 50 NJ. 16,231 A.2d. 793 (1967), cert. denied 389 U.S. 1054

(1968). In striking this balance, the court must determine

whether the character of the particular intrusion upon the person

or his property was reasonably appropriate under the cir-

cumstances confronting the police officer when the search was

made. Terry v. Ohio, 392 U.S. 1,22 (1968).

The test of reasonableness cannot be stated in rigid and ab-

solute terms but is dependent upon the factual transaction viewed

in a common sense manner. State v. Gosser, 50 N.J. 438, 236 A.2d.

377 (1967), cert. denied 390 U.S. 1035 (1968); State v. Daniels,

46, NJ. 428, 217, A.2d. 610 (1966). Further, in determining the

reasonableness of a search, the common and specialized ex-

perience and workaday knowledge of a law enforcement officer

must he taken into account. State v. Contursi, 44 N.J. 422, 209

A.2d. 829 (1965).

“What (then) is the test of reason which makes a search

reasonable? The test is the reason underlying and expressed by

the Fourth Amendment: the history and the experience which it

embodies and the safeguards afforded by it against the evils to

which it was a response.” Chimel v. California, 395 U.S. 752, 765

(1969), quoting from United States v. Rabinowitz, 339 U.S. 56, 83

(1950) (dissenting opinion of Frankfurter, J.). The principal evil

sought to be forestalled is the invasion of individual privacy by

wholesale exploratory searches conducted under the color of

governmental authority. Warden, Maryland Penitentiary v.

Hayden, 387 U.S. 294, 301 (1967). Because of that, “The scope of

the search must be ‘strictly tied to and justified by’ the cir-

cumstances which rendered its initiation permissible.” Terry v.

Ohio, supra at 19.

By proscribing unreasonable searches, the Fourth Amend-

ment does not bar the warrantless search. Historically, the

warrantless search has been considered particularly appropriate

in situations involving mobile objects. The distinction between

stationary structures and those objects capable of being moved

was recognized by the First Congress in the 1789 Act of Congress.

That Act required a warrant for the search of a building but

——---

SME ab ER RAW SEE IRIE eg PO re A!

permitted a warrantless search of a ship or vessel which federal

agents had “reasonable cause” to believe contained merchandise

subject to duty.

This distinction based on mobility has been logically ex-

tended to situations involving automobiles. Thus, in striking a

balance between the right of society to cleanse itself of its

criminal elements, and the prophylactic judicial device utilized —

to deter official insolence, it has often been noted that judicial

review of automobile searches is governed by more flexible

principles than those normally applied to searches of the home or

other fixed establishments. In State v. Boykins, 50 NJ. 73,232

A.2d. 141 (1967), for example, the court stated:

Here we are not dealing with the privacy of a home, or

of a place of business. We are not dealing with

something which is immobile and is thereby limited in

its usefulness to the criminal element. Rather the

subject is a motor vehicle, which, for all its blessings, is

high among the agencies of crime. The automobile is

perfectly suited for that use. It provides cover for

weapons, contraband, and the fruits of crime. It

supplies a capacity to strike without warning and to

leave without trace. No discussion of crime can ignore

the automobile, or the fact that the incidence of crime

is hinged directly to the amount of privacy we accord

it.” 50 NJ. supra at 81-82.

This view was adopted by this Court in Chambers v Maroney, 399

U.S. 42 (1970). Also see Cooper v. California, 386 U.S. 58 (1967);

Carroll v. United States, 267 U.S. 132 (1925).

Our courts have consistently sustained limited searches of

automobiles based upon the failure of their occupant to produce

proof of ownership or valid operator's license. In State v.

Boykins, supra, for example, it was held that “A traffic violation

as such will justify a search for things related to it. So, four

example, if the operator is unable to produce proof of

registration, the officer may search the car for evidence of

ownership ...” See also State v Hock, 54 NJ. 526, 257 A.2d. 699

(1969), cert. denied 399 U.S. 930 (1970); State v. Campbell, 53

N.J. 230, 250 A.2d. 1 (1969). It is the position of the Respondent

t

:

\

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LOLS IIE Se

PE LU OLE GEO ED

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7

!

PEPE ER Pr a2

5 TNE IOS BARA EINE PEA TE RO aE:

that the search in the instant case was limited in scope and was

based upon petitioner's failure to produce a registration cer-

tificate or a valid driver's license. There thus existed probable

cause to search the automobile for evidence of ownership. It is

therefore submitted that the instant search falls within the

purview of permissible searches and seizures heretofore sanc-

tioned by this Court.

A multitude of factors existed in the instant case which

justified the officer's reasonable suspicion that the automobile

was stolen:

(a) the fact that the petitioner was driving a dirty

automobile with clean license plates;

(b) the petitioner's failure to produce an adequate

driver's license or registration;

(c) the two slips of paper he produced in place of the

license or registration, and, more particularly, the fact

that the automobile was from Pennsylvania and these

papers were from New Jersey;

(d) the petitioner's inability to produce any other

identification;

(e) the discovery in the glove compartment of an

expired Pennsylvania permit and a registration which

represented a similar vehicle with different license

plates;

(f) the fact that the keys to the car were not General

Motors’ originals but rather duplicate keys.

It is not disputed that the search of the glove compartment was

valid as an attempt to ascertain the ownership of the vehicle.

Failing in this endeavor, and without additional police assistance,

Officer Adcock asked the petitioner to describe the contents of

the trunk. In doing so, he was merely utilizing another device to

determine ownership, under reasonably safe circumstances and

affording only a minimal intrusion into petitioner's privacy. The

test was designed to provide the officer with information con-

SELENE SPARY

cerning the status of the vehicle. In the instant case, the

description given by petitioner was general in nature, and the

contents of the trunk minimal. Thus, under these particular

circumstances, although petitioner “passed” the initial test, the

information received was insufficient to substantially dispel the

officer's suspicions. Taking the test one step further, petitioner

was asked the contents of the boxes. The examination of the

contents of one of the boxes was, therefore, necessary to measure

the truthfulness of the petitioner's response and possibly further

dissipate the officers reasonable belief that the vehicle was stolen.

The courts of other states have consistently upheld searches

based upon the failure of drivers to produce valid licenses or

proof of ownership. See State v. Rys, 183 N.E. 2d. 253 (Neb.

1971); People v. Goodrick, 11 Cal. App. 3d. 216, 89 Cal. Rptr. 866

(Cal. 1970); Wiseman v. State, 474 P. 2d. 671 (Okla. 1970); People

v. Smith, 62 Misc. 2d. 473, 308 N.Y.S. 2d. 909 (N.Y. 1970; People

v. Dumas, 25 Mich.App. 575, 181 N.E. 2d. 621 (Mich. 1970);

Orricer v. State 181 N.W. 2d. 461 (S.D. 1970); Shelton v. State, 3

Md. 394, 239 A.2d. 610 (Md. 1968); People v. Prochnau, 251

Cal. App.2d. 22, 59 Cal.Rptr. 265 (Cal. 1967); People v. Thomas,

31 [L2d. 212, 201 N.E.2d. 413 (1964), cert. denied 380 U.S. 936

(1965); People v. Bannan, 372 Mich. 292, 125 N.W.2d. 875 (1964);

cert. denied 379 U.S. 645 (1964); see also Annotation, 10

A.L.R.3d. 314.

Federal courts have also consistently upheld such searches. In

United States v. Jackson, 429 F.2d. 1368 (7th Cir. 1970), the Court

of Appeals upheld a warrantless search of an automobile which

had initially heen detained for failure to display a license plate.

Defendant was unable to produce any document identifying the

owner of the vehicle. The police officer also ascertained that the

license number of the defendant's automobile was fictitious. A

search of the vehicle uncovered marijuana and counterfeit airline

tickets. Supreme Court Justice Clark, retired and sitting by

special designation, rendered the majority opinion for the Court.

In sustaining the search, Justice Clark stated:

“In our view the recent case of Chambers v. Maroney,

399 U.S. 42, 90 S.Ct, 1975, 26 L.Ed.2d. 419 decided by

the Supreme Coart on June 22, 1970 is dispositive of

appellant's point. There Mr. Justice White found that

| oe

Revere TOR CaR eT at wees vowel sa

the rule of permissibility extended to a ‘warrantless

search, based on probable cause, of an automobile

which, having been stopped originally on a highway, is

parked outside the Court House.’ This is far cry from

this case where the officers while still on the scene of

the arrest were informed by police radio that the single

license plate on appellant's car was in fact registered to

another car and owner. This notice itself required a

search of the car to find the ownership papers at the

least.” Id. at 1371.

In Welch v. United States, 361 F.2d. 214 (10th Cir. 1966), cert.

denied 385 U.S. 876 (1968), defendant's vehicle was stopped by a

highway patrolman who requested his driver's license and cer-

tificate of title. Defendant could produce neither document. The

Court held that the officer then had sufficient probable cause for

an arrest and for a subsequent search of the contents of the

automobile. In upholding the search, the court stated:

“We agree with the reasoning of the trial court and the

application of the most recent search and seizure cases

to these facts. The arresting officer had reasonable

grounds for stopping the car and inquiring of Manning

concerning his driver's license and certificate of title.

When he said he had none, the officer undoubtedly

had probable cause for arresting him for driving

without a license in violation of State law. As the trial

court observed, the cursory search before formal arrest

may he subject to some criticism, but it is plain that the

formal arrest was not based upon what the cursory

search revealed, but upon the driver's statement that he

had neither driver's license nor certificate of title to the

car he was driving. Having made a lawful arrest, the

subsequent search of the contents of the car at the time

and place of arrest was appropriately incidental

thereto.” Id. at 215.

In United States v. Owens, 346 F.2d. 329 (7th Cir. 1965), cert.

denied 382 U.S. 878 (1968), a police officer stopped defandant's

car for speeding on the Pennsylvania Turnpike. Upon

questioning, the officer determined that the vehicle was

registered in another individual's name. The officers suspected

that the car was stolen avd questioned one of the defendants

about the contents of the vehicle's trunk. Defendant thereafter

opened the trunk revealing three suitcases. The officer opened

one of these suitcases and found a hypodermic needle as well as

other narcotics paraphernalia. The Court of Appeals sustained

the search, holding that the arrest for speeding was not a

mere excuse for an exploratory investigation. In this regard, see

also Unitd States v. Reid, 415 F.2d. 294, (10th Cir. 1969) cert.

denied 397 U.S. 1022 (1970). After observing that the license

plate on the vehicle has expired, police officers found defendant

sleeping in the vehicle. As a result of the motor vehicle violation,

the glove compartment was searched revealing evidence of a

crime.

In Sumrall v. United States, 382 F.2d. 351 (10th Cir. 1967).

cert. denied 389 U.S. 1055 (1968), police officers had probable

cause to arrest defendant without warrant for either speeding or

driving without a proper license. Having made such lawful arrest,

the subsequent search of defendant at the time ard place of arrest

was found to be appropriately incidental thereto. In Draper v.

Maryland, 265 F.Supp. 718 (D.Md. 1967), while on routine patrol,

a Maryland State Trooper stopped the vehicle for a routine in-

vestigation and license check. Defendant had no license and the

registration was in another person’s name. The subsequent

search of the vehicle was upheld on this basis.

The foregoing State and Federal holding patently demonstrate

that the test utilized by Officer Adcock in searching the trunk and

one of the boxes therein was valid in view of petitioner's inability

to produce a valid registration or driver's license. The arresting

officer clearly possessed reasonable grounds to suspect that the

vehicle was being driven without the consent of the owner, and

thus was juustified in searching for evidence of ownership.

Officer Adcock’s conduct, when considered in light of the totality

of the circumstances, was clearly reasonable under Fourth

Amendment Standards.

Tew ae ee ee 7

a

ee ae Perri ee Bary aay

B. The Search of the Trunk and the Box Therein Was

Valid as a Limited Search under the Circumstances

Encountered by Officer Adcock.

This Court has recognized that the concept of probable cause

is not the sole criterion by which to judge a search. Thus, in Terry

“inarticulate hunches” or on the subjective “good faith” of the

officer. Id. at 22. Instead, an objective standard was developed:

“Would the facts available to the officer at the

moment of the seizure or the search ‘warrant a man of

reasonable caution in the belief that the action taken

was appropriate?” Ibid.

Later in Davis v. Mississippi, 394 U.S. 721 (1969), the Court

hinted that a limited detention under proper circumstances for

the purpose of obtaining fingerprint records might “be found to

comply with the Fourth Amendment even though there is no

probable cause in the traditional sense.” Id. at 727. Thus the

“limited search” was recognized to have vitality in an area other

than that of the protective search.

Although factually inapposite, the objective test announced in

Terry appears to be particularly adaptable to investigative

techniques which involve a minimal intrusion upon the in-

dividual and impart a great benefit to society and law en-

forcement authorities in the detection of crime. See Davis v.

Mississippi, supra. The Respondent respectfully suggests that

the Terry test would be appropriately applied to determine the

reasonabless of the search in the case now before the Court.

Although this Court has not yet extended the application of

the limited search concept to situations other than those related

in Terry and Davis, lower courts have taken that initiative. For

example, in State v. Braxton, 57 N.J. 286, 271 A.2d. 713 (1970), the

New Jersey Supreme Court held that a police officer has the right

to check the serial number on the doorpost of a motor vehicle in

order to verify ownership. In opening the door for that purpose,

the officer was stationed in a position where he had a right to be,

and his observation of the barrel of a gun justified his seizure and

examination of that object.

_— )

—e

Similarly, in United States v. Powers, 439 F.2d. 373 (4th Cir.},

cert. denied 462 U.S. 1011 (1971), the court concluded that the

identification number of an automobile is within the protection

of the Fourth Amendment, particularly where the vehicle's

identification number is not in plain view but in a remote and

barely accessible area under the car. However, considering the

mobility of a motor vehicle, and the expectation of privacy

associated therewith, coupled with a legitimate reason for

checking the serial number, the court concluded that the action

taken by the police officer was appropriate under the cir-

cumstances. Accord Swiatek v. United States, 450 F.2d. 985 (7th

Cir. 1971), cert. denied 405 U.S. 928 (1972).

The objective standard of Terry has been further extended i ia

White v. United States, 448 F.2d. 250 (8th Cir. 1971), cert. denied

405 U.S. 926 (1972).

There, the police received information that a man, using an

assumed name and driving a rented car, possessed counterfeit

money. However, the informant further related that his in-

formation was not based on his personal knowledge but on

hearsay from an unnamed third person. The police determined

that a man under the name related te them had rented a car

matching the description given. That car was later discovered

parked with with its occupant slumped over the steering wheel.

The police ordered the occupant out. As defendant was leaving

the vehicle, one officer reached into the back seat and pulled out

a small plastic bag. The officer opened the bag and uncovered a

syringe. At that time defendant was asked to produce his license

which had been visibly altered. He was arrested for that offense.

However, based on the discovery of the syringe, a warrant was

obtained to search the vehicle for narcotics. Although no nar-

cotics were found, counterfeit twenty dollar bills were uncovered.

The court considered that the officer's initial approach to the

vehicle was similar to an investigative stop. Although the police

officers did not have probable cause to arrest or to search, they

had reason to pursue their investigation further. Moreover, they

had information that the individual involved was from out of

town and might soon disappear. The court analyzed the situation

in light of the standard announced in Terry:

“We must now analyze whether at the time of the

stop ‘the facts available to the officer at the moment of

na lat a als Se oe)

Ae a Pee ewe em

the seizure .. . ‘warrant a man of reasonable caution in

the belief’ that the action taken was appropriate’. . .

Admittedly at this point there was not probable cause

to arrest the man, because the independently verified

pieces of information were not of theraselves in-

criminating. However, we think a stop at this point was

clearly justified to obtain identification of the suspect.

If he was able to present proper identification, the

police would then know that either they had the wrong

man or that the tip was unreliable in one essential

aspect, namely that the man was using a false name. On

the other hand, if he did not have proper identification,

the tip would then be corroborated in another essential

aspect.” Id. at 252.

Thus, the court concluded that “the action taken was ap-

propriate. See also Hollman v. People, 46 Ill.2d. 311, 263 N.E.2d.

7 (Sup. Ct. 1970), in which the court upheld the opening of an

envelope discovered in the course of a stop and frisk in-

vestigation; Mendoza v. United States, 365 F.2d. 268 (5 Cir. 1966),

in which the court upheld a police officer's examination of the

arms of the operator of a motor of a motor vehicle during the

course of a routine traffic arrest. Cf. United States v. D’Avanzo,

443 F.2d. 1224 (2d Cir. 1971) Cert denied 404 U.S. 850 (1972), in

which the court gave great weight to the minimal character of the

intrusion involved in an examination of the contents of a dump

truck not visible without actually climbing onto the truck. See

also Lindsey v. United States, 451 F.2d. 701 (3rd Cir. 1971), cert

denied 405 U.S. 995 (1972), which relaxed the ruics governing

stop and frisk “searches” by airport security personnel.

When Officer Adcock questioned pctitioner with respect to

the contents of the boxes, he answered “It could be anything.”

Later he indicated that the boxes contained small bags used to

package garlic seeds. The suspicious nature of these responses,

when reinforced by the unusual circumstances already con-

fronting the officer, alerted him to the possibility of wrongdoing,

not only with respect to the status of the vehicle, but also with

respect to other criminal activity.

An officer's decision regarding a search and seizure must be

drawn by an act of judgment formed in the light of the particular

situation and with account taken of all the circumstances.”

-1l6—

PALATE SBN DS EE FAO A SADE RIEGEI Rat AIT aI tas + Par

Ce es

Brinegar v. United States, 338 U.S. 160, 176 (1949). Police of-

ficers are trained in the prevention and detection of crime, and

thus events which might normally go unnoticed often indicate to

the trained eye that something is amiss. The police would be

derelict in their duties if they did not investigate such events. State

v. Gray, 59 NJ. 563,285 A.2d.1(1971). Confronted with a

multitude of suspicious circumstances, Offficer Adcock had the

right to make a limited search of the trunk and its contents.

Petitioner additionally contends that the search cannot be

justified since exigent circumstances were not present. On the

contrary, the mobility of the automobile with its attendant

capacity for evasion compelled the officer to investigate im-

mediately. Chambers v. Maroney, supra.

Since the search of the trunk and the box therein was valid, the

discovery of the heroin cannot be considered a fruit, and was

therefore properly admitted.

C. Assuming, Arguendo, the Illegality of the Trunk

Search, the Discovery of the Heroin Was Not a Fruit

of the Illegal Search.

Petitioner contends that the discovery of the heroin under the

dashboard was a fruit of the illegal search of the trunk,

necessitating the exclusion of the heroin from evidence. He

argues that Officer Adcock had been “illegally sensitized” to the

possibility of drug traffic as a result of the trunk search, and that

his “nearly super-human perception” of the bag’s contents would

not have been made absent such search. The Respondent

respectfully submits that even assuming, arguendo, the illegality

of the trunk search, the discovery of the heroin was clearly in-

dependent of the search and was properly admitted.

It is true that evidence obtained through an illegal search or

seizure cannot be used in a criminal prosecution. Mapp v. Ohio,

supra. Thus, the taint of the original, unconstitutional search is to

be viewed as encompassing not only the illegally seized evidence,

but also evidence subsequently discovered through information

acquired in the search. Silverthorne Lumber Co. v. United States,

251 U.S. 385 (1920).

However, even though the discovery of evidence can be traced

back to a constitutional violation, that evidence may still be

admissable. Evidence will not be treated as the fruit of the

mito

metry

PUA ORI Teta RR yn temmensr oak

illegality, the evidence to which instant objection is

made has been come at by exploitation of that illegality

purged of the primary taint.” Wong Sun v. United

States, 371 U.S. 471 (1971).

For if those means are substantially removed and distinguishable

from the illegality, nothing requires application of the ex-

clusionary rule. Harrison v. United States, 392 U.S. 219 (1968).

As noted above, once petitioner failed to produce his license

and registration, the officer was completely justified in searching

for evidence of ownership. Having obtained police assistance,

Officer Adcock took the most expedient step by checking the

serial number in order to determine the car's status. Clearly, the

iscovery of the glassine bags in the trunk did not lead to the

search for the serial number of the vehicle, because the officer

would have searched -for the number in any event. Furthermore,

the testimony reveals that the heroin was in plain view of the

officer when he was conducting his search, and the trial court was

at liberty to credit the officer's testimony in this regard. It would

be only natural for a law enforcement official to become

suspicious of criminal activity upon seeing @ bag hanging from

beneath a dashboard, especially in light of the surrounding

circumstances, and become sensitized to possible drug traffic.

It cannot be doubted that the search for the serial number was

valid. In United States v. Hull, 437 F.2d. 1 (Sth Cir. 197 1), an

illegal search preceded the obtaining of the vehicle's serial

number, and the defense urged suppression of all evidence. The

court held that:

“The vehicle identification came from an independent,

lawful source wholly apart from the unlawful search

such information together with other

and, therefore,

ly admitted by the

facts obtained by its use were proper

district court.” Id. at 4.

—I8—

AROMA (Atte os

In Cotton v. United States, 371 F.2d. 385 (9h Cir. 1967), a

police officer investigating a suspicious occurrence detained and

questioned an individual relative to his car for purposes of

legitimate reasn to do so. Under these circumstances, merely to

check the serial number in order to more positively identify the

car is reasonable and does not constitute a search. Id. at 393. The

- court further observed:

“(Whe are of the opinion that, when a policeman... has

reasonable cause to belive that a car has been stolen, or

has any other legitimate reason to identify a car, he may

open a door to check the serial number” - + - Cotton v.

United States, supra, at 394; accord, United Staes v.

Johnson, supra, at 44],

See also, United States v. Williams, 436 F. 2d. 116 (9th Cir. 1970).

Even assuming, arguendo, the illegality of the trunk search, it

is respectfully submitted that the discovery of the heroin was not

a fruit of that search. As will be shown in Point II, infra, it was

discovered in plain view during a valid search for the vehicle’s

serial number and was accordingly properly introduced into

evidence.

D. The Detention of Petitioner by the

Police Officer was Valid.

As indicated above, Officer Adcock was clearly justified in

stopping petitioner for speeding. Furthermore, the failure of

petitioner to produce a valid driver's license or registration

supplied the officer with probable cause to search the vehicle for

evidence of ownership. However, the petitioner argued that after

searching the glove compartment of the ear, Officer Adcock

should have immediately checked the serial number of the car

with that found on the registration card in the glove com-

partment, in order to establish ownetship with a minimal amount

of interference with petitioner's personal security and privacy.

Since he did not do this until (1) the trunk had been opened; (2)

-I9~

RO Rey Oe

“Tet eee

the contents of a box examined; (3) petitioner had been patted

down; (4) petitioner was ordered to roll up his sleeves; and (5)

police assistance was summoned, petitioner contends that his

detention was prolonged and unreasonable. Such a contention

lacks substance.

Initially, it is to be noted that Officer Adcock had the right to

“nat down” the petitioner to remove any weapons which the latter

might seek to use in order to resist arrest or effect his escape,

such action being valid either as incident to an arrest, Chimel v.

California, 395 U.S. 752 (1969), or necessary for the protection

and safety of the officer under the particular circumstances of the

case. Adams v. Williams, 407 U.S. 143 (1972); Terry v. Ohio,

supra.

Petitioner's testimony with respect to being ordered to roll up

his sleeves was contradicted by Officer Adcock’s testimony, and

was not a part of the trial court’s factual determinations. It can,

therefore, be dismissed.

Finally, as shown above, the search of the trunk and boxes

therein was valid, and did not violate petitoner’s Fourth

Amendment rights. Officer Adcock’s course of conduct was

dictated, to a large extent, by concern for his personal safety. He

engaged in those actions which could be conducted without

police assistance, and resulting in minimal intrusions into

petitioner's privacy in an attempt to determine ownership of the

car. It was only after such attempts failed to dispel the officer's

doubts as to ownership that he summoned police assistance, in

order to safely check the serial number located at the bottom of

the door jamb.

Petitioner's argument that an immediate check of the serial

number was mandated falls of its own weight. A correlation of the

expired registration card with the serial number would have

added little toward determining ownership of the car, since

petitioner was without identification. Therefore it was not, in any

event, the most expedient step to take. Furthermore, police of-

ficers are not bound by a rigid course of conduct which must be

adhered to in such a situation, but instead must and should act

according to the particular circumstances encountered in each

case. It cannot seriously be advanced that the detention of

petitioner in the instant case, encompassing approximately ten

minutes, can he said to be unduly prolonged and violative of

Fourth Amendment standards.

IN a I eh

Peete ai iA Se ih Sie taal Vd KSC labs il atts CS ah Wears ah hos iy soe Nk tae BS tt

detention.

ate

= | a

POINT Il

THE DISCOVERY OF THE HEROIN

IS JUSTIFIED UNDER THE “PLAIN

VIEW” DOCTRINE.

Petitioner argues that when Officer Adcock opened the door

to obtain the serial number, he was there on a pretext in that he

was actually looking for evidence of illegal drug traffic. He,

therefore, maintains that the “plain view” doctrine is inap-

plicable. The Respondent respectfully submits that the discovery

of the heroin was valid under the “plain view” doctrine.

In Harris v. United States, 390 U.S. 234 (1968), petitioner was

arrested for robbery when entering his car, and the vehicle was

later towed to the precinct as evidence because it had been seen at

the robbery site. Pursuant to a police regulation, and without a

warrant, the arresting officer searched the car to remove all

valuables. While securing the doors and windows, he saw an

automobile registration card in the name of the robbery victim on

the metal stripping over which the door closed. The Court, in a

per curiam opinion, held that the card was properly admitted into

evidence, stating:

“Once the door had lawfully been opened, the

registration card, with the name of the robbery victim

on it, was plainly visible. It has long been settled that

objects falling in the plain view of an officer who has a

right to be in the position to have that view are subject

to seizure and may be introduced into evidence.” Id. at

235. (emphasis added).

As noted above, Officer Adcock had the right to check the

vehicle’s serial number once petitioner filed to provide a valid

license and registration. Because he was without police

assistance, he postponed this check until after other steps had

been taken to determine ownership. The contention that in

making that search, he was on a pretext, is unsupported by the

facts of the case.

OLB AS Se See St.

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beast de

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UE Ne or a Sei ee Oe

The Respondent, therefore, respectfully submits that the

discovery and seizure of the heroin fell with the “plain view”

doctrine, and that it was properly introduced into evidence.

In light of the above, it is the Respondent's view that

petitioner has failed to demonstrate sufficient grounds for

granting certiorari, since the decision is in accord with ap-

plicable decisions of this court as well as other state and federal

courts.

CONCLUSION

For all the foregoing reasons, respondent, State of New Jersey,

respectfully prays that the writ of certiorari sought in the above

named petition pending before this court not issue.

Respectfully submitted,

GEORGE F. KUGLER, JR.

ATTORNEY GENERAL OF NEW JERSEY

BY:

WILLIAM WELAJ

Deputy Attorney General

William Welaj

Deputy Attorney General

Division of Criminal Justice

Of Counsel and On the Brief

Peter S. Hamerslag

Legal Assistant

On the Brief

—24—