# Opposition Brief — Hamilton v. New Jersey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 1065

## Text

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

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(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

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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

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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

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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.

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detention.

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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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1030%3A2. Public record. Not legal advice.