State v. Slockbower

397 A.2d 1050, 79 N.J. 1, 1979 N.J. LEXIS 1172

• Court: Supreme Court of New Jersey
• Decided: January 12, 1979
• Status: Published

Opinions

The opinion of the court was delivered by

Conford, P. J. A. D.

(temporarily assigned). This appeal presents the question whether under the federal¹ and State² constitutional provisions concerning search and seizure the police may routinely impound a motor vehicle and in the course thereof inventory its contents on the occasion of the arrest of its driver for a motor vehicle offense. We hold such action by the police to he an unconstitutional invasion of the driver’s zone of privacy unless the driver either consents or is given a reasonable opportunity to make other arrangements for the custody of the vehicle. •

On March 13, 1975 defendant was arrested by Jersey City police on an outstanding warrant for driving a motor vehicle while on the revoked list. He was at the time driving an automobile registered to his wife. The vehicle was impounded and searched on the spot. The search turned up a pen gun and ammunition and defendant was charged with and indicted for statutory criminal violations in that regard. Defendant was successful on a motion to suppress the evidence for illegality of the search. The Appellate Division granted the State’s motion for leave to appeal, and, by a divided vote, reversed. 145 N. J. Super. 480 (1976). We granted leave to defendant to appeal to this Court. 74 N. J. 255 (1977).

Three members of the Jersey City Narcotics Squad were on duty in an unmarked vehicle on the afternoon of the date in question. Two of them recognized defendant, whom they knew, driving a car. They had unsuccessfully executed a search warrant at his home two years before. They were also aware that a warrant for his arrest for driving on the revoked list was outstanding. Defendant was motioned over to a street intersection and stopped. As he stepped out of the vehicle he was placed under arrest. The car was searched at once and a .22 caliber pen gun and a box of .22 caliber ammunition were found in the closed but unlocked glove compartment.

On the motion to suppress, arresting Detective Roth testified that it is standard procedure for “the safekeeping of the vehicle” to impound a vehicle and inventory its contents when the driver has been arrested. This was the only justification for the search given by the police — a valid inventory of an impounded vehicle. However, no impounded vehicle report was filled out until after the car was taken to a precinct station and a second search conducted. The report was then completed and the vehicle taken to a car pound. The reason for the impoundment listed on the police report is “Pen gun found in auto.” In fact no detailed report of the contents of the ear was made. Despite the fact that various tools were in the car the report lists them collectively as “numerous tools.”

Judge Thuring, sitting as motion judge, held there was no valid justification for the impoundment. There was no statútory mandate therefor; the car was neither disabled on the roadway nor a nuisance; it could have been safely parked and locked at the scene since the neighborhood was not dangerous. The judge expressed his disbelief that the im-poundment was pursuant to any standard procedure. Noting that the inventory report stated as the reason for the im-poundment the finding of the pen gun in the car, he concluded that the search preceded the impoundment and that the impoundment had been a pretext to justify the prior search.

In reversing, the Appellate Division majority relied on South Dakota v. Opperman, 428 U. S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), decided some six months after the grant of the suppression motion. The court found that Opperman was controlling and that “[i]t recognized and approved the standard police procedure of impounding, inventorjüng and taking custody of a car when its occupant is arrested and removed therefrom.” 145 N. J. Super. at 484. It further found that the detectives acted reasonably in this case in following police regulations. The court cited N. J. S. A. 39 :4-136 as additional support for the police action. The motion judge’s finding that the car was searched before it was impounded was rejected as having no support in the record. In dissent from the Appellate Division decision, Judge Botter distinguished Opperman on the ground that it involved a parked, unoccupied vehicle in violation of overnight parking restrictions whereas in the instant case there was no indication that defendant could not have lawfully parked the car and arranged to have it picked up by his wife or someone else. He would have required that where an arrest is solely for a motor vehicle offense and the vehicle can be lawfully parked and is not needed as evidence the consent of the owner or operator of the car should be obtained by the police before its impoundment. 145 N. J. Super. at 491. It was also Judge Botter’s view that the motion judge’s finding that the search preceded the impoundment should have been sustained.

There is a substantial body of authority considering the circumstances under which, consistent with constitutional strictures against unreasonable searches or seizures, police may or may not take custody of (impound) a motor vehicle and inventory its contents, necessarily involving a prior search of the vehicle. See Annot. 48 A. L. R. 3d 537 (1973). This Court has not had prior occasion to deal with the subject in any context comparable to the instant situation. In State v. Hock, 54 N. J. 526 (1969), cert. den. 399 U. S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970), an impoundment and search were upheld on probable cause to believe the car was stolen. There is no need here to consider the area of exceptions to the warrant requirement in relation to the search of a car stopped in motion on probable cause to believe the vehicle contains seizable objects, see Chambers v. Maroney, 399 U. S. 42, 90 S. Ct. 1974, 26 L. Ed. 2d 419 (1970), or a search incident to the valid arrest of an occupant or driver, see Preston v. United States, 376 U. S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964), as neither of these exceptions to the warrant requirement is argued to exist here. Further, although by reason of the mobility and other characteristics of a motor vehicle, it is recognized that the search and seizure of a car may be found reasonable in circumstances where that of a home or office would not, see State v. Boykins, 50 N. J. 73 (1967), nevertheless it remains the law that motor vehicles constitute areas of privacy of persons and effects within the general protection of the Fourth Amendment and our own Constitution. United States v. Ortiz, 422 U. S. 891, 896, 95 S. Ct. 2585, 45 L. Ed. 2d 623 (1975); Coolidge v. New Hampshire, 403 U. S. 443, 461, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Marshall v. Barlow’s Inc., 436 U. S. 307, 315 note 10, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978).

The problem for resolution in the present case does not extend to a survey of the general legitimacy of a police impoundment and inventory of the contents of a vehicle as the facts here presented compel the conclusion that there was no valid impoundment in the first instance but rather an unjustifiable investigatory search in the pretended guise of an impoundment and routine inventory.

The recent decision of the United States Supreme Court in South Dakota v. Opperman, supra, 428 U. S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000, is of only limited significance in this regard. In that case the Court framed the issue in terms of the justification to search a lawfully impounded” vehicle. Id. at 365, 96 S. Ct. 3092. The vehicle in Opperman was illegally parked overnight in an area of town where parking on the streets was not permitted from 2 a.m. until 6 a.m. It was ticketed at 3 a.m. and again at 10 a.m. for an overnight parking violation. Shortly thereafter, the vehicle was towed to the city impound lot. Articles of value were observed from outside the car. The police unlocked the door and searched the interior, including the unlocked glove compartment, using a standard inventory form to list the contents. “Standard- police -procedures” were followed. A bag of marijuana was found in the glove compartment.' In the subsequent prosecution for possession of the drug defendant moved to suppress the evidence. A denial- of that motion was reversed by the Supreme Court of South Dakota on grounds of violation of the Fourth Amendment. On certiorari, the Supreme Court reversed. The Court broadly implied approval of police assuming custody of vehicles as part of the “community caretaking functions” in various contingencies such as vehicle accidents and violation of parking ordinances-jeopardizing “the public safety and the efficient movement of vehicular traffic.” 428 U. S. at 368-369, 96 S. Ct. at 3097. The Court found that after a valid impoundment “local police departments generally follow' a ¡routine practice of securing and inventorying the automobiles’ contents.” Id. at 369, 96 S. Ct. at 3097. Three purposes for inventorying were discerned: protection of the owner’s property while it remains in police custody; the protection of the police against claims over lost properly'; and the protection of the police from potential danger.' Ibid.

While the Op'perman plurality (Justice Powell filed a concurring opinion) stated that “these caretaking procedures” had “almost uniformly” been upheld by the state courts, 428 TJ. 8. at 369, 96 $. Gt. 3092, there has been a substantial and growing minority of jurisdictions which have insisted upon a factual showing of substantial police need, in the light of the constitutional regard for the privacy interests of automobile drivers, before approving the impoundment of a motor vehicle. Mozzetti v. Superior Court of Sacramento County, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P. 2d 84 (S. Ct. 1971); People v. Miller, 7 Cal. 3d 219, 101 Cal. Rptr. 860, 496 P. 2d 1228 (S. Ct 1972); State v. Boster, 217 Kan. 618, 539 P. 2d 294 (S. Ct. 1975); State v. Singleton, 9 Wash. App. 327, 511 P. 2d 1396 (Ct. App. 1973); State v. Hardman, 17 Wash. App. 910, 567 P. 2d 238 (Ct. App. 1977); Granville v. State, 348 So. 2d 641 (Fla. Dis. Ct. App. 1977); State v. Goodrich, 256 N. W. 2d 506 (Minn. S. Ct. 1977); State v. McCranie, 137 Ga. App. 369, 223 S. E. 2d 765 (Ct. App. 1976); City of Danville v. Dawson, 528 S. W. 2d 687 (Ky. Ct. App. 1975); Duncan v. State, 281 Md. 247, 378 A. 2d 1108, 1116 (Ct. App. 1977); Dixon v. State, 23 Md. App. 19, 327 A. 2d 516 (Ct. Sp. App 1974); State v. Jewell, 338 So. 2d 633 (La. Sup. Ct. 1976); United States v. Pannell, 256 A. 2d 925 (D. C. Ct. App. 1969). Federal decisions in general accord are United States v. Lawson, 487 F. 2d 468 (8 Cir. 1973); United States v. Edwards, 554 F. 2d 1331 (5 Cir. 1977); United States v. Hellman, 556 F. 2d 442 (9 Cir. 1977). See also State v. McDaniel, 156 N. J. Super. 347, (App. Div. 1978).

It has been persuasively stated in a number of cases, in seeking a rationale that would duly balance the right of privacy against legitimate police safekeeping function’s, that if the circumstances that bring a vehicle properly to the -attention of the police are such that its driver, even though' arrested, is able to make his own arrangements for its cus-' tody, or if the vehicle can be conveniently parked and locked without constituting an obstruction of traffic or other public danger, the police should permit that action to be taken rather than impound it against the will of the driver and thereafter. search it routinely. Thus, in State v. Goodrich, supra, defendant had been arrested for driving while intoxicated. His mother and brother quickly arrived at the scene after defendant telephoned them with police permission from a service station across the street.

We hold that where police assumed custody of defendant’s automobile for no legitimate state purpose other than safekeeping, and where defendant had arranged for 1 alternative means, not shown to be unreasonable, for the safeguarding of his property, impoundment of defendant’s automobile was unreasonable and, therefore, the concomitant inventory was, an unreasonable; .search under the Fourth Amendment. We accordingly reverse.

[ 256 N. W. 2d at 507]

In determining the reasonableness of an impoundment, the court posited the following test:

The state’s interest in impounding must outweigh the individual’s Fourth Amendment right to be free of uni'easonable searches and seizures; although the expectation of privacy with respect to an automobile is significantly less than the traditional expectation of privacy associated with the home, this interest is still constitutionally protected, South Dakota v. Opperman, supra.

[ 256 N. W. 2d at 510]

Likewise, in Altman v. State, 335 So. 2d 626 (Fla. App. 1976), defendant crashed his car in a high speed chase with the police. He was arrested and attempted to have a friend at the scene take over control of his vehicle. The court found impoundment in this instance to be unnecessary.

A common pattern running through these eases is that the police must act in good faith and not use the inventory procedure as a subterfuge for a warrantless search of a vehicle. A prime criterion to determine if the police have takén lawful custody of a motor vehicle is whether or not it is justifiable for the police, acting under routine police procedure, to become bailees of the vehicle. Here it was stipulated the defendant desired and had the ability to have his car removed by someone without intervention of the police. Therefore, the underlying necessity for police custody did not exist. When the driver of a motor vehicle is arrested and a reliable friend is present, authorized and capable to remove an owner’s vehicle which is capable of being safely removed; or where the arrestee expresses a preference as to towing service and designates an appropriate carrier and destination for the vehicle, it is unnecessary for the police to impound it. In either of these instances the rationale for an inventory search does not exist.

[ 335 So. 2d at 629; footnote omitted]

In accord with, the foregoing views are the decisions in State v. Hardman, supra, 567 P. 2d at 241 .(officer must first explore and thereafter reasonably discard alternatives to impoundment) ; State v. Boster, supra, 539 P. 2d at 300 (car driven by arrestee was owned by a passenger in a second following car, who could have taken possession); City of Danville v. Dawson, supra, 528 S. W. 2d at 690-691 (“* * * ordinarily it should be just as easy to reach some person at his home as it is to call a wrecker [in order to impound] * * * the practice of impounding vehicles for mere traffic violations is utterly unnecessary and, indeed, is of questionable legality”); People v. Landa, 30 Cal. App. 3d 487, 106 Cal. Rptr. 329, 331-332 (Ct. App. 1973) (arrest on traffic warrant; the car could “have been locked and left unattended. The situation would have been no different had defendant himself voluntarily parked the vehicle, locked and left it”).

The pertinent principle was recently given application by our Appellate Division in State v. McDaniel, supra. A vehicle in which defendant was a passenger was detained by police for an “erratic stop” and in the course of checking credentials the police ascertained that the driver was “wanted on a bench warrant” and arrested him. The driver asked whether the defendant could take the car but the police refused and took the ear to the police station. There the car was searched “for valuables and any contraband.” A quantity of bags of heroin was disclosed in the search. In reversing the denial of a motion to suppress the heroin, the court pointed out, among other things, that the police had an alternative to impoundment, i. e., turning the car over to defendant. 156 N. J. Super, at 356. Moreover, said the court, either of the occupants could have moved the vehicle to a lawful parking area and locked it. Ibid. In these circumstances the decision to “impound” the car was unreasonable because unnecessary. Id. at 356-357. Cf. State v. Roberson, 156 N. J. Super. 551 (App. Div. 1978); State v. Jones, 122 N. J. Super. 585 (Cty. Ct. 1973).

The application of the foregoing principles to the present case does not present any conflict with South Dakota v. Opperman, supra, on its facts. As pointed out by Judge Botter in his dissent below, the owner of the car in Opperman had left his car in a state of multiple continuing violations of a prohibitory parking ordinance and was not present to make other arrangements for the care of his belongings when the police properly became concerned with the vehicle. 145 N. J. Super, at 488. See 428 U. S. at 375, 98 S. Ct. 3092 and Cady v. Dombrowski, 413 U. S. 433, 443, 93 S. Ct. 2563, 37 L. Ed. 2d 706 (1973). When the instant defendant was apprehended) there appears by contrast to have been no reason why defendant could not have been permitted to park his car properly and lock it, just as he would have done if he had had any business in the neighborhood. If there was any appropriate concern by the police for the safety of the car until defendant could obtain his release³ he could have been given the opportunity to summon his wife, the owner of the ear, to take possession of it. Had any of these alternative recourses been taken, the police would have had no basis for reasonable concern for the protection of defendant’s property, for their own potential liability as bailees for lost articles or for their own safety,⁴ assuming, as is not inconsistent with the record, that they ever genuinely entertained any such purposes in their actions under review here.

The point to be made is that constitutional rights to privacy in vehicles and effects must be accorded respect by police as well as courts and cannot be subordinated to mere considerations of convenience to the police short of substantial necessities grounded in the public safety. The burden of establishing such necessity in any given case of claimed right to impound and inventory a car rests on the police. As aptly put in Chimel v. California, 395 U. S. 752, 764 — 765, 89 S. Ct. 2034, 2041, 23 L. Ed. 2d 685 (1969), the “reasonableness” of a search is to be assayed on considerations “relevant to Eourth Amendment interests,” not on “a subjective view regarding the acceptability of certain sorts of police conduct.” Any contrary approach would create a temptation for police to use the unconnected temporary predicament of a motorist as a pretext for an investigatory search unauthorized by a warrant. See Moylan, “The Inventory Search Of An Automobile — A Willing Suspension of Disbelief,” 5 Balt. L. Rev. 203 (1976); Miles and Wefing, “The Automobile Search and the Fourth Amendment: A Troubled Relationship,” 4 Seton Hall L. Rev. 105, 143, 144 (1972); Note, 87 Harv. L. Rev. 835, 848-853 (1974).

We also find ourselves in disagreement with the Appellate Division determination that N. J. S. A. 39:4-136 justified the police action here. This was not a case, as implied by that court, 145 N. J. Super, at 485, of a motor vehicle “which cannot be moved by the operator, or is improperly parked and left unattended upon a roadway.”

Accordingly, we hold, in agreement with Judge Thuring’s ruling at motion level, that the circumstances which the State here argues constituted a justification for a standard impoundment and inventory did not measure up in terms of substantial necessity to the criteria therefor formulated above. For this reason, even were there no other, the search would have to be condemned under the federal and State constitutions and the order of the motion judge sustained.

But there is yet another ground for condemning the search. We conclude there was substantial credible evidence to support the findings of the motion judge that the search in this case was not pursuant to an impoundment but prior to it and that the purported impoundment was pretextual. In effect, the ruling was that the purpose of the police was an investigatory search not based on probable cause rather than a bona fide impoundment for proper safekeeping purposes. If nothing else, the written notation on the police report of the reason for impoundment as “Pen gun found in auto” would amply justify the finding of 'the judge. For this additional reason, consequently, the search was illegal and the evidence subject to suppression. See State v. McDaniel, supra, 156 N. J. Super, at 358, 359; Dixon v. State, supra; Pigford v. United States, supra; Granville v. State, supra; State v. Jewell, supra; United States v. Edwards, supra; and United States v. Hellman, supra.

The conclusions thus arrived at require a reversal of the judgment of the Appellate Division without the necessity of considering the question as to the extent to which a search of an impounded vehicle may be made, assuming the impoundment itself is reasonable and valid. Contrast the views expressed in South Dakota v. Opperman, 428 U. S. at 372, 96 S. Ct. 3092 (glove compartment); In re One 1965 Econoline, etc., 109 Ariz. 433, 511 P. 2d 168 (Sup. Ct. 1973) (satchel); Mozzetli v. Superior Court of Sacramento County, supra (only articles in plain view); State v. Bradshaw, 41 Ohio App. 2d 48, 322 N. E. 2d 311 (Ct. App. 1974) (improper to open trunk); and Williams v. State, 557 P. 2d 135 (Wyo. Sup. Ct. 1976) (trunk properly searched). Problems of some difficulty may be presented in this regard and we regard it as prudent to reserve such questions for disposition on a case-by-case basis as they arise.

The concurring opinion of Justice Schreiber disputes the assumption in this opinion that a warrantless search is prima facie invalid and becomes valid only if it falls within a specific exception to the warrant requirement carved out by the United States Supreme Court. Justice Schreiber would find a warrantless search valid if “reasonable” without the necessity of subsuming the particular situation under one of the “exceptions” (pp. 18-22). We do not regard this appeal as an appropriate vehicle for extended discussion of the validity of the assumption to which Justice Schreiber takes exception. It will suffice to point out that numerous decisions of the United States Supreme Court support our view, e.g., Marshall v. Barlow’s Inc., 436 U. S. 307, 313, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), and see the companion opinion of the Court in State v. Erocolano, 79 N. J. 25, 41 (1978), decided this day, and that this Court has recently already embraced that proposition. State v. Sims, 75 N. J. 337, 351 (1978).

While some consider the so-called inventory search a separate exception to the warrant requirement, it would seem to us to constitute a sub-species of the exception denominated “exigent circumstances.” The necessity for the initial impoundment preceding the search is grounded in the public safety and good order thought to be implicated in the sudden temporary abandonment of a motor' vehicle on the public streets. The development of the doctrine and of its limitations will undoubtedly reflect the views of the courts as to the seriousness of the asserted exigency in the particular case as against the degree of privacy of the car owner invaded by the action of the police.

The judgment of the Appellate Division is reversed and the order suppressing the articles found in the car is reinstated.

1 United States Constitution, Amendment XV.

2 N. J. Const. 1947, Art. I, par. 7. The State and federal provisions are essentially the same in wording. We are free, however, to construe the State provision more broadly in favor of privacy than the federal. State v. Johnson, 68 N. J. 349, 353 (1975).

3 Tlie arrest warrant indicated defendant was bailable on $250 bond, and he was in fact so released a few hours after his arrest.

4 In view of these conclusions we have no present occasion to appraise the validity of any of these commonly advanced reasons for the reasonableness of a, routine impoundment inventory. But see the detailed criticism thereof by the .California Supreme Court ip Mozzetti v. Superior Court of Sacramento County, supra, 484 P. 2d at 88-91.