(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued September 28, 1993 -- Decided June 15, 1994
STEIN, J., writing for the Court.
This appeal concerns the scope of a police officer's authority to conduct a search of articles
contained in the passenger compartment of an automobile following the arrest of the driver for operating the
vehicle while his license is suspended.
On August 19, 1989, a Manalapan Township police officer stopped a 1986 Ford van owned and
operated by Nicholas Grass for speeding. The other passengers of the vehicle were Eileen Pierce and
Eugene Bernardo. On learning that Grass's driver's license had been suspended, the officer ordered Grass
to step out of the van and informed Grass that he was being arrested for driving an automobile while his
license was suspended. The police officer conducted a pat-down search of Grass, handcuffed him, and
placed him in the rear of the patrol car, which was parked behind the van. The officer then ordered Pierce
and Bernardo out of the vehicle, conducted pat-down searches and determined neither was armed. The
officer then searched the interior of the van and found, among other things, a female motorcycle gang jacket.
In the pocket of that jacket, the officer found a cellophane packet containing a trace amount of cocaine.
Pierce was arrested and indicted for several offenses, including possession of cocaine. After the trial
court denied her motion to suppress the evidence seized during the search of the van, Pierce entered a plea
of guilty to the cocaine charge and received a three-year probationary term.
On appeal, a majority of the Appellate Division applied the bright-line rule of the U.S. Supreme
Court case, New York v. Belton, to sustain the search of the van as incidental to the arrest of Grass for
driving with a suspended license. In Belton, the Supreme Court held that when a policeman has made a
lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automobile. Based on the seriousness of Grass's motor-vehicle offense, the majority of the Appellate Division concluded that the officer's arrest of Grass had
constituted an appropriate exercise of the statutory authority to arrest for motor-vehicle violations, thereby
validating the contemporaneous search of the van. One judge dissented, expressing her doubt that New
Jersey courts should read Belton to authorize a vehicle search merely on the basis of a lawful arrest of the
driver for a routine traffic violation. The dissent also found that the arrest of the driver only for driving
while on the revoked list, absent any other suspicious circumstances or a reasonable belief that the driver
would not respond to a summons, was an unlawful arrest in violation of the Fourth Amendment, rendering
the related warrantless search of the vehicle invalid.
Pierce appeals to the Supreme Court as of right based on the dissent below.
HELD: Because of the protections afforded under article 1, paragraph 7 of the New Jersey Constitution,
the U.S. Supreme Court bright-line rule in New York v. Belton, which authorizes as an incident
of the lawful arrest of a driver the contemporaneous search of the vehicle's passenger
compartment, including all containers, shall not apply indiscriminately to searches incidental to
warrantless arrests for motor-vehicle offenses.
1. Belton authorizes as an incident of the lawful arrest of a driver, the contemporaneous search of a passenger compartment, including all containers, of the driver's vehicle. Containers are defined to include
any object capable of holding another object such as glove compartments, consoles, or other receptacles,
including locked goods, boxes, bags and clothing. Although many courts have applied Belton, it has been
widely criticized. Commentators have noted that because Belton is not based on probable cause, there is a
risk that the police will make custodial arrests which they otherwise would not make as a cover for a search
which the Fourth Amendment would otherwise prohibit". Commentators also have noted the inconsistency
between Belton and the "grabbing area," restriction imposed by Chimel v. California. (pp. 14-29)
2. The custodial arrest of Grass for operating a motor vehicle with a suspended driver's license was
valid. Such an offense is serious and poses grave danger to the public. Arresting the driver is consistent
with an officer's duty to make certain that the offender cannot continue to drive. However, with less serious
motor vehicle violations, the arbitrary and unreasonable exercise of the statutory arrest power in respect of
those offenses could infringe on constitutionally-protected rights. Guidelines contained in New Jersey Rules
Governing Criminal Practice, the ABA Standards for Criminal Justice and the Uniform Rules of Criminal
Procedure approved by the National Conference of Commissioners of Uniform State Law advocate issuance
of the summons to those committing minor traffic offenses unless an arrest is necessary to protect public
safety or to assure that the offender will respond to a summons. Accordingly, police officers and law-enforcement officials should not assume that the statutory authorization to arrest for motor-vehicle violations
is unlimited or unreviewable; warrantless arrests for traffic offenses cannot arbitrarily and unreasonably
infringe on constitutionally-protected rights. (pp. 29-32)
3. Article 1, paragraph 7 of the State Constitution affords greater protection against unreasonable
searches and seizures than the U.S. Constitution. As such, the Court will not apply Belton insofar as it
authorizes vehicular searches indiscriminantly based only on contemporaneous arrests for motor-vehicle
violations. The justification for a warrantless vehicular search greatly diminishes when the basis for the
arrest is a routine traffic violation. When the predicate offense is a motor-vehicle violation, the vehicle
stopped by police would not ordinarily contain weapons or evidence at risk of destruction that pertains to the
underlying offense. Moreover, motorists arrested for traffic offenses most times are removed from the
vehicle and secured. Therefore, the officer's justification for searching the vehicle and a passenger's clothing
and containers is minimal. In the context of arrests for motor-vehicle violations, the bright-line Belton
holding extends Chimel v. California too far. Under Chimel, the area that police can search incident to a
lawful arrest is that which is within the immediate control of the arrestee. Belton's automatic application of
Chimel to authorize vehicular searches following all arrests for motor-vehicle offenses is rejected.
(pp. 32-40)
4. Today's holding does not affect the right of a police officer, following a valid custodial arrest for a
motor-vehicle violation or for a criminal offense, to conduct a search of the person of the arrestee solely on
the basis of the lawful arrest. Police officers are authorized under the "automobile exception" to make
warrantless searches of vehicles they have stopped on the highway whenever they have probable cause to
believe that the vehicle contains contraband or evidence of a crime. In addition, if a police officer has a
reasonable belief that a vehicle's driver or occupants pose a threat to his or her safety, a weapons search of
the vehicle is permissible. Further, if a driver or occupant of a vehicle is arrested for a traffic offense and
that arrestee remains in or adjacent to the vehicle, with the result that the vehicle is within the area of the
arrestee's immediate control, a contemporaneous search of the vehicle is sustainable under Chimel, but not
based on Belton's automatic application of Chimel. In this case, because Belton cannot sustain the vehicle
search, the evidence of cocaine found in Eileen Pierce's jacket must be suppressed. (pp. 40-43)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division.
JUSTICE HANDLER, concurring, in which JUSTICE GARIBALDI joins, disagrees with the Court's rejection of Belton. Because Belton applies Chimel to a search of the passenger compartment of an automobile, and because the search in Belton was "a contemporaneous incident of the arrest," unlike the
search in this case, Belton is distinguishable. Justice Handler would accept Belton and apply it narrowly
consistent with the Belton Court's intention to remain faithful to the principles of Chimel. Moreover,
because all custodial arrests pose a threat to the safety of the arresting officer, Justice Handler disagrees with
the Court's suggestion that the rationale for Chimel is less persuasive when offered to justify the need for a
vehicular search following an arrest for a traffic offense. Justice Handler agrees with the result reached by
the Court. In his view, the search was invalid under both Chimel and Belton because it was not a
"contemporaneous" incident of the arrest and because the passenger compartment was no longer within the
"immediate control" of Grass once he had been physically restrained and placed in the patrol car.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, POLLOCK and O'HERN join in
JUSTICE STEIN's opinion. JUSTICE HANDLER filed a separate concurring opinion in which JUSTICE
GARIBALDI joins.
SUPREME COURT OF NEW JERSEY
A-
19 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EILEEN PIERCE,
Defendant-Appellant.
Argued September 28, 1993 -- Decided June 15, 1994
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
257 N.J. Super. 483 (1992).
M. Virginia Barta, Assistant Deputy Public
Defender, argued the cause for appellant
(Zulima V. Farber, Public Defender,
attorney).
Linda A. Rinaldi, Deputy Attorney General,
argued the cause for respondent (Fred DeVesa,
Acting Attorney General of New Jersey,
attorney).
The opinion of the Court was delivered by
STEIN, J.
This appeal concerns the scope of a police officer's
authority to conduct a search of articles contained in the
passenger compartment of an automobile following the arrest of
the driver for operating the vehicle while his license is
suspended. See N.J.S.A. 39:3-40. The State supports the
validity of the search by relying on New York v. Belton,
453 U.S. 454,
101 S. Ct. 2860,
69 L. Ed.2d 768 (1981), which held that
"when a policeman has made a lawful custodial arrest of the
occupant of an automobile, he may, as a contemporaneous incident
of that arrest, search the passenger compartment of that
automobile." Id. at 460, 101 S. Ct. at 2864, 69 L. Ed.
2d at 775
(footnote omitted). Defendant contends that both the custodial
arrest of the driver and the incidental search of the vehicle
constituted violations of rights protected by the Fourth
Amendment of the United States Constitution and article I,
paragraph 7 of the New Jersey Constitution.
Following denial of her motion to suppress evidence,
defendant, Eileen Pierce, pleaded guilty to possession of cocaine
pursuant to a plea agreement, and the court sentenced her to
three years probation. A divided panel of the Appellate Division
affirmed the judgment of conviction. State v. Pierce,
257 N.J. Super. 483 (1992). Defendant appeals to this Court as of
right. R. 2:2-1(a).
The facts are essentially undisputed. On August 19, 1989, Officer Rette of the Manalapan Township Police Department stopped a 1986 Ford van owned and operated by co-defendant Nicholas Grass for speeding, the officer having clocked the vehicle's speed at fifty-one miles per hour in a forty-mile-per-hour zone. The other occupants of the vehicle were defendant, Pierce, and co-defendant Eugene Bernardo. The officer requested and received Grass's Pennsylvania driver's license and vehicle registration. Officer Rette communicated by radio with his headquarters, and
learned that Grass's driver's license had been suspended. The
officer then ordered Grass to step out of the van and informed
Grass that he was arresting him for driving an automobile while
his license was suspended. Officer Rette conduced a pat-down
search of Grass, handcuffed him, and placed him in the rear of
his patrol car, which he had parked directly behind the van.
Officer Rette returned to the van and ordered Pierce and
Bernardo to get out of the vehicle and to produce identification.
Pierce stated that she had no identification; Bernardo produced a
New Jersey driver's license. The officer conducted a pat-down
search of both passengers to determine if they were armed, and
found no weapons. By this time, a state trooper and a police
officer from another municipality had arrived on the scene to
provide back-up.
Officer Rette then entered the van to search its interior
while the back-up officers secured Pierce and Bernardo behind the
van. He first observed a "large hunting-type knife" on the front
console. The officer also saw behind the driver's seat a metal
camera case with two latches, one fastened and the other
unfastened. He opened the case and found a revolver with "four
loaded rounds of .357 magnum ammunition and also two spent
rounds." The officer also found in the van "two breed member
motorcycle gang jackets and a companion jacket that would be the
female of a breed member." Officer Rette testified that the
jacket he identified as "the female's jacket * * * had a patch on
the back stating 'Nick's property.'" The officer stated that he
found in a pocket of that jacket a cellophane packet containing a
trace amount of white powder that laboratory tests later showed
to be cocaine. The officer testified that he had searched the
van within two or three minutes after he had handcuffed Grass and
secured him in the patrol car.
Bernardo and Pierce were arrested and, together with Grass,
were indicted for unlawful possession of a weapon without a
permit, in violation of N.J.S.A. 2C:39-5b; receiving stolen
property (the revolver), contrary to N.J.S.A. 2C:20-7a; and
possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1).
After the trial court denied Pierce's motion to suppress the
evidence secured during the search of the van, Pierce entered a
plea of guilty to the cocaine charge and received a three-year
probationary term. The court dismissed the charges against
Bernardo. Grass pled guilty to possession of a handgun without a
permit, and the court sentenced him to four years imprisonment.
The Appellate Division affirmed the judgment of conviction
following denial of Grass's motion to suppress the fruits of the
search of the van. State v. Grass,
250 N.J. Super. 74 (1991).
On Pierce's appeal from the judgment of conviction entered
after the denial of her suppression motion, the Appellate
Division majority, relying on the decision in Grass, supra,
applied the bright line rule of New York v. Belton to sustain the
search of the van as incidental to the arrest of Grass for
driving with a suspended license. 257 N.J. Super. at 485. The
majority cautioned, however, that the bright-line Belton rule
combined with the statutory authorization to law-enforcement
officers to arrest without a warrant any person violating any
provision of Chapter 3 or 4 of Title 39 of the New Jersey
statutes, "create[s] a potential for abuse." Ibid. The
majority noted that unrestricted application of the statutory
authority to arrest for motor-vehicle violations "would permit a
law enforcement officer to convert any prosaic motor vehicle
violation into an occasion for the full search of the automobile
* * * ." Id. at 485-86. However, based on the seriousness of
Grass's motor-vehicle offense, the Appellate Division majority
concluded that the officer's arrest of Grass had constituted an
appropriate exercise of the statutory authority to arrest for
motor-vehicle violations, thereby validating the contemporaneous
search of the van. Id. at 486.
Dissenting, Judge Pressler expressed doubt that New Jersey
courts should read Belton to authorize a vehicle search merely on
the basis of a lawful arrest of the driver for a routine traffic
violation, noting that this Court had never expressed its
agreement with so broad a reading of Belton. Id. at 487-88. In
addition, Judge Pressler concluded that the arrest of the driver
only for driving while on the revoked list, absent any other
suspicious circumstances or a reasonable belief that the driver
would not respond to a summons, was an unlawful arrest in
violation of the Fourth Amendment, rendering the related
warrantless search of the vehicle unreasonable and invalid. Id.
at 488-93.
New Jersey is one of a number of states that have enacted
statutes unqualifiedly authorizing police officers to arrest
motorists who commit traffic offenses. See Barbara C. Salken,
The General Warrant of the Twentieth Century? A Fourth Amendment
Solution to Unchecked Discretion to Arrest for Traffic Offenses,
62 Temple L. Rev. 221, 250 n.188, 251 n.189 (1989) (listing
twenty-eight state statutes that unconditionally authorize
arrests for traffic offenses and twenty-two state statutes that
impose limitations on police authority to arrest for such
offenses). N.J.S.A. 39:5-25 provides:
Any constable, sheriff's officer, police
officer, peace officer, or the director may,
without a warrant, arrest any person
violating in his presence any provision of
chapter 3 of this Title, or any person, other
than a motorman or person having control of a
street car or auto bus, running upon a route
approved by the Board of Public Utilities,
violating in his presence any provision of
chapter 4 of this Title. The exemption from
arrest of a motorman or person having control
of a street car or auto bus, as conferred
herein, shall not operate to prevent his
arrest, however, for a violation of R.S.
39:4-50. The arresting officer shall bring
any person so arrested before any judge of
the municipal court of the municipality
wherein the offense was committed, or before
the director at any place designated as his
office. If the arrest is for a violation of
R.S. 39:4-50, the arresting officer may, if
no judge, clerk or deputy clerk is available,
detain the person arrested, either in any
police station, lockup or other place
maintained by any municipality for the
detention of offenders or in the common jail
of the county, for such reasonable time as
will permit the arresting officer to obtain a
warrant for the offender's further detention,
which temporary detention shall not exceed 24
hours from the time of the arrest. If the
arrest is for a violation of any other
provision of this subtitle, the person
arrested shall be detained in the police
station or municipal court until the
arresting officer makes a complaint and a
warrant issues.
[Footnotes omitted.]
Although N.J.S.A. 39:5-25 authorizes both issuance of a
summons and arrest for the violations to which it applies, the
statute does not contain provisions that suggest whether arrest
or a summons is appropriate. Read literally, the statute
authorizes police officers to arrest any person who violates, in
the officer's presence, any provision of Chapter 3 or 4 of Title
39, an authorization encompassing a myriad of significant as well
as trivial traffic regulations. For example, an officer could
arrest a motorist whose vehicle was not equipped with adequate
license-plate illumination, in violation of N.J.S.A. 39:3-61, or
who failed to signal for a turn continuously for the last 100
feet before the turn, contrary to N.J.S.A. 39:4-126, or who
parked within fifty feet of a stop sign, a violation of N.J.S.A.
4-138h. Our common experience informs us that arrests for
routine motor-vehicle violations occur only rarely, and that the
standard police practice is to detain the offending driver only
for the interval required for issuance of a summons.
Nevertheless, the issue potentially may be one of
constitutional dimension. As Justice Stewart noted in Gustafson
v. Florida,
414 U.S. 260,
94 S. Ct. 488,
38 L. Ed.2d 456
(1973), which involved the validity of a search of the driver's
person following an arrest for driving without an operator's
license,
[i]t seems to me that a persuasive claim
might have been made in this case that the
custodial arrest of the petitioner for a
minor traffic offense violated his rights
under the Fourth and Fourteenth Amendments.
But no such claim has been made. Instead,
the petitioner has fully conceded the
constitutional validity of his custodial
arrest.
[Id. at 266-67, 91 S. Ct. at 492, 38 L. Ed.
2d at 462 (Stewart, J., concurring).]
Similarly, in United States v. Guzman, 864 F.2d 1512 (1988), in respect of a driver stopped and detained for failing to wear a seat belt, the Tenth Circuit noted that "'[t]here can be no question that the stopping of a vehicle and the detention of its occupants constitute a "seizure" within the meaning of the Fourth Amendment.'" Id. at 1519 (alteration in original) (quoting Colorado v. Bannister, 449 U.S. 1, 4 n.3, 101 S. Ct. 42, 43 n.3, 66 L. Ed.2d 1, 4 n.3 (1980)). We acknowledge that the Legislature's unqualified authorization of police officers to arrest for any traffic offense constitutes an assertion of the State's police power to promote public safety and the general welfare. See State, Dep't of Envtl. Protection v. Ventron Corp., 94 N.J. 473, 499 (1983). Nevertheless, that exercise of the
police power could be invalid if it were applied in a manner
"repugnant to the fundamental constitutional rights guaranteed to
all citizens." Gundaker Cent. Motors v. Gassert,
23 N.J. 71, 79
(1956), appeal dismissed,
354 U.S. 933,
77 S. Ct. 1397,
1 L. Ed.2d 1533 (1957).
Although N.J.S.A. 39:5-25 imposes no limitations on an
officer's power to arrest for traffic offenses, other sources of
law suggest standards that should inform police officers in the
exercise of their statutory authority. For example, Rule 3:3-1
of the Rules Governing Criminal Practice sets forth guidelines to
assist a court authorized to issue either a summons or an arrest
warrant based on a complaint alleging commission of an offense.
Absent a complaint alleging commission of one of the offenses
designated by the Code of Criminal Justice ("Code"), the Rule
prescribes that a court should issue a summons rather than an
arrest warrant unless one of the following conditions exist:
(2) The accused has previously failed
to respond to a summons;
(3) The judge or clerk has reason to
believe that the accused is
dangerous to himself, to others or
to property;
(4) There are one or more outstanding
arrest warrants for the accused;
(5) The whereabouts of the accused are
unknown and an arrest warrant is
necessary to subject him to the
jurisdiction of the court; or
(6) The judge or clerk has reason to
believe that the accused will not
appear in response to a summons.
[R. 3:3-1(b).]
Substantially similar standards are contained in Rule 3:4-1 to
guide officers who have made warrantless arrests in determining
whether to apply to the court for a summons or an arrest warrant
in respect of the arrested person. The 1980 Report of the
Supreme Court's Committee on Criminal Practice explained that the
proposed revisions of Rules 3:3-1 and 3:4-1 establish "a
presumption regarding when a summons should issue, subject to
rather broad exceptions where there is a need for further
investigation, detention or avoidance of public danger." Report,
Supreme Court's Committee on Criminal Practice,
105 N.J.L.J. 425,
426 (1980).
Similarly, the American Bar Association, in its Standards
for Criminal Justice, advocates that police officers authorized
to arrest for misdemeanors issue a summons unless an arrest is
necessary to prevent bodily harm to the accused or another or if
the accused's conduct or prior record demonstrates a likelihood
that the accused will fail to respond to a summons. 2 Standards
for Criminal Justice standard 10-2.2 (2d ed. Supp. 1986)
(hereinafter ABA Standards). The commentary to standard 10-2.2
observes: "[T]he decision concerning the necessity for arrest
should not be left to the untrammeled discretion of the arresting
officer. A standard that permits officers to arrest or not
according to their personal assessment of a defendant is bound to
lead to unequal enforcement of the laws." Id. at standard 10.26.
Likewise, the 1987 revision of the Uniform Rules of Criminal
Procedure, approved by the National Conference of Commissioners
on Uniform State Laws, adopts essentially the same restrictive
standards for non-felony arrests as are set forth in the ABA
Standards. Unif. R. Crim. P. 211(b); see also Model Code of Pre-Arraignment Procedure § 120.2(4) (1975) (advocating police
regulations encouraging use of citations rather than arrest
except when necessary in public interest); Unif. Vehicle Code and
Model Traffic Ordinance § 16-202 (1992) (permitting arrest only
for serious traffic offenses including vehicular homicide,
reckless driving, eluding officer, driving under influence of
drugs or alcohol, or failing to stop or give information after
accident).
Although the issue appears to be one of first impression in
New Jersey, courts in other jurisdictions have acknowledged that
detention or arrest may be improper in respect of offenses that
pose little threat to public safety. See, e.g., United States v.
Mota,
982 F.2d 1384, 1388-89 (9th Cir. 1993) (holding arrest of
defendants for selling hot corn-on-the-cob from shopping cart
without required license violative of both California law and
Fourth Amendment and therefore suppressing evidence obtained from
search conducted on basis of unlawful arrests); Guzman, supra,
864 F.
2d at 1519-21 (holding that officer's stop, detention, and
extensive questioning of defendant and wife based only on
defendant's unlawful failure to wear seat belt while driving
constituted unreasonable seizure, and remanding to trial court to
determine voluntariness of defendant's consent to search);
Barnett v. United States,
525 A.2d 197, 199 (D.C. 1987) (holding
arrest of defendant for violating traffic regulation prohibiting
"walking as to create a hazard" invalid under District of
Columbia Code and holding contemporaneous search of defendant
that revealed narcotics violative of defendant's Fourth Amendment
rights); Thomas v. State,
614 So.2d 468, 470-71 (Fla. 1993)
(holding that custodial arrest of defendant for violating
municipal ordinance prohibiting operation of bicycle without bell
or gong unreasonable and violative of defendant's rights under
Fourth Amendment and Florida Constitution); State v. Martin,
253 N.W.2d 404, 406 (Minn. 1977) (holding invalid under Minnesota
Rules of Criminal Procedure arrest of defendant for petty
misdemeanor offense of possession of small quantity of marijuana
and invalidating contemporaneous search of defendant as violative
of Fourth Amendment); State v. Hehman,
578 P.2d 527, 529 (Wash.
1978) (invalidating arrest of defendant for driving with
defective taillight and expired driver's license, holding
custodial arrests for minor traffic violations contrary to
state's public policy, and suppressing evidence of illegal drug
possession obtained in course of contemporaneous search).
Moreover, a number of commentators have expressed concern
about unchecked police authority to effect custodial arrests for
minor offenses. Professor LaFave, noting the potential for abuse
of that authority, suggests that constitutional limits are
necessary:
It may be that on a future occasion the
Court will conclude that there are some
constitutional limits upon the use of
"custodial arrests" as the means for invoking
the criminal process when relatively minor
offenses are involved. Such a holding would
be most desirable, as it would address
specifically a current problem of
considerable seriousness: the arbitrariness
and inequality which attends unprincipled
utilization of the "custodial arrest" and
citation alternatives. Moreover, it would
substantially diminish the opportunities for
pretext arrests * * * .
[2 Wayne R. LaFave, Search and Seizure, § 5.2(g),
at 465 (2d ed. 1987)(citations omitted).]
Similarly, in an article addressing United States v. Robinson,
414 U.S. 218,
94 S. Ct. 467,
28 L. Ed.2d 427 (1973) (holding
that after arrest of defendant for driving while on revoked list,
search of the arrestee's person is reasonable under Fourth
Amendment), Professor LaFave focused on the legality of the
arrest:
[I]t may well be that the overriding question
presented by Robinson is not what degree of
search may be conducted incident to arrest,
but rather when an arrest itself is warranted
so as to call for a full protective search.
That is, if a full search for self-protection
is necessary only in the event of arrest,
then is not such a search unnecessary if the
antecedent arrest was unnecessary? * * *
* * *[T]he question is certainly overdue
for consideration, for it cannot be denied
that the "police decision to arrest an
individual and initiate the process of
criminal prosecution is in itself a
significant invasion of person liberty."
[Wayne LaFave, "Case-By-Case Adjudication"
Versus "Standardized Procedures": The
Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 158
(hereinafter LaFave, Case-By-Case
Adjudication) (quoting Edward L. Barrett,
Personal Rights, Property Rights, and the
Fourth Amendment, 1
960 Sup. Ct. Rev. 46).]
See also Thomas R. Folk, The Case for Constitutional Constraints
Upon the Power to Make Full Custody Arrests,
48 Cinn. L. Rev./u>.
321, 343 (1979)(suggesting that custodial arrests for minor
offenses violate Fourth Amendment unless necessary to ensure
presence of arrestee at trial or to prevent injury to arrestee or
others); Arthur Mendelson, Arrest for Minor Traffic Offenses,
19 Crim. L. Bull. 501, 510-11 (1983) (criticizing as violative of
Fourth Amendment state statutes that authorize custodial arrest
for minor traffic offenses, and urging amendatory legislation to
restrict police power to arrest); Barbara C. Salken, The General
Warrant of the Twentieth Century? A Fourth Amendment Solution to
Unchecked Discretion to Arrest for Traffic Offenses,
62 Temp. L.
Rev. 221, 273-5 (1989) (concluding that exercise of power to
conduct vehicular search based only on arrest for minor traffic
offense violates Fourth Amendment, and urging that police
authority to arrest for traffic offenses be restricted only to
circumstances in which governmental interests require custodial
arrest rather than issuance of summons); James B. White, The
Fourth Amendment as a Way of Talking About People: A Study of
Robinson and Matlock, 1
974 Sup. Ct. Rev. 165, 208 (urging
consideration of constitutionality of custodial arrests for minor
offenses).
As noted supra at ___ (slip op. at 4-5), the Appellate
Division upheld the search of the contents of Pierce's jacket
pocket on the basis of the bright-line rule of New York v.
Belton, supra,
453 U.S. 454,
101 S. Ct. 2860,
69 L. Ed.2d 768,
which authorizes as an incident of the lawful arrest of a driver
the contemporaneous search of the passenger compartment,
including all containers, of the driver's vehicle. Approximately
three-and-one-half months after the Supreme Court decided Belton
this Court acknowledged that that holding appeared to be
inconsistent with our decision in State v. Welsh,
84 N.J. 346
(1980), in which "we reaffirmed that the proper scope of a search
incident to an arrest is limited to the person of the arrestee
and the area from within which he might gain possession of a
weapon or destructible evidence." State v. Alston,
88 N.J. 211,
235 n.15 (1981) (citing Chimel v. California,
395 U.S. 752,
89 S. Ct. 2034,
23 L. Ed.2d 685 (1969)). Because the vehicle's
occupant in Welsh had been placed under custodial arrest, seated
in a police car, and hence unable to reach into his own vehicle
to gain possession of a weapon or destructible evidence, we noted
in Alston that the search in Welsh could not have been sustained
as one incidental to a lawful arrest under the Chimel standard.
We observed, however, that the result in Welsh "would not be the
same" were we to apply the Court's holding in Belton. Because we
upheld the search in Alston on different grounds, we expressly
deferred consideration of Belton's effect on this Court's search
and-seizure jurisprudence. Ibid.
A brief background perspective will explain the evolution of
the Supreme Court's holding in Belton. Commencing with dictum in
Weeks v. United States, 232 U.S. 383, 392, 34 S. Ct. 341, 344, 58 L. Ed. 652, 655 (1914) (acknowledging right of law-enforcement officials "to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime"), over the course of several decades the Supreme Court successively expanded and contracted the scope of police authority to conduct warrantless searches incidental to arrests. See Carroll v. United States, 267 U.S. 132, 158, 45 S. Ct. 280, 287, 69 L. Ed. 543, 553 (1925) (approving search after arrest for "whatever is found upon his person or in his control"); Agnello v. United States, 269 U.S. 20, 30, 46 S. Ct. 4, 5, 70 L. Ed. 145, 148 (1925) (approving search after arrest of the person and "the place where the arrest is made"); Marron v. United States, 275 U.S. 192, 199, 48 S. Ct. 74, 77, 72 L. Ed. 231, 238 (1927) (approving, after arrest for offense occurring on premises, power to search extending "to all parts of the premises used for the unlawful purpose"); Go-Bart Importing Co. v. United States, 282 U.S. 344, 358, 51 S. Ct. 153, 158, 75 L. Ed. 374, 383 (1931) (disapproving search of office in which defendants were arrested); Harris v. United States, 331 U.S. 145, 154-55, 67 S. Ct. 1098, 1103, 91 L. Ed. 1399, 1408-09 (1947) (approving thorough search of four-room apartment incidental to defendant's arrest therein for prior offense); Trupiano v. United States, 334 U.S. 699, 709, 68 S. Ct. 1229, 1234, 92 L. Ed. 1663, 1671, (1948) (disapproving seizure of items in plain view after entry to make arrest because of failure to secure and use search warrants);
United States v. Rabinowitz,
339 U.S. 56, 63-66,
70 S. Ct. 430,
434-35,
94 L. Ed. 653, 658-60 (1950) (relying on Harris, supra,
overruling Trupiano, supra, and upholding as reasonable thorough
search of one-room office where arrest is made). Under the
Harris-Rabinowitz rule as thereafter applied, warrantless
searches incidental to arrests were not limited to the area into
which a defendant might reach to destroy evidence or secure a
weapon, but extended to the entire area in which defendant
exercised a possessory interest. See Chimel, supra, 395 U.S. at
760, 89 S. Ct. at 2038, 23 L. Ed.
2d at 692; 2 LaFave, Search and
Seizure, supra, § 6.3(b) at 623-24.
In 1969 the Supreme Court decided Chimel, overruled the
Harris-Rabinowitz rule and restricted the constitutionally
permissible scope of a search incident to an arrest. Chimel
involved the arrest at his home of a coin-shop burglary suspect
by three police officers with an arrest warrant but no search
warrant. Over the defendant's objections, the officers conducted
a search of the entire three-bedroom house, including the attic,
garage, and a small workshop. The police searched dresser
drawers in the master bedroom and seized various items, including
coins, that the trial court admitted in evidence against
defendant during the burglary trial. The search continued for
almost one hour. 395 U.S. at 753-54, 89 S. Ct. at 2030, 23
L. Ed.
2d at 688. The California Supreme Court upheld the search
as incidental to a valid arrest. People v. Chimel,
439 P.2d 333,
337 (1968). The Supreme Court reversed, holding the search
invalid and overruling both Harris, supra, and Rabinowitz, supra:
When an arrest is made, it is reasonable for
the arresting officer to search the person
arrested in order to remove any weapons that
the latter might seek to use in order to
resist arrest or effect his escape.
Otherwise, the officer's safety might well be
endangered, and the arrest itself frustrated.
In addition, it is entirely reasonable for
the arresting officer to search for and seize
any evidence on the arrestee's person in
order to prevent its concealment or
destruction. And the area into which an
arrestee might reach in order to grab a
weapon or evidentiary items must, of course,
be governed by a like rule. A gun on a table
or in a drawer in front of one who is
arrested can be as dangerous to the arresting
officer as one concealed in the clothing of
the person arrested. There is ample
justification, therefore, for a search of the
arrestee's person and the area "within his
immediate control" -- construing that phrase
to mean the area from within which he might
gain possession of a weapon or destructible
evidence.
There is no comparable justification,
however, for routinely searching any room
other than that in which an arrest occurs--or, for that matter, for searching through
all the desk drawers or other closed or
concealed areas in that room itself. Such
searches, in the absence of well-recognized
exceptions, may be made only under the
authority of a search warrant. The
"adherence to judicial processes" mandated by
the Fourth Amendment requires no less.
[Chimel, supra, 395 U.S. at 762-63,
89 S. Ct. 2040, 23 L. Ed.
2d at 694 (footnote omitted).]
In 1981 the Court applied Chimel's holding to an automobile search incidental to the arrest of the occupants. Belton, supra, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed.2d 768. A New York State trooper stopped a vehicle for speeding, and while examining
the driver's license and registration smelled the odor of burned
marijuana. The trooper also observed an envelope marked
"Supergold" on the floor of the car and suspected that it
contained marijuana. The trooper ordered the four occupants to
step out of the car, and placed them under arrest for possession
of marijuana. He patted down each of them, and directed them to
stand in separate areas. Finding marijuana in the envelope, the
trooper then searched each of the occupants and also searched the
passenger compartment of the vehicle. A black leather jacket on
the back seat belonged to Belton. When the trooper unzipped one
of the pockets, he found cocaine. Id. at 455-56, 101 S. Ct. at
2861-62, 69 L. Ed.
2d at 772.
After Belton was indicted for possession of a controlled
dangerous substance, he moved to suppress the cocaine. Although
the lower courts upheld the validity of the search, the New York
Court of Appeals reversed, concluding that "[a] warrantless
search of the zippered pockets of an unaccessible jacket may not
be upheld as a search incident to a lawful arrest where there is
no longer any danger that the arrestee or a confederate might
gain access to the article." People v. Belton,
407 N.E.2d 420,
421 (1980).
Acknowledging that both state and federal courts had
experienced difficulty in determining the proper scope of a
vehicular search incident to a lawful arrest, Belton, supra, 453
U.S. at 459 n.1, 101 S. Ct. at 2863 n.1, 69 L. Ed.
2d at 774 n.1,
the Supreme Court endorsed the view that Fourth Amendment
protections "'can only be realized if the police are acting under
a set of rules which, in most instances, makes it possible to
reach a correct determination beforehand as to whether an
invasion of privacy is justified in the interest of law
enforcement.'" Id. at 458, 101 S. Ct. at 2863, 69 L. Ed.
2d at
773 (quoting LaFave, Case-By-Case Adjudication, supra, 1
974 Sup.
Ct. Rev. at 142). The Court, stressing its adherence to "the
fundamental principles established in the Chimel case," id. at
460 n.3, 101 S. Ct. at 2864 n.3, 69 L. Ed.
2d at 775 n.3, adopted
"the generalization that articles inside the relatively narrow
compass of the passenger compartment of an automobile are in fact
generally, even if not inevitably, within 'the area into which an
arrestee might reach in order to grab a weapon or evidentiary
ite[m].'" Id. at 460, 101 S. Ct. at 2864, 69 L. Ed.
2d at 775
(quoting Chimel, supra, 395 U.S. at 763,
89 S. Ct. 2040, 23
L. Ed.
2d at 694). Accordingly, the Court upheld the validity of
the Belton search, holding
that when a policeman has made a lawful
custodial arrest of the occupant of an
automobile, he may, as a contemporaneous
incident of that arrest, search the passenger
compartment of that automobile [and]
* * * may also examine the contents of
any containers found within the passenger
compartment, for if the passenger compartment
is within reach of the arrestee, so also will
containers in it be within his reach.
[Id. at 460, 101 S. Ct. at 2864, 69
L. Ed.
2d at 775 (footnotes omitted).]
The Court defined "container" as "any object capable of holding another object," and as including "closed or open glove
compartments, consoles, or other receptacles located anywhere
within the passenger compartment, as well as luggage, boxes,
bags, clothing, and the like." Id. at 460 n.4, 101 S. Ct. at
2864 n.4, 69 L. Ed.
2d at 775 n.4. The Court's holding
encompassed only the interior of an automobile's passenger
compartment, not the trunk. Ibid.
In applying the Belton rule, federal courts have generally
sustained vehicular searches even if the arrestee has been
removed from the vehicle and handcuffed. See, e.g., United
States v. White,
871 F.2d 41, 44-45 (6th Cir.), cert. denied,
489 U.S. 1021,
109 S. Ct. 1142,
103 L. Ed.2d 202 (1989); United
States v. Karlin,
852 F.2d 968, 970-72 (7th Cir. 1988); United
States v. Cotton,
751 F.2d 1146, 1148 (10th Cir. 1985); United
States v. Collins,
668 F.2d 819, 821 (5th Cir. 1982); cf. United
States v. Vasey,
834 F.2d 782, 787 (9th Cir. 1987) (holding
search invalid as not contemporaneous with arrest of defendant
who was handcuffed and secured in police car thirty to forty-five
minutes prior to search.)
The Court's holding in Belton has been widely criticized.
Professor LaFave, whose endorsement of bright-line rules to guide
police officers in resolving Fourth Amendment issues the Belton
majority quoted approvingly, id. at 458, 101 S. Ct. at 2860, 69
L. Ed.
2d at 773-74, concludes that Belton "does a disservice to
the development of sound Fourth Amendment doctrine." Wayne R.
LaFave, The Fourth Amendment in an Imperfect World: On Drawing
"Bright Lines" and "Good Faith" 43 U. of Pitt. L. Rev. 307, 325
(1982). He observes that because the automobile search
authorized by Belton is not based on probable cause, the decision
creates the risk that "police will make custodial arrests which
they otherwise would not make as a cover for a search which the
Fourth Amendment otherwise prohibits." 3 LaFave, supra, Search
and Seizure § 7.1(c), at 21. Other commentators have noted the
inconsistency between the Belton rule and the "grabbing area"
restriction imposed by Chimel, supra:
If any bright line rule had been
necessary to resolve the issue in Belton, it
would have been the opposite of the rule that
the Court announced. * * * [O]ccupants almost
invariably are removed before an automobile
is searched; and once they have been removed,
there is no longer much chance that they can
secure weapons from the automobile or destroy
evidence there.
the Fourth Amendment, 45 U. of Pitt. L.Rev.
227, 274 (1984).]
See also Jeffrey A. Carter, Fourth Amendment -- Of Cars, Containers and Confusion, 72 J. Crim. L. & Criminology 1171, 1173, 1217-21 (1981) (characterizing Belton as "disappointing," efficacy of its bright-line rule "questionable," and its legacy "confusion"); Catherine Hancock, State Court Activism and Searches Incident to Arrest, 68 Va. L. Rev. 1085, 1130-31 (1982) (observing that "[by] the elimination of Chimel's case-by-case measure of grabbing areas * * * Belton dramatically lowered the level of Fourth Amendment protection afforded to motorists in almost every state"); Yale Kamisar, The "Automobile Search" Cases: The Court Does Little to Clarify the "Labyrinth" of Judicial Uncertainty, in 3 The Supreme Court: Trends and
Developments 1980-81 96 (Jesse Chaper et al. eds., 1982) (arguing that "automobile exception" recognized in Carroll, supra, 267 U.S. at 147, 45 S. Ct. at 283, 69 L. Ed. at 548-49, and based on probable cause constituted preferable basis for authorizing warrantless search in Belton); John Parker, Robbins and Belton - Inconsistency and Confusion Continue to Reign Supreme in the Area of Warrantless Vehicle Searches, 19 Hous. L. Rev. 527, 552 (1982) (arguing that "[r]easonableness and exigency have given way to predictability in Belton"); David S. Rudstein, The Search of an Automobile Incident to an Arrest: An Analysis of New York v. Belton, 67 Marq. L. Rev. 205, 232, 261 (1984) (reading Belton to allow car search even if arrestee handcuffed and placed in squad car and urging reconsideration of Belton and return to rationale of Chimel, allowing search of vehicle and containers therein only if within potential control of arrestee); David M. Silk, When Bright Lines Break Down: Limiting New York v. Belton, 136 U. Pa. L. Rev. 281, 313 (1987) (hereinafter Silk) (urging that Belton be read and applied narrowly and not expanded beyond intended scope); Robert Stern, Robbins v. California and New York v. Belton: The Supreme Court Opens Car Doors to Container Searches, 31 Am. U. L. Rev. 291, 317 (1982) (describing Belton as subordinating privacy interests to bright-line rule and allowing warrantless searches of containers in automobile passenger compartments incident to arrest of driver or occupants); The Supreme Court, 1980 Term, 95 Harv. L. Rev. 93, 260 (1981) (noting that "the Court has turned its back on the logic of its earlier
decision in Chimel * * *, which restricted police searches
incident to arrest to the arrestee's immediate area of control").
Most of the state courts that have addressed the issue
apply the Belton rule, see Silk, supra,
136 U. Pa. L. Rev. at 292
n.81, although several state courts have declined to follow
Belton. See, e.g., State v. Hernandez,
410 So.2d 1381, 1385
(La. 1982) (distinguishing Belton, but observing that "we do not
consider [Belton] to be a correct rule of police conduct under
our state constitution"); Commonwealth v. Toole,
448 N.E.2d 1264,
1266-68 (Mass. 1983) (excluding evidence obtained by warrantless
search of truck following lawful arrest, removal, and handcuffing
of driver and acknowledging validity of search under Belton but
invalidating search based on Massachusetts statute limiting
police authority to search incident to arrest only to evidence of
crime for which arrest is effected or to seize weapons arrestee
might use to resist arrest); People v. Blasich,
541 N.E.2d 40,
44-45 (N.Y. 1989) (upholding search but observing that New York
rejects Belton bright-line rule and interprets state constitution
to limit warrantless searches of automobiles incident to arrests
only to area from which arrestee might actually gain possession
of weapon or destructible evidence); State v. Gilberts,
497 N.W.2d 93, 97 (N.D. 1993) (holding invalid warrantless search of
jacket "draped down around [passenger's] back," that passenger
was "kind of sitting on," following arrest of driver for driving
while on suspended list, and finding Belton inapplicable to
search of jacket obviously belonging to passenger not implicated
in offense for which driver was arrested); State v. Brown,
588 N.E.2d 113, 114-15 (Ohio) (invalidating warrantless search of
automobile's glove compartment following arrest of defendant for
driving while intoxicated and removal into patrol car; declining
to follow Belton and holding that under Ohio constitution arrest
for traffic offense does not automatically authorize detailed
search of arrestee's automobile) cert. denied sub nom. Ohio v.
Brown, ___ U.S. ___,
113 S. Ct. 182,
121 L. Ed.2d 127 (1992);
State v. Kirsch,
686 P.2d 446, 448-9 (Or. Ct. App. 1984)
(upholding reasonableness of car search incident to valid arrest;
observing that "Belton is not the law of Oregon" and that Oregon
Constitution authorizes car search incident to arrest only if
necessary to protect officer or to preserve evidence, or if
relevant to crime for which arrest is made and reasonable in
light of facts); State v. Stroud,
720 P.2d 436, 440-41 (Wash.
1986) (upholding warrantless search of unlocked glove compartment
incidental to arrest for theft; modifying Belton, and holding
that Washington Constitution authorizes warrantless searches of
automobile passenger compartment incidental to valid arrest but
excluding locked containers and locked glove compartment).
This Court has not previously had occasion to consider and
apply Belton, although we have frequently referred to the Fourth
Amendment exception that it established. See, e.g., State v.
Colvin,
123 N.J. 428, 435 (1991) (noting that "the Belton
exception for a search incident to an arrest is conceptually
distinct from the exception for automobile searches. In the
former, there need be no probable cause to believe that the
vehicle contains contraband."); State v. Lund,
119 N.J. 35, 38
(1990) (distinguishing search during routine traffic stop from
Belton search incident to lawful arrest); State v. Esteves,
93 N.J. 498, 503 (1983) (distinguishing Belton); Alston, supra, 88
N.J. at 235 n.15) (declining to consider effect of Belton on
Welsh, supra,
84 N.J. 346.)
In State v. Kearney,
183 N.J. Super. 13 (1981), certif.
denied,
89 N.J. 449 (1982), the Appellate Division applied the
"philosophy" of Belton to sustain a search of defendant's jacket
inside an automobile following defendant's arrest for possession
of drugs. The Appellate Division noted that Belton had defined
"container" to include "luggage, boxes, bags, clothing and the
like." Id. at 20. Observing that "[t]he impact of Belton in
this State is uncertain," the court sustained the search of
defendant's jacket and acknowledged that "[w]e follow Belton in
this case, to the extent that its philosophy may be applicable
* * *." Ibid. In State v. Barksdale,
224 N.J. Super. 404, 415-16 (App. Div. 1988), police officers arrested the operator of a
vehicle for driving while on the suspended list, handcuffed him,
and placed him in the patrol car; because the car stalled, the
officers ordered the occupants to push the car into a nearby
parking lot. Ten or fifteen minutes after the arrest, police
officers searched the passenger compartment and discovered drugs.
Affirming the trial court's suppression of the evidence, the
Appellate Division, based on the delay between the arrest and the
search, concluded that the search was not "a contemporaneous
incident of that arrest" within the contemplation of Belton. Id.
at 415. The Appellate Division also observed that the police had
"no reasonable belief that any occupant of the vehicle was armed
and dangerous." Ibid. Noting that the driver had been
handcuffed and placed in the back seat of the patrol car, the
court also concluded "that the search was not properly limited to
the area within [the driver's] immediate control." Id. at 416.
No case has heretofore required us to consider the Belton
holding in the context of our State Constitution because most
warrantless automobile searches conducted by police officers are
sustainable on other grounds. Our courts have relied primarily
on the automobile exception first established in Carroll, supra,
267 U.S. 132,
45 S. Ct. 280,
69 L. Ed. 543, which "holds a search
warrant unnecessary when the police stop an automobile on the
highway and have probable cause to believe that it contains
contraband or evidence of a crime." Alston, supra, 88 N.J. at
230-31; see Colvin, supra, 123 N.J. at 437; Esteves, supra, 93
N.J. at 505-07; cf. State v. Patino,
83 N.J. 1, 9-15 (1980)
(holding that police officers lacked probable cause sufficient to
sustain search of automobile trunk under "automobile exception").
An obvious explanation for reliance by law-enforcement officials
on the "automobile exception" is that the very same facts that
constitute probable cause to arrest a vehicle's occupant often
will afford police officers probable cause to believe that the
vehicle contains evidence of crime or contraband. In that event,
"a warrantless search of the vehicle is authorized, not as a
search incident to arrest, but rather as a search falling within
the automobile exception to the warrant requirement." Blasich,
supra, 541 N.E.
2d at 43.
In addition, we have applied the holding of Michigan v.
Long,
463 U.S. 1032,
103 S. Ct. 3469,
77 L. Ed.2d 1201 (1983),
in which the Supreme Court sustained the validity of a weapons
search in the passenger compartment of an automobile when the
police officers had a reasonable belief that the driver posed a
threat to their safety. The Court observed that a weapons search
was "permissible if the police officer possesses a reasonable
belief based on 'specific and articulable facts which, taken
together with the rational inferences from those facts,
reasonably warrant' the officer in believing that the suspect is
dangerous and the suspect may gain immediate control of weapons."
Id. at 1049, 103 S. Ct. at 3481, 77 L. Ed.
2d at 1220 (quoting
Terry v. Ohio,
392 U.S. 1, 21,
88 S. Ct. 1868, 1880,
20 L. Ed.2d 889, 906 (1968)). In Lund, supra, we concluded that "the
Michigan v. Long rule is sound and compelling precedent and
should be followed to protect New Jersey's police community."
119 N.J. at 48.
Hence, irrespective of the Belton rule, warrantless vehicle
searches in New Jersey are sustainable either under the so-called
"automobile exception" on the basis of probable cause, or in
connection with a search for weapons based on an objectively
reasonable belief that an occupant of the vehicle is dangerous
and may gain access to weapons. We must now determine whether
our State Constitution will permit application of the Belton rule
to sustain a warrantless vehicular search solely on the basis of
an arrest for a motor-vehicle offense.
We first sustain the validity of the custodial arrest of co-defendant Grass for operating a motor vehicle during the period in which his driver's license had been suspended. See N.J.S.A. 39:3-40.
We concur with the observation of the Appellate Division majority that "[o]peration of a motor vehicle by a person whose license is suspended is one of the more serious Title 39 offenses," 257 N.J. Super. at 486, and one that poses grave danger to the public. See Pat R. Gibert, Suspended Drivers Imperil N. J. Highways, The Record, May 15, 1994, at A-1 (detailing significant increases in number of motorists apprehended by police for driving with suspended licenses). We note that our statutes authorize suspension of a driver's license only for serious offenses, or an accumulation of offenses, that directly implicate the public safety. See, e.g., N.J.S.A. 39:4-49.1 (requiring two-year suspension for operation of motor vehicle while knowingly possessing controlled dangerous substances); N.J.S.A. 39:4-50 (imposing mandatory license
suspensions for driving-while-intoxicated convictions; six months
to one year for first offense, two years for second offense, and
ten years for third offense); N.J.S.A. 39:4-56.1 to -56.2
(imposing mandatory license suspension of one to five years for
willful abandonment of vehicle on public highway for purpose of
obstructing passage of other vehicles); N.J.S.A. 39:5-30
(authorizing Director of Division of Motor Vehicles to impose
preliminary and final suspension or revocation of driver's
license for violations of specified statutes (N.J.S.A. 39:4-50, -96 to -98, -129) that have resulted in death or serious bodily
injury of another); N.J.A.C. 13:19-10.2 (requiring Director of
Division of Motor Vehicles to impose license suspensions of
thirty days to not fewer than 180 days on drivers who accumulate
prescribed number of points for motor-vehicle offenses within the
periods designated).
The penalties that the Legislature has imposed for
violations of N.J.S.A. 39:3-40, driving while on revoked list,
reflect the seriousness of the offense. A first offender shall
be fined $500, a second offender fined $750 and imprisoned for up
to five days, and a third offender fined $1,000 and imprisoned
for ten days. N.J.S.A. 39:3-40a to -40c. In addition, an
offender's period of license suspension shall be extended up to
six months. N.J.S.A. 39:3-40d. An offender involved in an
accident that causes injury to another person in the course of
violating N.J.S.A. 39:3-40 shall be imprisoned for not less than
forty-five days. N.J.S.A. 39:3-40e.
Our cases have also recognized that violators of N.J.S.A. 39:3-4