The opinion of the court was delivered by: DAVIS
Presently before this Court are defendants' motions to suppress evidence in the above captioned action. Defendants are charged with the commission of an armed robbery upon the Davisville, Pennsylvania branch of the Federally insured Girard Bank. Two hours after the robbery was committed, they were arrested in Moorestown, New Jersey. The evidence sought to be suppressed was seized in two searches, one of the defendants' persons following their arrest, the other of the automobile in which they had allegedly been travelling. The search of defendants produced a series of dollar bills discovered to have been taken from the bank; the search of the automobile produced a sawed-off shot gun, cloth hoods, and gloves. A hearing having been held and briefs having been filed on these motions, they are ready for determination.
Officer Robertson, the officer who subsequently arrested the defendants, later arrived on the scene, keeping watch over the blue Chevrolet, which by that time had been parked and left vacant. Soon the defendants left the Mall building complex and approached the blue Chevrolet but turned and retraced their steps when they were approximately fifty yards short of it. Robertson stopped the defendants but after speaking with them did not detain them. His next move was to go to the auto center and confer with the two witnesses concerning the description of the men they had seen in the blue Chevrolet. This conversation led him to search for the two men with whom he had spoken earlier, and upon finding them asked them to accompany him. No formal arrest was made, however, until Schwab had been driven by the place where Robertson and the defendants were standing and Schwab had signalled his recognition of one of the men as having been in the blue Chevrolet. His signal was interpreted by the police as indicating recognition of both men. They were then placed under arrest.
Both men were immediately removed to the Moorestown Police Station where they were routinely searched and their belongings examined. Upon each defendant was found approximately $400.00 in new currency which had sequential serial numbers. These numbers were duly recorded.
Meanwhile, Officer Robertson along with Detective Fullerton returned to the blue Chevrolet in the Parking lot. This car, it was noted first, carried a Pennsylvania license plate but a New Jersey sticker. Robertson then glanced down and noticed the barrel of a sawed off shot gun sticking out from underneath the right hand front seat. Fullerton meanwhile noticed a bag which he discovered contained 26 automobile keys, plus masks and gloves.
We shall proceed to consider defendant's contentions first as to the searches of their persons and then as to the search of the automobile.
Defendants contend first that they were illegally arrested and as a consequence, any evidence seized during the routine searches conducted pursuant to these arrests was obtained in violation of their Fourth and Fourteenth Amendment rights and must be suppressed.
It is true that the validity of a search incident to an arrest depends upon the constitutional validity of the arrest itself. Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). It is also true that evidence obtained as a result of an unconstitutional and unlawful arrest must be excluded from evidence. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). To test the validity of the arrest, we must turn to New Jersey Law since the defendants were arrested within the jurisdiction of the state of New Jersey by officers of a municipality within that state. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).
Defendants' contention is premised upon their own factual determination that they were initially arrested only for allegedly tampering with an automobile, which under New Jersey law is classified as a disorderly person offense or petty offense. (2A N.J.S. 169-4). This determination assumes significance because New Jersey law, which follows here the Common Law tradition, allows warrantless arrests of persons suspected of petty offenses only if the offense is committed in the arresting police officer's presence. State v. Morse, 54 N.J. 32, 252 A.2d 723 (1969). As the arrest in the case at bar was warrantless; was made for an alleged petty offense; and was not committed in the arresting officer's presence, the defendants conclude that it was invalid, which in turn would render the subsequent search invalid. We disagree with this conclusion because we do not begin with the same factual determination as do the defendants.
The information which was related by a reliable informant (N.T. 99) to Officer Robertson, one of the arresting officers, regarding the activities of the defendants, we believe presented probable cause for arrest based on the charge either of auto theft or attempted larceny of its contents or both. New Jersey law designated the theft of "any money, goods, chattels, or other personal property of another," as at least a misdemeanor and if the value of the property is over $200.00 as a high misdemeanor. 2A N.J.S. 119-2. Generally high misdemeanors carry a maximum penalty of seven years whereas plain misdemeanors carry a maximum penalty of three years. However, we need not determine the potential value of whatever the defendants were seeking because again under New Jersey law, warrantless arrests are allowed merely on the basis of probable cause on all crimes carrying sentences of at least one year. State v. Hand, 101 N.J.Super. 43, 242 A.2d 888 (1968); State v. Hutchins, 43 N.J. 85, 202 A.2d 678 (1964). It should be noted that an attempt to commit a high misdemeanor or a misdemeanor would also carry the same maximum penalties. 2A N.J.S. 85-5.
In deciding as we do that probable cause existed here for an arrest for at least a misdemeanor, we need not rely upon subsequent findings such as the formal charges brought against the defendants or their eventual disposition. Even had the Moorestown police not actually charged the defendants with anything more than tampering with an automobile, the arrest and subsequent search would remain valid so long as probable cause existed at the time of the arrest for more serious charges. State v. Zito, 54 N.J. 206, 254 A.2d 769 (1969). In Zito, a taproom owner supplied information to the police which made out probable cause for arrest of defendants on charges of conspiracy to commit larceny, burglary, or robbery. The police, however, arrested the defendants without a warrant, on a disorderly person statute of the petty offense category. Upon an immediate search, goods were found on their persons and in their car which later proved to be stolen. Through this evidence they were convicted of burglary and larceny of the goods. The New Jersey Supreme Court noted that without a warrant the defendants could not have been validly arrested on the petty offense statute, but it upheld the validity of the search incident to a warrantless arrest finding that the information supplied by the taproom owner made out probable cause for arrest on conspiracy to commit larceny, burglary, or robbery. The Court then went on to say:
"The question then is whether it should matter that the arresting officer selected one of the known bases of arrest rather than another, and that, hypothetically for our immediate discussion, the basis selected is later adjudged to be inadequate. . . . It would be a windfall to the criminal, and serve no laudable end, to suppress evidence of his guilt upon the fortuitous ground that the arresting officer, who knew ...