the record fails to make out the commission of the crime of auto tampering, and presumably any other crime associated with automobiles. What defendants assert is needed under New Jersey law is the testimony of the owners of the victimized automobiles to demonstrate lack of consent. To require the negation of consent before the arrest clearly is absurd. Probable cause and not absolute certainty that a crime is being or has been committed is the standard for making an arrest. The police are allowed, as they must be, to make and draw logical conclusions in determining probable cause. The logical conclusion to be drawn from a situation in which the driver of an automobile pulls up next to an empty parked vehicle, and while still in the car, reaches across and appears to be trying keys in the lock of that parked vehicle, and then moves on and repeats the same procedure at another vehicle apparently chosen somewhat at random is that the owners did not give their consent. If this issue had to be decided conclusively before arrest, many fewer arrests for auto theft could ever be made.
Had the matter gone to trial, at least one of the owners of the vehicles could have testified since a license number of one of the "victim" automobiles was obtained and given to the police. (N.T. 57-58). Even if no owner had been found, an acquittal does not invalidate that which was at the time a lawful arrest. Strelecki v. Coan, 97 N.J.Super. 279, 235 A.2d 37 (1967).
Defendant Nazarok alone raises a further point to show that the arrest was illegal as to him. He asserts that since he was never identified by the witness James Schwab as having been involved in the incidents in question, the police officers had no cause to arrest him. It is evident from the testimony of Schwab and of the police officers at the hearing that while the former perhaps intended to identify only Rickus, the latter understood the identification to have been as to both defendants. (N.T. 108, 329-331) in determining whether or not an officer had probable cause to arrest without a warrant, we look to what he reasonably understood to be true. Whereas the officers may have accepted as fact that which may not have been fact in the courtroom sense, still it is his understanding of the facts that we probe in determining probable cause existed. See State v. Burnett, 42 N.J. 377, 201 A.2d 39 (1964). Here, although perhaps through a misunderstanding, Officer Robertson believed that Schwab identified both men and consequently there existed probable cause to arrest Nazarok as well as Rickus.
We find that the police were proper in making a warrantless arrest of both defendants under the circumstances, having probable cause that at least a misdemeanor punishable by imprisonment of over one year had been committed. The personal searches pursuant to the arrest are, therefore, valid.
Defendants contend secondly that evidence found in the blue Chevrolet was seized without a warrant in violation of their Fourth and Fourteenth Amendment rights and must be suppressed. Even assuming the illegality of the search, a determination we need not make, we find that the defendants lack the requisite standing to challenge it.
Defendant Rickus in his testimony at the Suppression Hearing, specifically stated that he and Nazarok had not been in nor had they seen a blue Chevrolet on the day in question, but had arrived and were planning to leave the Mall in Nazarok's silver gray Cadillac. (N.T. 250, 251, 283). These statements denying any association, legitimate or illegitimate, with the blue Chevrolet, in effect leaves the defendants without any interest recognizable at law with regard to the privacy of the contents of the blue Chevrolet.
The requirements for standing to challenge a search were discussed extensively in Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). In rejecting certain distinctions of tort and property law concerning the requirements for standing, the Court stated:
"No just interest . . . will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched." 362 U.S. at 267, 80 S. Ct. at 734 (Emphasis added.)
It is basic that Fourth Amendment rights are personal to those alone who assert their interest in the object of the search and seizure and cannot be asserted vicariously. Having chosen to affirmatively deny any interest in or association with the blue Chevrolet, the defendants cannot assert Fourth Amendment rights with respect to the same and to its contents and object to the legality of the search. The present case is akin to United States v. Toliver, 433 F.2d 867 (1970) wherein the Court stated:
"The government contends that appellant has no standing to challenge the seizure of the contraband at the bridge. It points out that appellant was not present at the time and has never claimed a possessory interest in or control over, the Oldsmobile. Therefore under the teachings of Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960), and the decision of this court in Diaz-Rosendo v. United States, 357 F.2d 124 (9th Cir.), cert. denied, 385 U.S. 856, 87 S. Ct. 104, 17 L. Ed. 2d 83 (1966), appellant has no position to object." 433 F.2d at 869.