as well as the allegedly prejudicial nature of the photographic spread, resulted in a denial of both his due process rights under the fourteenth amendment, and his right to counsel under the sixth amendment.
This argument is clearly without merit. With respect to the absence of counsel at the display, the law is settled beyond any possible doubt that a defendant has no constitutional right to be represented by counsel at a pretrial photographic identification. United States ex rel. Reed v. Anderson, 461 F.2d 739 (3d Cir. 1972).
Evidence related to pretrial photographic identification will be excluded only if "the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968). The testimony in this case utterly fails to support any charge that the photographic display was conducted in a prejudicial manner. The testimony of Patrolman Bell, Sergeant Komerosky and Agent Budenz at the suppression hearing establishes that Bell and Komerosky were separately shown six photographs each, all of which were very similar in nature. Only one of the photographs was of defendant; we are satisfied from the record with respect to this issue that neither Agent Budenz's conduct of the proceedings, nor the particular photograph of defendant which was among those exhibited, warrants suppression of the evidence of this photograph, or of the identification process itself.
IV. THE STOP AND SEARCH OF THE TRACTOR-TRAILER
A. The Stop
The last and most knotted issue goes to the propriety of the stop in the first instance, and the search and detention that thereafter ensued. Defendant contends that the police officers had no reasonable basis for the stop; hence, they argue that it was illegal, and that all of the fruits of this unreasonable stop and search must be suppressed.
The Government responds with a two-pronged contention: First : the stop was valid under a New Jersey statute, (N.J.S.A. 39:3-29), which permits random inspection stops for purposes of checking the operator's driver's license and the registration of the vehicle;
Second : all of the circumstances rose to a level of suspicion which justified a brief investigatory stop of the vehicle under fourth amendment standards; the further contention is that given the facts with respect to that stop, the search and subsequent detention also did not violate any constitutional right under that amendment.
The Government's first argument may be disposed of quickly. While the Government takes great pains to defend the constitutionality of the New Jersey statute, and thereby justify the stop, we need not consider that question, because that statute under the circumstances of this action, is not relevant. Admittedly, this was not a stop for the purpose of checking the license and registration of the driver and the vehicle. It was an investigative stop.
The testimony adduced from Sergeant Komerosky established that Defendant produced a valid license and registration upon the Sergeant's request. Nothing of a suspicious nature occurred between the time of the stop and the production of the requested papers. The suspicion was raised before the stop, posited, as it was, upon the route the truck followed, one that Officer Bell testified to as being not only unusual in daylight hours, but virtually unprecedented at that hour of the night. (N.T. 5). Therefore, if the stop is to be validated, it cannot be done on the basis of the New Jersey Statute cited, because that statute permits a stop for the purpose of checking license and registration and nothing more. Had defendant failed to produce those papers, or if the documents which were produced were suspicious on their face, we would have a distinctly different factual situation. That statute, however, once the check is satisfactorily made, which we accept as fact in this case, cannot justify the further investigation which the Sergeant pursued. Thus, we reject the Government's first ground. The case with respect to the stop, ensuing search and detention must rise or fall under the criteria which have been established by the decisions interpreting the fourth amendment to the Constitution. Only if the facts fall within conduct permitted under that amendment can the stop, ensuing search and detention be validated.
The investigatory stop of a vehicle is a "seizure" within the purview of the fourth amendment. Terry v. Ohio, 392 U.S. 1, 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); Carpenter v. Sigler, 419 F.2d 169, 171 (8th Cir. 1968); United States v. Mallides, 473 F.2d 859, 861 (9th Cir. 1973); if it is to be upheld it must be found to have been "reasonable" under the circumstances in which it was made. The Supreme Court has not defined the standard to be applied to vehicular stops, but in Terry v. Ohio, supra, which considered the validity of a policeman stopping, briefly detaining, and interrogating a pedestrian, the Court suggested that the inquiry into the validity of any seizure or search is twofold: " whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." 392 U.S. at 20 (emphasis supplied). In Adams v. Williams, 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921 (1972), the Court further refined its holding in Terry when it stated:
The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.
Id. at 145.
We are dealing with elusive concepts. A court, in addressing itself to the specifics of the particular case before it, suffers the frustration of one trying to grasp quicksilver with bare hands when it attempts to delineate the factual circumstances, which on the one hand justify a stop by a police officer, and which, on the other hand, invalidate a stop as impermissive under the Fourth Amendment. In Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969), two Nebraska police officers on patrol in the early morning hours had stopped the defendant's automobile after they had observed it moving slowly through the streets in an area plagued by recent burglaries. The Court held that the totality of all of the facts justified the stop. United States v. Fallon, 457 F.2d 15 (10th Cir. 1972) presented a fact pattern in which two New Mexico officers had their suspicions aroused when they observed an expensive car which had recently been painted in a bizarre fashion driven by youths who also had a bizarre-look. The stop of the vehicle was found to have been reasonable.
Other cases have presented less persuasive fact situations. In United States v. Davis, 459 F.2d 458 (9th Cir. 1972), two Los Angeles police officers had observed the defendant in front of a motel which was a known gathering place for narcotics addicts. Defendant was swaying and having difficulty in staying on his feet. The officers concluded in that case "there was something wrong", and when shortly thereafter they saw defendant in an automobile, they stopped the car and found that defendant was in possession of stolen checks. The court concluded that the Terry standard had not been met, and reversed the defendant's conviction.
A consistent rule of law can not be found in this series of cited cases;
if there is any rule it is that the decision in each case has been bottomed upon the facts peculiar to it.
Thus, we must rest our decision upon the facts of the case at bar; two points are of unique singular significance: first : the stop was made by local police officers who knew that territory well; second : the vehicle was not a private automobile, but a commercial tractor-trailer.
What, then, is the significance of these factors? First : the determination of "reasonableness" under the fourth amendment requires a balancing of the interests of the state with the rights of the individual. In the context of the type of seizure involved in the case at bar, the interest of the state in the investigation and detection of criminal activity must be weighed against the right of the individual to proceed at liberty along the public highways, free from arbitrary interference by state officials. See Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949); Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925). However, while the brief interruption of untrammelled highway movement is of sufficient import to demand the constraints of the fourth amendment, it is nevertheless a relatively limited intrusion upon the liberty of the individual. Measured against this intrusion is the duty of the local police officer to investigate crime. A local police officer, particularly in a small rural township, such as Burlington Township, New Jersey, must be recognized as more than an enforcer of the laws. He is a symbol of the community; he is aware of its problems and those of its citizens; he relates to community members on an intensely personal level. By experience, he is cognizant of the routine movements within the town, and should be given wider latitude than a federal officer to investigate suspicious deviations from this routine. See Frye v. United States, 315 F.2d 491, 494 (9th Cir. 1963).
Even a local police officer, of course, may not make an investigatory stop which is irrational, one based purely on his intuitive feel without more. The legality of each stop must be determined by an objective analysis of the facts, and the test must be one that is not based upon visceral reactions and feelings. Police officers of local jurisdiction however, must have sufficient freedom of action legitimately to pursue an investigation when facts known to them present a sound basis to conclude that criminal activity has taken place, is occurring, or imminently will occur. In this regard, local police officers should not be expected to ignore the lessons that experience has taught them, and if a situation is presented to an officer which is both highly abnormal and creates a reasonable inference of criminal activity, the officer then does have a sound basis upon which to justify an investigatory stop of a vehicle and a limited detention of its occupants.
The second telling factor in the case at bar is the nature of the vehicle which was stopped. The foundation upon which the fourth amendment is based is the right of the individual to privacy free from unreasonable state intrusion. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). As noted, the "reasonableness" standard requires a balancing of interests, and there are thus relative "zones of privacy" within which the individual is protected from varying degrees of state intrusion. Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). The occupants of a motor vehicle clearly are within the scope of fourth amendment protection, for in such situations there is a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); Carpenter v. Sigler, supra. The Supreme Court has recognized, however, that an individual's privacy interest in an automobile is less compelling than in a home. The Court in Preston v. United States, 376 U.S. 364, 366, 11 L. Ed. 2d 777, 84 S. Ct. 881 (1964) stated:
Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motorcar.