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June 21, 1982


The opinion of the court was delivered by: MOTLEY

MOTLEY, Chief Judge.

 Defendant Jerome Baptist has moved to suppress physical evidence (two checks allegedly stolen from the United States mail) that was seized from him by a New Jersey police officer on September 22, 1981. An evidentiary hearing was held on the motion on June 7, 1982. At the hearing, Police Officer Vincent DeRienzo, of the Bergen County police testified for the Government. Defendant offered no evidence or testimony.

 By order dated June 11, 1982, the court granted defendant's motion to suppress. This opinion sets forth the court's reasons for its disposition of defendant's motion.


 On September 22, 1981, at approximately 10:30 A.M., defendant was a passenger in a car driven by Vincent Cassucci. The car was traveling at 35 miles per hour in a 50 mile per hour zone on a six lane highway, flashing its 4-way hazard light and impeding the flow of traffic. Police Officer DeRienzo testified that after the car had passed two open gas stations, and at a point where the highway was about to narrow to four lanes, he stopped the car. He testified that he stopped the car so that traffic would not be further impeded (Tr. 6-7). The officer then approached the car and asked the driver for a license, registration, and insurance card. Cassucci stated that he did not have his driver's license in his possession, but gave the officer an insurance card and the car registration. The officer radioed this information into police headquarters and ascertained that Cassucci's license had been suspended.

 Officer DeRienzo then returned to the car and asked the passenger, Baptist, if he had a license. The officer testified that he asked this question as a courtesy, because if neither Baptist nor Cassucci had a valid license, he would have had to impound the vehicle (Tr. 8). There was no testimony concerning the condition of the car. After Baptist stepped out of the car without answering, the officer told him to move to the back of the vehicle, where there was more room. Baptist did so, and then reached into his left front pants pocket and withdrew a billfold containing papers. As he did this, some of the papers fell out of his pocket onto the ground.

 The officer testified that "at this time . . . he (Baptist) had become very nervous . . . He was fumbling with the papers in his hand and shaking" (Tr. 10). Baptist then asked if he could go to the bathroom, and, at the same time, placed his left foot over the papers that had dropped to the ground.

 The officer told Baptist that he could not go to the bathroom and then asked Baptist what was under his left foot (Tr. 10). Baptist replied that it was something for his mother (Tr. 10). Officer DeRienzo then reached down and picked up from under Baptist's foot two plain business-sized envelopes, with no markings or addresses on them, which were folded together but which had been ripped open. After Baptist asked the officer a second time if he could go to the bathroom, and the officer denied the request, the officer asked a second time about the contents of the envelopes. Baptist replied that he did not know what was in the envelopes and that he had found them in New York. At this point the officer opened the envelopes and examined the contents. He found in one envelope a check for $174,000.00, and in the other a check for approximately $24,000.00. *fn1"


 The opening of Baptist's envelopes was preceded by several actions taken by Officer DeRienzo, each of which must be examined separately by the court. After careful consideration, the court concludes that while the initial stopping of the vehicle and the request that the driver produce a license was proper, the subsequent detention of Baptist and the seizure of his envelopes ran afoul of the Fourth Amendment's proscription against unreasonable searches and seizures. Accordingly, the motion to suppress the fruits of the illegal search and seizure is granted.

 The Stopping of the Car and the Questioning of Cassucci

 The legitimacy of the stop of Cassucci's car must be examined in light of the Supreme Court's holding in Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). There, addressing the propriety of a random spot check of an automobile to check a driver's license and registration, the Court held that "except in those situations where there is at least articulable and reasonable suspicion that a motorist is unlicensed or an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his license and the registration of the automobile are unreasonable under the Fourth Amendment." 440 U.S. at 663. While Delaware v. Prouse thus makes clear that a driver may be stopped for a violation of the traffic laws and asked to produce a license, there was no testimony here that Cassucci was actually violating the laws of New Jersey when stopped by Police Officer DeRienzo. The court concludes, however, that because Cassucci was traveling well below the speed limit, with his hazard light flashing, and impeding the flow of traffic, it was reasonable for the officer to have stopped the car as a safety measure.

 The next question is whether Officer DeRienzo's request that Cassucci produce his license was improper under the circumstances. This issue was addressed by the Fifth Circuit in United States v. Marlow, 423 F.2d 1064 (5th Cir. 1970). In Marlow, police officers had approached a stalled car to offer assistance to the driver. They subsequently asked for a driver's license, which the driver could not produce. The police then asked the driver to step from the car and show some identification. Rejecting the defendant's arguments that this procedure constituted a custodial search or arrest, the court held that in Texas, where a statute authorized such conduct, a police officer could ask a driver of a vehicle to produce his license, without implicating the Fourth Amendment. Id. at 1065. While the Second Circuit has not decided this precise issue, the court concludes that under the facts presented here, the request that Cassucci produce a license was only ...

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