If the defendant does not cooperate with the pat down given the officer’s fear of their own safety, and the positive dog sniff, are the police allowed to conduct a strip search without a search warrant?

Submitted by New Jersey Criminal Attorney, Jeffrey Hark.

I was recently arrested after a motor vehicle stop. The police threatened to bring a dog to the scene while they were searching the car. They smelled “burn “marijuana “and/or raw marijuana? The police also had confidential informant information that this defendant may have or always had a gun in his possession. Issues: If the defendant does not cooperate with the pat down given the officer’s fear of their own safety, and the positive dog sniff, are the police allowed to conduct a strip search without a search warrant.

All of these issues were raised in the following case that outlines these issues. The court ruled the police have probable cause to conduct the removal of the defendant from the car as a result of the smell of marijuana, the pat down for their safety was allowed, and the hard object felt, was enough to enable the subsequent strip search without a warrant because the defendants actions while on the side of the road and at the police department. The defendant’s civil rights, constitutional rights were not violated because of the strip search given probable cause.

The Issues:  The court stated: Among other issues, this appeal requires us to decide whether the strip search statute (the Statute), N.J.S.A. 2A:161A-1 to -10, applies to crimes. We granted defendant Ricky Brown’s motion for leave to appeal from a January 31, 2018 trial court order, denying his motion to suppress evidence seized as a result of a strip search following his arrest for indictable drug offenses. After reviewing the record in light of the contentions advanced on appeal.    The key here is that strip searches are afforded extra or heightened protection from our state constitution as well as the federal constitution.  Evidence seized as a result of a strip search conducted in violation of N.J.S.A. 2A:161A-1 is subject to suppression. State v. Harris, 384 N.J. Super. 29, 49-51 (App. Div. 2006); State v. Hayes, 327 N.J. Super. 373, 385 (App. Div. 2000). Indeed, the Statute provides “greater protection than is afforded by the Fourth Amendment.” Id. at 381. Originally adopted in 1985 to establish statutory guidelines for acceptable parameters of a strip search, the Statute presumably was enacted in response to State v. Sheppard, 196 N.J. Super. 448, 455 (Law. Div. 1984), a trial court decision invalidating a police department’s policy of strip searching all detainees. See L. 1985, c. 70; Hayes, 327 N.J. Super.at 381.

The Facts: On April 5, 2017, Atlantic City Vice Detective Darrin Lorady conducted surveillance of defendant’s residence based on “detailed information” Lorady had “fairly recently” received from a confidential informant (CI). According to the CI, defendant would drive from his house in Little Egg Harbor to the Fox Manor Hotel in Atlantic City, which Lorady described as “a very busy place for vice detectives.” The CI claimed defendant would distribute narcotics to a particular individual at the hotel. The CI provided Lorady with defendant’s address in Little Egg Harbor and a description of defendant’s vehicle, including the license plate number. The CI also stated defendant “always has a gun.”1 At approximately 10:30 a.m., defendant left his house and drove to a Walmart in town. Aided in his surveillance by Detective Brian Hambrecht, Lorady followed defendant and observed him engage in a “hand-to-hand transaction” in the Walmart parking lot with the driver of another vehicle. The detectives then followed defendant into Atlantic City, heading toward the Fox Manor Hotel. As defendant approached the hotel, he began circling the block, which Lorady explained was a common maneuver “to lose a tail or . . . to see if people are following you.” Defendant, who Lorady believed had noticed the surveillance, then drove out of the city. Based on their observations of the hand-to-hand transaction, the accuracy of the CI’s information, and a tinted window infraction, detectives stopped defendant’s vehicle on Route 40, described by Lorady as “a major highway.” Lorady testified on direct examination that the CI told him defendant “occasionally [would] be in possession of a weapon[,]” but on cross-examination, defense counsel elicited testimony from Lorady that the CI said defendant “always has a gun” as documented in Lorady’s report. Lorady asked defendant, who “was visibly shaking” and “seemed very upset[,]” to exit his vehicle. By that time, other officers had arrived, including a K-9 partner, who positively alerted for the presence of narcotics in defendant’s vehicle. During the K-9 sniff, defendant “became more nervous as time progressed” and continued reaching for a “distinct bulge” in his groin, “adjust[ing] it slightly.” Believing defendant “possibly was adjusting a weapon,” Lorady attempted to perform “a protective pat down for [his] safety.” Defendant “pulled away” stating, “you can’t touch me there.” Lorady “couldn’t successfully complete the pat down[,] but [he] was able to feel that there was something . . . hard” in defendant’s groin, in an area that commonly is utilized to conceal weapons. The officers then handcuffed defendant and transported him to the police station where Lorady obtained permission from his supervisor to conduct a warrantless strip search of defendant. The strip search was conducted at noon, in a private interview room, and resulted in the seizure of five bricks of heroin from defendant’s groin “right where [Lorady] had felt [it].” Following his arrest, defendant was charged in an Atlantic County indictment with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one), and second-degree possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count two).

Several issues with regard to the strip search issues: The reviewing court and the trial court recognized that:” Pursuant to the Statute: A person who has been detained or arrested for commission of an offense other than a crime shall not be subjected to a strip search unless: a. The search is authorized by a warrant or consent; b. The search is based on probable cause that a weapon, controlled dangerous substance, . . . or evidence of a crime will be found and a recognized exception to the warrant requirement exists; or c. The person is lawfully confined in a municipal detention facility or an adult county correctional facility and the search is based on a reasonable suspicion that a weapon, controlled dangerous substance, . . . or contraband, as defined by the Department of Corrections, will be found, and the search is authorized pursuant to regulations promulgated by the Commissioner of the Department of Corrections. [N.J.S.A. 2A:161A-1 (emphasis added).]

Clearly, as the motion judge recognized, the plain language of N.J.S.A. 2A:161A-1 limits its application to non-indictable offenses. Indeed, none of the parties or amici contend otherwise. At issue, however, is whether the Guidelines extend the protections of the Statute where, as here, a suspect is arrested based on probable cause of having committed an indictable offense. Now that the issue of a gun came into play, especially during the commission of a drug crime, the indictable crime prong was satisfied.

Next, Because the Guidelines apply to crimes and non-indictable offenses, they deviate from the explicit provisions of the statutory mandate pursuant to N.J.S.A. 2A:161A-8(b). The Guidelines also “establish more exacting requirements for a strip search than those established by N.J.S.A. 2A:161A-1.” State v. Evans, 449 N.J. Super. 66, 88 (App. Div. 2017), rev’d on other grounds, ___ N.J. ___ (2018). For example, where a suspect is arrested without custodial confinement, “N.J.S.A. 2A:161A-1(b) would permit a strip search upon a finding of probable cause and a recognized exception to the warrant requirement, [whereas] the Attorney General Guidelines [Section II(A)(1)(a)] completely eliminate subsection (b) as a basis for permitting a strip search in the absence of exigent circumstances.” Id. at 89.

Pertinent to this appeal, the Legislature empowered the Attorney General to issue regulations and directives concerning how a strip search is performed, i.e., basic procedures for privacy and sanitary conditions.4 Absent from the Statute or legislative history, however, is any provision authorizing the Attorney General to extend the same search requirements to individuals who are detained or arrested for crimes. In that respect, the Guidelines are not statutorily authorized or otherwise a rational implementation of the Attorney General’s delegated power pursuant to N.J.S.A. 2A:161A-8(b).

In this case, the strip search also turned on the ‘exigency’ or emergency circumstances of the officer at the scene and his own safety.  The court examined this argument and ruled in favor of the state:

We next turn to defendant’s constitutional challenge, focusing on whether exigent circumstances existed to justify the warrantless strip search.6 In particular, defendant challenges the trial court’s determination that his actions in resisting the pat-down search at the side of the highway created exigent circumstances justifying the warrantless strip search at the police station. The Fourth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution, “protect citizens against unreasonable police searches and seizures by requiring warrants issued upon probable cause.” State v. Rodriguez, 172 N.J. 117, 125 (2002). Warrantless searches and seizures are “presumptively invalid.” State v. Pineiro, 181 N.J. 13, Defendant does not challenge the motion judge’s determination that the police had “[p]robable cause to believe the evidence of a crime would be found.” 19 (2004). When the State does not seek a warrant, the State bears the burden to demonstrate the search “falls within one of the few well-delineated exceptions to the warrant requirement.” Rodriguez, 172 N.J. at 125 (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). Our Supreme Court has recognized the exigent circumstances doctrine as one exception to the warrant requirement. State v. Cassidy, 179 N.J. 150, 160 (2004) abrogated on other grounds by State v. Edmonds, 211 N.J. 17 (2012). Proof of both exigent circumstances and probable cause “may excuse police

from compliance with the warrant requirement.” State v. Walker, 213 N.J. 281, 289 (2013) (quoting State v. Bolte, 115 N.J. 579, 585-86 (1989)). The focus of the exigent circumstances inquiry is whether the police conduct was objectively reasonable under the totality of the circumstances. State v. DeLuca, 168 N.J. 626, 634 (2001). “Generally stated, circumstances are exigent when they ‘preclude expenditure of the time necessary to obtain a warrant because of a probability that the suspect or the object of the search will disappear, or both.'” Id. at 632. “[T]he term ‘exigent circumstances’ . . . is incapable of precise definition because, by its nature, the term takes on form and shape depending on the facts of any given case.” Ibid. Accordingly, “the application of the doctrine of exigent circumstances demands a fact-sensitive, objective analysis.” Ibid. Courts consider various factors in assessing exigency. Ibid. The following factors are relevant to our inquiry in this case: “the degree of urgency involved and the amount of time necessary to obtain a warrant”; “the possibility of danger to police officers guarding the site of contraband while a search warrant is sought”; “the gravity of the offense involved”; “the possibility that the suspect is armed”; and “the strength or weakness of the facts establishing probable cause[.]” State v. DeLuca, 325 N.J. Super. 376, 391 (App. Div. 1999), aff’d as modified, 168 N.J. 626 (2001).

Having considered the totality of the circumstances as they unfolded after Detective Lorady stopped defendant’s vehicle, we are satisfied exigent circumstances existed to justify the warrantless strip search. Specifically, following the K-9 dog’s detection of narcotics in defendant’s vehicle, his nervous demeanor and evasive actions while Lorady attempted to perform a protective pat down,7 heightened the officer’s suspicions that defendant “possibly was Following oral argument, with our permission, the State and the Public Defender filed supplemental briefs addressing State v. Evans, ____ N.J. ____ (2018), which was decided by the Supreme Court after the initial briefs were filed. The Court in Evans applied the plain feel exception to the Statute, adjusting a weapon” in his groin area. Although defendant prevented Lorady from completing the pat down at the side of a busy highway, Lorady felt a hard object and was cognizant of the CI’s information that defendant was “known to be armed during the course of these narcotics investigations and the fact that so far the information that was provided to [Lorady] all added up.” Moreover, having lawfully arrested defendant, Lorady had “the right and duty to search him for weapons and contraband before placing him in a patrol car.” State v. Gibson, 218 N.J. 277, 299 (2014). “It also follows that the police have the authority to ensure, at headquarters, that a person under arrest is not armed with a weapon.” Ibid.

In conclusion, the court affirmed the trial judge and ruled: “We agree that under those circumstances, it was untenable to

delay the search to obtain a warrant. In sum, defendant’s actions in resisting the pat-down search created exigent circumstances justifying the warrantless strip search, and it was not reasonable to expect the officers to apply for a search warrant. Because Lorady believed defendant was concealing a weapon, the officer reasonably removed defendant from the side of a busy highway to the police station, and obtained his supervisor’s permission to conduct a strip search in accordance with accepted procedures. We therefore conclude that the motion record supports the judge’s conclusion that exigent circumstances properly justified the warrantless strip search. Affirmed”





Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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