New Jersey Criminal Lawyer – Appellate Opinions – State v. Privott – Searches of the Person

Part VII. Searches of the Person

State v. Privott, 203 N.J. 16 (2010)

In assessing the scope of the search by the officer, the evidence is clear that defendant was cooperative at all times. When stopped, defendant placed his hands against a fence as instructed by the officer. A reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been the traditional pat-down search of defendant’s outer clothing. That did not occur. Rather, the police officer lifted defendant’s tee-shirt to expose defendant’s stomach, and in doing so, observed a plastic bag with suspected drugs in the waistband of defendant’s pants. That maneuver exceeded the scope of the pat-down search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned.

This is not a case in which the officer felt a bulge, but could not determine what it was, and the defendant refused to obey the orders of the police and continued to move his hands towards the unidentified bulge. Under those circumstances, we found “an objectively reasonable concern for the officers’ safety” to validate the officer’s removal of the object. Nor is this case in which the officer first conducted a lawful pat-down and upon feeling a hard object, removed it to discover a weapon.

As we have often “stated, the facts surrounding the event are pivotal.” Our jurisprudence attempts to strike a balance between the competing interests of an individual’s right to privacy and the need to protect the police from persons with weapons. In this case, we strike that balance in favor of the traditional pat-down search. We conclude that the officer’s conduct in lifting defendant’s shirt exceeded the reasonable intrusion that we permit as part of a Terry stop.

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