Submitted by New Jersey Criminal Lawyer, Jeffrey Hark
In this case the sole issue is whether the police had the appropriate probable cause to conduct a strip search without consent and without a warrant.
The facts in this case are pretty straightforward and consistent with a number of motor vehicle stops. The police pulled a car over for a motor vehicle infraction. As the officer was walking up to the car he smelled marijuana. He then order the driver out of the car and patted him down. All lawful conduct. The officer then felt a round cylindrical container in the driver’s groin area. The officer testified he believed this was a prescription pill bottle. They took the defendant back to the police department, ask for consent to search, and when they did not receive it they had him strip searched anyway. New Jersey strip search procedure is governed by a very specific statute which provides:
N.J.S.A. 2A:161A-1 states:
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:
- 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.
Accordingly, the only basis to conduct a strip search is by consent or with a warrant. In this case the officers did not obtain a warrant. In addition the mere presence of the prescription bottle, which also could have contain marijuana, did not apply to the facts and circumstances. This was the case because the officer’s initial basis for the probable cause to get the driver out of the car was for the smell of marijuana, and not erratic driving or observation of illegal prescription pills.
As a result the officer did not have the requisite basis and his affidavit to secure the search warrant was misleading because there was additional basis for the position of the prescription bottle. Another words, marijuana could also I’ve been in the prescription bottle and not just pills. The strip search statute prohibiting searches for “offenses “as opposed to crimes. The position of under 50 g of marijuana is a disorderly persons “a fence quote, as opposed to a fourth or 3rd° crime under New Jersey criminal code. Accordingly there is no basis for any type of strip search pursuant to statute.
As a result, this officer was not allowed, again as a matter of law, from conducting any type of strip search. The mere fact that they found pills, illegally obtained and possessed, after the fact, does not enable the police to justify the illegal search from the beginning. Remember, this was a weed case, this statute governing strip search is not allowed searches for disorderly persons offense is, and the police were not aware of any illegal drug possession in the form of pills until after the search took place.
So when it comes to strip searches, remember do not give consent. In addition, without a search warrant the police cannot search you for illegal pills. Finally, you cannot be strip searched at all for disorderly persons offenses such as possession of weed.
Jeffrey S. Hark, Esq.