EFFECTIVE DATE:
EFFECTIVE DATE: |GENERAL ORDER # 038 | |
|SUBJECT: SEARCH AND SEIZURE |
|ISSUED BY: |# OF PAGES: 30 |
|DISTRIBUTION: |REVIEW DATE: |
|LAST REVISED: |
|ACCREDITATION STANDARDS: |
PURPOSE: To enhance the operational effectiveness of this department and limit the exposure to liability by clearly illustrating the constitutional considerations associated with law enforcement procedure as it relates to search and seizure issues.
POLICY: The Fourth Amendment to the United States Constitution and Article I paragraph 7 of the New Jersey Constitution provide the basis for established law enforcement procedure relating to the area of search and seizure. All department activities conducted in this area must be consistent with the provisions of the United States and New Jersey Constitutions and all resulting legal precedent.
PROCEDURE:
I. Introduction
A. The Fourth Amendment to the United States Constitution states: “The right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.
B. Article I paragraph 7 of the New Jersey Constitution, in very similar language, states: “The right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized”.
C. This directive addresses general and specific criteria for warrantless searches conducted pursuant to the recognized exceptions to the written warrant requirement, as well as other miscellaneous warrantless searches that are permitted by the Federal and State Constitutions. Officers shall scrupulously apply the provisions of this directive in reaching decisions concerning search and seizures issues. In the absence of appropriate guidance in this document, officers shall confer with a supervisor, or seek other legal advice at the direction of a supervisor.
II. Definitions
A. Search: generally an examination of an individual’s person, house, papers or effects, for the purpose of discovering weapons, contraband or evidence associated with a offense that may be used in a future prosecution. However, a search actually occurs whenever an expectation of privacy that society is prepared to consider reasonable is infringed.
B. Seizure: generally when a law enforcement officer confiscates an individual’s person, house, papers or effects (property) in which he or she has a privacy interest. However, a seizure can be deemed to have occurred whenever when there is some meaningful interference with an individual’s possessory interests in the property seized.
III. The Written Warrant Requirement
A. Generally, the United States Supreme Court has viewed a search and seizure as “per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the places to be searched and the items to be seized”.
1. As a fundamental principal, search warrants are strongly favored under both the federal constitution and all state constitutions.
2. The Fourth Amendment is designed to protect “the people” from arbitrary actions by the government.
• The term “people” has been defined as “a class of persons who are part of a national community or who have otherwise developed sufficient connections with this country to be considered part of that community”. United States v. Verdugo-Urquidez
• “Once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. United States v. Verdugo-Urquidez
B. The United States Supreme Court in Mapp v. Ohio created a rule of law to safeguard Fourth Amendment Rights that is known as the “exclusionary rule”.
1. The exclusionary rule is a judicially created device, which is employed by the courts to prohibit the use of evidence at a criminal trial when that evidence has been seized by law enforcement officials in violation of the constitution.
2. Since 1961 the exclusionary rule has been disallowing the use of evidence obtained in violation of the Fourth Amendment in state as well as federal prosecutions.
3. The primary purpose of the exclusionary rule is to deter future unlawful police conduct in the area of search and seizure.
C. A state court is free to impose greater restrictions on police activity than those created by the United States Supreme Court under the federal constitution.
1. In State of New Jersey v. Novembrino, the New Jersey Supreme Court stated that Article I paragraph 7 of the New Jersey Constitution “affords our citizens with greater protection against unreasonable searches and seizures than does the Fourth Amendment”.
2. New Jersey courts consider the probable cause section of Article I paragraph 7 of the New Jersey Constitution to be” the single most important consideration when determining whether an individual’s privacy has been invaded.” Novembrino
3. As an example, the United States Supreme Court, in United States v. Leon created a “good faith” exception to the exclusionary rule where law enforcement officers acted in objectively reasonable reliance upon a search warrant found to be deficient in the underlying probable cause. In Novembrino, the New Jersey Supreme Court refused to allow a good faith exception to the New Jersey Exclusionary Rule stating that it “has become an integral part of our state constitutional guarantee that search warrants will not issue without probable cause”.
Note: Particular information concerning search warrants and the procedures associated with such warrants can be found in written directive V8C16 – Search Warrant Procedures.
IV. Exceptions to the Written Warrant Requirement
A. Understanding that all searches and seizures conducted without a warrant are “per se unreasonable within the meaning of the Fourth Amendment”, once a law enforcement officer conducts a warrantless search or seizure, the burden of proof is on the government to validate the search or seizure by bringing it clearly within one of the recognized exceptions created by the United States Supreme Court.
1. As previously stated, there is a strong judicial preference for obtaining a search warrant prior to conducting a search or seizure.
B. The Constitution does not prohibit all searches and seizures, the Constitution only “forbids… unreasonable searches and seizures”. Terry v. Ohio Accordingly, the United States Supreme Court has established several recognized exceptions to its written warrant requirement. The formally recognized exceptions are as follows:
1. Searches conducted incident to a lawful arrest.
2. Probable cause based searches conducted in the face of exigent circumstances.
3. Searches of motor vehicles based on probable cause.
4. Searches conducted for the purpose of cataloging a person’s property through established inventory procedures.
5. Searches conducted pursuant to valid consent.
Additionally there are exceptions made for those law enforcement activities that are not considered searches within the meaning of the Constitution either because the property in question is situated in:
6. Open fields, or
7. Has been abandoned, or
8. The areas of concern are within plain view.
V. Search Incident to a Lawful Arrest
A. A law enforcement officer who has effected a lawful, custodial arrest is permitted to conduct a contemporaneous search of the person of the arrestee.
1. The purpose of this search is “to remove any weapons that the arrestee might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for a police officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction”. Chimmel v. California
2. In United States v. Robinson, the court held that “ a custodial arrest of a suspect based upon probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to arrest requires no additional justification.”
3. The offense for which the individual is arrested shall have no bearing on the authority to search provided the arrest was lawful.
B. Once a person has been lawfully arrested, not only may the police conduct a full search of the individual’s person but they may also conduct a search of the area within that person’s immediate control. Chimmel
1. The Supreme Court expanded the search for weapons and evidence to include the “area within that person’s immediate control” reasoning that “ a gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested”.
2. The scope of such searches must be strictly limited to “the area from within which the arrestee might gain possession of a weapon or destructible evidence.
• The courts have routinely ruled that searches, which exceed the scope of the area within an arrestee’s immediate control, will be found unlawful, and the evidence seized as a result of such search will be suppressed.
• In Chimmel, the court held that “there is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs, or for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.”
C. If an officer has probable cause to make an arrest, a search incident to that arrest is not rendered invalid merely because it precedes the officer telling the defendant he is under arrest, provided that:
1. Probable cause to arrest must pre-exist the search, and
2. The search is not conducted in order to arrest, and
3. The item(s) seized as a result of the search are not necessary to establish probable cause for the arrest.
D. While a law enforcement officer is entitled to conduct a full search of the person of an arrestee, this shall NOT be construed so as to allow a strip or body cavity search.
1. Officers shall refer to the written directive governing Strip/ Body Cavity Search Procedures for information concerning the circumstances that warrant such further intrusions.
2. All strip/ body cavity searches conducted by or under the authority of officers of this department shall be conducted in strict compliance with the provisions of the above-cited written directive.
E. In New York v. Belton, the United States Supreme Court held that an officer who has made a lawful custodial arrest of an occupant of an automobile “may as a contemporaneous incident of that arrest, search the passenger compartment of that automobile”.
1. In addition, police officers “may also examine the contents of any containers found within the passenger compartment” regardless of whether they are open or closed.
2. Here the Court has provided police officers with a guide for the scope of searches that may be conducted incident to arrest of an occupant of an automobile by reasoning that “articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might reach in order to grab a weapon or evidentiary item.
4. However, the New Jersey Supreme Court in State of New Jersey v. Pierce, refused to follow the rationale of Belton in situations where the arrest of the automobile driver was for a routine traffic violation only.
• This decision has no bearing on probable cause based searches conducted under the automobile exception to the written warrant requirement.
• Moreover, in Michigan v. Long and State v. Lund the United States Supreme Court and New Jersey Supreme Court agreed that the search of a passenger compartment of an automobile is lawful if the police officer possesses a reasonable belief based on specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant the officer in believing that the subject is dangerous and the subject may gain immediate control of weapons.
• Finally, in State v. Pierce, the New Jersey Supreme Court noted that “in the event of an arrest for a traffic offense in which the arrestee remained in or adjacent to the vehicle, with the result that the vehicle was within the area of the arrestee’s ‘immediate control’, …a contemporaneous search of the vehicle could be sustainable under Chimmel, but not based on Belton’s automatic application of Chimmel.”
F. In State v. Bradley, the Appellate Division addressed the search of luggage and other personal property not immediately associated with the person of the arrestee. The Court’s reasoning is as follows:
“Once a law enforcement officer has reduced luggage or other personal property of an arrestee to their (police) control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.
VI. Exigent Circumstances
A. Police officers are permitted to conduct warrantless searches, in certain narrowly defined circumstances, pursuant to the exigent circumstances exception to the written warrant requirement. Generally, exigent circumstances fall into one of the following three areas, which are discussed in greater detail throughout this section.
1. The Emergency Aid Doctrine.
2. The Public Safety Exception.
3. Evidence Easily lost or destroyed.
B. In Mincey v. Arizona and Thompson v. Louisiana the United States Supreme Court decided and then revisited the issue of whether or not the seriousness of a criminal offense is sufficient justification to create an exigency allowing law enforcement officers to conduct a warrantless search of a premises. In both of these cases the crime involved was homicide and in both cases the Court held that the seriousness of the offense under investigation does not itself create exigent circumstances of the kind that under the Fourth Amendment would justify a warrantless search.
1. In Mincey, the court recognized “the right of the police to respond to emergency situations and (to make) warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid”.
2. Additionally, the court held that “when the police come upon a scene of a homicide they may make a prompt warrantless search of the area to see if other victims or if a killer is still on the premises”. During the course of this protective, victim/ suspect fan-out search, police may seize any evidence that is in plain view”.
B. In State of New Jersey v. Smith, the court held “a protective or fan-out search is justified by the need for the police to make sure no third parties are present who might endanger them. It follows, of course, that if such persons are found, the police may take reasonable measures to avert any physical threats of harm… as well as the confiscation of evidence in plain view.
1. In State of New Jersey v. Gosser, the New Jersey Supreme Court also recognized the right of police officers to make an “emergency warrantless search of every room of a defendant’s home when they reasonably believe a person within is in need of immediate aid.
2. In State of New Jersey v. Miller, the court upheld a protective, fan-out search of an attic which was conducted immediately after the officer who made an arrest downstairs for a narcotics offense heard a lot of creaking overhead. The court reasoned the “creaking noises” could have led the officer to believe that other persons were present and that the officers had become targets of hidden assailants.
C. Medical emergencies can also provide justification for a warrantless entry and/ or search in certain situations under the “emergency aid doctrine”. In Wayne v. United States, the court held that” when policemen, firemen and other public officers are confronted with evidence that would lead a prudent and reasonable official to see a need to act to protect life or property, they are authorized to act on that information, even if ultimately found erroneous. What gives rise to genuine exigent circumstances is the need to protect or preserve life or avoid serious injury.
1. In State of New Jersey v. Castro, the Appellate Division relied heavily on this decision in finding the police acted properly when they made a warrantless search of a residence based upon a reasonable belief that a person who was in need of medical attention was located therein. The court stated that” the exigency test may also be met by a prudent and reasonable belief that there is a potential medical emergency of unknown dimension.
D. In State of New Jersey v. Garland, the Appellate Division upheld a warrantless entry and search of a motel room when the police developed reasonable belief that several children had been left unattended and may therefore be in jeopardy. The court ruled the entry and search was lawful based upon the “emergency aid doctrine” and stated “three elements must be satisfied in order to justify a warrantless search under the emergency aid doctrine:
There must be (1) the existence of an emergency as viewed objectively; (2) a search not motivated by a desire to find evidence; and (3) a nexus between the search and the emergency.
E. All of the above cases involve searches for persons justified by different exigent circumstances. It is important to understand that the scope of these searches must be limited to areas in which the object of the search might be found.
1. Officers will not be able to justify the seizure of evidence from a closed drawer when the justification for the search was to possibly discover additional suspects.
2. The evidence seized in all of the cases cited above was found in plain view and the reasons the seizures were upheld is that the officers were found to be legally in position to observe the evidence based upon the reasonable belief that exigent circumstances existed.
F. In United States v. Rubin, the United States Court of Appeals for the Third Circuit addressed the issue of evidence easily lost or destroyed. The court found “no requirement that officers must know of the (actual) removal or destruction of evidence in order to make the search… When government agents…have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified”.
1. In United States v. Aquino, the court held that “an exception to the warrant requirement that allows police fearing the destruction of evidence to enter the home of an unknown suspect should be… supported by clearly defined indicators that are not subject to police manipulation or abuse”. Accordingly, law enforcement officers may not deliberately create emergency circumstances in order to circumvent the Fourth Amendment’s warrant requirement.
2. In State of New Jersey v. Hutchins, the Supreme Court identified two types of police-created exigent circumstances; those created “permissibly” and those created “impermissibly”.
• Permissible police-created exigent circumstances are present when the emergency arises naturally in the course of an appropriate investigation.
• Impermissible police-created exigent circumstances are present when the emergency arises from police action that is deliberately "designed to subvert the warrant requirement”.
G. In State of New Jersey v. Vanderveer, the court found that an officer had lawfully searched a defendant based upon probable cause to believe that a criminal offense had been committed and that additional contraband might be present after the officer smelled the odor of burnt marijuana in close proximity to the suspect.
1. The court referred to other decisions that have “upheld the validity of warrantless searches based on the detection of the odor of marijuana or marijuana smoke as providing probable cause, standing alone, for a search where the law enforcement officer who detects the odor has experience in identifying marijuana by smell.
2. The circumstances of the cases decided associated with the smell of marijuana and marijuana smoke were limited to situations occurring in confined areas, i.e., vehicle passenger compartment, rooms, etc.
H. In State v. Lewis, the New Jersey Supreme Court had occasion to examine a case involving the threatened removal of evidence from a premises, rather than destruction of the evidence. The Court indicated the following factors must be examined to determine if the threatened removal constituted a sufficient exigency to justify a warrantless entry of the premises.
1. The degree of urgency involved and the amount of time necessary to obtain a warrant.
2. The reasonable belief that the contraband is about to be removed.
3. The possibility of danger to police officers guarding the site of the contraband while a search warrant is sought. (this includes an inquiry into whether the premises is conducive to effective surveillance, as an alternative to a warrantless entry, while the warrant is sought).
4. Information indicating the possessors of the contraband are aware that the police are on their trail.
5. The ready destructibility of the contraband and the knowledge.
6. That a clear showing of probable cause existed, rather than a minimum of probable cause.
I. In Schmerber v. California, the United States Supreme Court held that the Fourth Amendment is not violated by “compelled intrusions into the body for blood to be analyzed for alcohol content” so long as: (1) the intrusion is “justified in circumstances” - that there is a “clear indication” that evidence of intoxication will be found, (2) the test utilized is a reasonable one, and (3) the test is “performed in a reasonable manner” in a medical environment according to medically accepted practices.
1. Under New Jersey law (State v. Jiosi) a warrantless, involuntary seizure of bodily fluids is justified when there is probable cause to arrest, probable cause to believe that evidence of a crime will be revealed by the search, articulable and demonstrable exigent circumstances to justify not seeking a warrant, and the specimen is taken in a medically acceptable manner.
2. As the physical intrusion moves from the simple to the more elaborate, from the less to the more intrusive, the following additional factors must be considered.
• The nature of the crime.
• The relevance of the evidence sought.
• The degree of risk to the person undergoing the procedure.
• The magnitude of the intrusion upon the dignity, privacy and bodily integrity of the individual.
3. If there is probable cause, then there is a clear legal right to require the motorist to submit to the taking of a sample of his blood. The consent of a motorist to the taking of a sample of his blood is not required. State v. Macuk
4. The blood sample may be taken by threatening the use of force or using force to obtain the sample as long as the threats or the force are not of such egregious nature as to implicate a due process claim. State v. Woomer
5. However, in State v. Ravotto, the New Jersey Supreme Court held that the force used to extract the defendant’s blood in this instance was unreasonable under the totality of the circumstances. In this case the defendant was held down by two police officers while a nurse drew the blood samples. The defendant repeatedly expressed fear and screamed and struggled to free himself during the process. In employing a balancing test that considers all relevant facts and circumstances, the Court decided that in this instance, the forced extraction of defendant’s blood offended the State and federal constitutions.
J. In State of New Jersey v. Malik, the Appellate Division determined that a law enforcement officer may, without a search warrant, compel an arrestee to provide a urine specimen when he or she has probable cause to believe the arrestee is under the influence of a controlled dangerous substance.
1. The court indicated that it was “fully convinced that the arresting officer might reasonably have believed he was confronted with an emergency, in which the delay necessary to obtain a warrant, threatened the destruction of evidence”.
2. Accordingly, under the exigent circumstances exception to the written warrant requirement, the minimal intrusion into the defendant’s bodily integrity, being so far outweighed by the legitimate demands of law enforcement, justified the police action.
3. This does not authorize the use of any level of force to obtain the sample.
K. In State v. Dyal, the New Jersey Supreme Court decided that a law enforcement officer may obtain the results of a blood test protected by the patient-physician privilege by applying to a municipal court judge for a subpoena duces tecum.
1. Upon a showing by the police that they have a reasonable basis to believe that the defendant was operating a motor vehicle while under the influence, the judge may issue the subpoena.
• In establishing a reasonable basis, the police may rely on objective facts known by them at the time of the event or within a reasonable time thereafter.
• The diminished prerequisite of “a reasonable basis” for the subpoena duces tecum has been upheld, as opposed to usual standard of probable cause.
L. In State of New Jersey v. Wright, the Appellate Division addressed the public safety exigency exception to the written warrant requirement and held that “the Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others”.
1. This case involved a situation where police had probable cause to believe that a shotgun was on motel property, but they did not know exactly where it was located.
2. Reasoning that it would have been impossible to prevent others, including possible accomplices and members of the general public (including children) from acquiring possession of the firearm during the time period required to get a search warrant, the court upheld the probable cause based warrantless search on the basis of exigencies created.
M. In State of New Jersey v. Faretra, the Appellate Division upheld the warrantless police entry of a private residence in situations where the police reasonably believe that premises have recently been or are being burglarized.
N. In State of New Jersey v. DeLuca, the Appellate Division upheld the warrantless search of the defendant’s pager (retrieval of stored phone numbers) that was seized at the time of his arrest.
1. In this case, a detective examined the defendant’s pager at a different time and place from his arrest.
2. The pager had received a call and the officer testified that he was aware that the storage capacity of the pager was limited and that if additional calls were received some of the numbers stored in the pager could be lost.
VII. Impounds and Inventory Searches
A. In South Dakota v. Opperman, the United States Supreme Court held that police may conduct an inventory of the contents of lawfully impounded vehicles as a routine, community caretaking function, in order to protect the vehicle and the property in it, to safeguard the police and others from potential danger, and to insure against claims of lost, stolen or vandalized property.
1. The Opperman Court approved of the police “assuming custody of vehicles as part of the community caretaking functions in various contingencies such as vehicle accidents and violations of parking ordinances jeopardizing the public safety and the efficient movement of vehicular traffic”.
B. However, in State of New Jersey v. Slockbower, the New Jersey Supreme Court held that routine impoundments and inventory searches conducted pursuant to the vehicle driver’s arrest for a motor vehicle offense amounted to “an unreasonable invasion of a driver’s zone of privacy unless the driver either consents or is given a reasonable opportunity to make other arrangements for the custody of the vehicle.
1. New Jersey requires “substantial police need, in light of the constitutional regard for the privacy interests of automobile drivers, before such impoundments will be upheld”.
C. In State of New Jersey v. Mangold, the New Jersey Supreme Court held that once “a vehicle is lawfully impounded and its owner or permissive user is present, that person must be given the option of either consenting to the inventory or making his own arrangements for the safekeeping of the property contained in the vehicle. Absent consent or alternative security provisions, an inventory may not be undertaken”.
1. In such cases where the owner or user refuses consent and refuses to make arrangements for the safekeeping of his property contained in the vehicle, the vehicle owner or user will be presumed to have assumed the risk for any claims of property loss or theft arising from the impoundment.
2. “Contraband discovered in the course of an inventory conducted without first (obtaining consent or) permitting vehicle occupants to utilize alternative means of safeguarding their property is inadmissible as evidence in a criminal prosecution.”
D. In State of New Jersey v. Ercolano, the New Jersey Supreme Court noted that the police may properly impound a vehicle subsequent to its driver’s arrest when: (1) the driver consents to the impound; or (2) the vehicle, if not removed, constitutes a danger to persons or property or the public safety, AND the driver cannot arrange for alternate means of removal; or (3) probable cause exists to believe both that the vehicle constitutes an instrumentality or fruit of a crime and that absent immediate impoundment, the vehicle will be removed by a third party; or (4) probable cause exists to believe that the vehicle contains evidence of a crime and that absent immediate impoundment, the evidence will be lost or destroyed.
1. So long as the only potential danger from non-impoundment is danger to the safety of the vehicle and its contents, no “substantial police need” exists justifying seizure of the vehicle over the objection of its owner or one operating the vehicle with the owner’s consent.
2. Only when the vehicle, if not removed, poses a danger to other persons, property or the public safety does there exist a “substantial police need” justifying impoundment if the driver is unable to arrange for a third to provide for the vehicle’s removal.
E. In State of New Jersey v. One 1994 Ford Thunderbird, the Appellate Division ruled, “Searches of vehicles impounded in contemplation of forfeiture are to be judged by the rules governing inventory searches”. As a result, the courts will require:
1. That the impoundment is justified and is conducted in accordance with standard department operating procedure.
2. That the police discuss the disposition of the vehicle’s contents with the owner (See State v. Mangold).
F. In Colorado v. Bertine, the United States Supreme Court held that “it is permissible for police officers to open closed containers in an inventory search of an impounded vehicle only if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle.
1. In Florida v. Wells, the Supreme Court re-emphasized the importance of “standardized criteria” or “established routine” in the area of impounded vehicle inventory searches and held that the “requirement is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence”.
G. In Illinois v. LaFayette, the United States Supreme Court found it reasonable under the Fourth Amendment “for police to search the personal effects of a person under lawful arrest as part of the administrative procedure at a police station house incident to booking and jailing the suspect.”
1. The inventory search constitutes an incidental administrative step following arrest and preceding incarceration. Its justification does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search.
2. In State of New Jersey v. Maloney, the Appellate Court ruled, “a lawful inventory search must in fact be one initiated pursuant to the designated purposes of such intrusion, rather than as subterfuge for a warrantless investigatory search”.
VIII. The Automobile Exception
A. Officers may conduct vehicle searches and seize evidence under authority of the Automobile Exception to the written warrant requirement when the criteria described herein have been met. The United States Supreme Court held that “on reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of the circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure… the search and seizure are valid”.
1. The Court cited the mobility of automobiles, boats and ships, and thus the realistic opportunity for movement out of the then current jurisdiction, as the reason for establishing a distinction between the searching of such modes of transportation and the searching of dwellings, stores and buildings.
B. In United States v. Ross, the United States Supreme Court addressed the permissible scope of searches allowed under the “automobile exception”. The court held that “police officers—who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it—may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view”.
1. Searches of vehicles that are supported by probable cause…are not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained. Ross
2. The probable cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate and not merely on the subjective good faith of the police officers. Ross
3. When probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Ross
• “Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in a trunk of a taxi contains contraband does not justify a search of the entire cab.” Ross
• In Wyoming v. Houghton, the United States Supreme Court ruled that ownership of an item or container does not have an impact on searches conducted under Ross. Accordingly, when a police officer conducts a probable caused based search of an automobile, he may search any item or container that is capable of containing the object of the search regardless of whether it is owned by the owner, operator or a passenger.
C. In State of New Jersey v. Cooke, the New Jersey Supreme Court held that under Article I, paragraph 7 of the New Jersey Constitution, the “automobile exception” to the written warrant requirement requires both probable cause and a finding of exigent circumstances to sustain a warrantless search.
1. Exigency in the constitutional context amounts to circumstances that make it impracticable to obtain a warrant when the police have probable cause to search the car.
2. This means that the circumstances giving rise to probable cause should be unanticipated and should develop swiftly and spontaneously.
3. Notwithstanding the above language, there is no reported decision in New Jersey where suppressing evidence seized under the “automobile exception” because of a lack of exigent circumstances.
4. It is important to note that the “automobile exception” will not justify a warrantless search of a motor vehicle where the circumstances giving rise to probable cause to search the motor vehicle were foreseeable.
• Where the police had ample time to obtain a search warrant before the vehicle was stopped, they MAY NOT conduct a warrantless search based on the automobile exception to the written warrant requirement.
• This should not be construed as requiring officers to interrupt an investigation in order to seek an anticipatory warrant to search a vehicle that officers have probable cause to believe will contain contraband or evidence of a crime.
• While it is both permissible and desirable to obtain anticipatory warrants when time permits, there is no requirement that officers obtain a search warrant at the first moment probable cause exists.
D. In State of New Jersey v. Patino, the New Jersey Supreme Court held that “the presence of a small amount of marijuana, consistent with personal use, does NOT provide…probable cause to believe that larger amounts of marijuana or other contraband are being transported”. In the absence of “other circumstances that suggest participation in drug traffic or possession of more contraband”, a search pursuant to the discovery of a small amount of marijuana could not extend beyond the persons of the occupants or the passenger compartment of the automobile.
E. In State of New Jersey v. Demeter, the New Jersey Supreme Court found a warrantless search of an opaque 35-millimeter film canister conducted by a police officer who observed the canister in plain view was unreasonable and suppressed the evidence recovered from the canister.
1. The court noted a lack of articulated probable cause to believe that the canister contained narcotics in light of the officer’s testimony that no camera was observed with the canister and his own prior experience (at least 20 cases) where 35-millimeter film canisters contained narcotics.
2. The Court emphasized that a finding of probable cause in the sense that a “fair probability” must be shown to be warranted by the objective factors that would permit a comparably well trained police officer to reach such a conclusion.
F. In State of New Jersey v. Boykins, the Court held that when a motorist is stopped for a traffic violation, and “the operator is unable to produce proof of registration, the officer may search the car for evidence of ownership”. The search must be reasonable in scope and confined to the glove compartment or other area where a registration might normally be kept.
1. A court will not conclude that a motorist has “failed to produce” his registration or insurance card unless the motorist is given a “reasonable opportunity to obtain them from the vehicle himself”. State v. Jones
2. In State of New Jersey v. Holmgren, the Appellate Division sought to insure that such searches do not intrude into more private areas. The Court reasoned “although the inability of a driver to produce driving credentials raises a reasonable suspicion that the vehicle was stolen, it does not constitute probable cause to believe that the vehicle was stolen”. “Inability to produce such papers on the spot does not authorize a police officer to violate a person’s reasonable expectations of privacy by conducting a probable-cause search of his or her wallet, purse or bag without consent”.
G. In State v. Lark, the Appellate Division failed to extend the rationale of State v. Boykins, in a case involving failure to produce identification (driver’s license). In this decision the Court concluded, “Where a driver has failed to produce his license and an investigating officer is merely trying to determine the driver’s identity so he can issue a citation, no search of the passenger compartment can be justified.”
1. The Court went on to explain that an officer is not left without legal alternatives for ascertaining the driver’s identity.
2. “New Jersey law prescribes exactly what an officer should do when, during a traffic stop, a driver fails to present his license and then lies about his identity. The officer may either detain the driver for further questioning until he satisfies himself as to the driver’s true identity, *** or arrest the driver for operating a vehicle without a license as provided for in N.J.S. 39:3-29 and N.J.S. 39:5-25***”.
H. In State of New Jersey v. Alston, the New Jersey Supreme Court held that the mere fact that the occupants of an automobile have been handcuffed and taken into police custody does not remove the situation from the automobile exception to the written warrant requirement.
1. Ready mobility of a motor vehicle means “the car is readily movable until such time as it is seized, removed from the scene, and securely impounded by the police. Until then it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it”.
2. Thus, if probable cause exists to search for weapons or contraband, the fact that the occupants have been removed, arrested or otherwise restricted in movement, does not prohibit the initiation of a search under the automobile exception to the written warrant requirement.
I. In State of New Jersey v. Guerra, the New Jersey Supreme Court upheld the permissibility of warrantless automobile searches based upon probable cause to believe that contraband is present. In Guerra, a state trooper detected a strong odor of raw unburned marijuana emanating from the interior of an automobile. When denied consent to search, the trooper removed the vehicle and its occupants to the trooper barracks and obtained a telephonic search warrant. The telephonic warrant was ruled invalid for lack of exigent circumstances, however the search was upheld under the automobile exception to the written warrant requirement.
1. The Guerra Court also noted that the lawfulness of the search was not affected by the fact that the vehicle and its occupants were removed to the police barracks. “When police have probable cause to conduct a warrantless search of an automobile on the spot where officers encounter the car, they may constitutionally remove the vehicle to police headquarters and there conduct the search without first obtaining a warrant”.
2. In Michigan v. Thomas, the United States Supreme Court held that “when police officers have probable cause to believe there is contraband inside an automobile that is stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody”.
J. In State of New Jersey v. Judge, the Appellate Division found that an odor of burnt marijuana emanating from a vehicle is sufficient to establish probable cause for a warrantless search of the automobile and its occupants.
1. The Court held that “an odor of unburned marijuana creates an inference that marijuana is physically present in the vehicle. An odor of burnt marijuana creates an inference that marijuana is not only physically present in the vehicle, but that some of it has been recently smoked. The suspected marijuana could reasonably have been located in the passenger compartment and/ or on the person of the occupants of the vehicle.” “Therefore, the smell of burnt marijuana alone suggested a breach of the law.”
K. In United States v. Johns, the United States Supreme Court upheld a warrantless search of packages removed from a vehicle that the police had probable cause to believe contained contraband even though the search of the packages did not occur for several days.
1. According to the Court when officers are entitled to seize a package “and continue to have probable cause to believe that it contains contraband…delay in the execution of the warrantless search is not necessarily unreasonable”.
2. In State v. Lugo, the Appellate Division upheld the search of a stolen automobile conducted two days after its impoundment reasoning: “If, as here, the police had the right to conduct a warrantless full search of an automobile at the scene of the arrest, they may lawfully search it anywhere and seize whatever evidence they find”.
L. In State of New Jersey v. Probasco, the Appellate Division ruled that “under both federal and state constitutional standards, information given by an informant whose inherent reliability has not been shown may nevertheless be used to establish probable cause (to search a vehicle) if the informant’s veracity is bolstered by the totality of the circumstances.”
1. If an independent investigation conducted by the police “may be used to bolster the veracity of an informant’s information offered to establish probable cause to obtain a search warrant, such observations, where the circumstances are exigent, may similarly be used to bolster the veracity of an informant’s information to establish probable cause to conduct a warrantless search”.
M. In California v. Carney, the United States Supreme Court ruled the probable-cause based warrantless search of a fully mobile motor home located within a public parking lot to be proper under the automobile exception to the Fourth Amendment written warrant requirement.
1. While ready mobility was clearly the primary basis for the decision in Carroll that established the automobile exception to the written warrant requirement, it is not the only basis for the exception. “Besides the element of ready mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office” Carney
2. Reduced expectations of privacy result not from the fact that the area to be searched is in plain view, “but from the pervasive regulation of vehicles capable of traveling on the public highways”. Citizens are, therefore, fully aware that they are accorded less privacy in their automobiles “because of this compelling governmental need for regulation” Carney
3. The automobile exception to the written warrant requirement will not apply if a motor vehicle is situated in such “a way or place that objectively indicates that it is being used as a residence.” Each of the following factors should be considered in determining whether the vehicle is being used as a residence and therefore, whether a warrant must be obtained before its search:
• The vehicle’s location;
• Whether the vehicle is readily mobile or, instead, elevated on blocks or connected to utilities;
• Whether the vehicle is licensed; and
• Whether the vehicle has convenient access to a public road.
N. In New York v. Class, the United States Supreme Court ruled that in light of the “pervasive governmental regulations of the automobile and the efforts by the Federal Government to ensure that the Vehicle Identification Number (VIN) is placed in plain view, (there is) no reasonable expectation of privacy in the VIN.
1. The Court stated “it is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of the automobile”.
2. In this case, the court reasoned “where the object at issue is an identification number behind the transparent windshield of an automobile driven upon the public roads, the placement of obscuring papers was insufficient to create a privacy interest in the VIN. The mere viewing of the formerly obscured VIN was not, therefore, a violation of the Fourth Amendment.”
3. NOTE – Officers should not conclude from this decision that they are always permitted to enter a vehicle to view a dashboard-mounted VIN from the inside of the vehicle’s passenger compartment. Where the VIN is visible from the outside of the vehicle, there is no justification for the officer to intrude into the passenger compartment to examine it.
IX. Consent
A. As a recognized exception to the Fourth Amendment written warrant requirement, consent will allow police officers to conduct searches without a warrant and without probable
1. “To be voluntary, the consent must be ‘unequivocal and specific’ and ‘freely and intelligently’ given.” Additionally, the “burden of proof is on the State to establish by clear and positive testimony that the consent was so given”. State of New Jersey v. King
B. In order to determine if consent has been voluntarily given or coerced, the court will examine a number of factors.
1. Factors, which may suggest that consent was coerced, include:
• the presence of abusive, overbearing or dictatorial police procedure;
• police use of psychological ploys, or subtle psychological pressure or language, or a tone of voice that suggests that compliance with the request may be compelled;
• statements or acts on the part of the police which convey to the consenting party that he is not free to refuse the search or walk away from the officer;
• that the consent was given by a person already in custody or placed under arrest;
• that consent was obtained despite the consenting party’s denial of guilt;
• that consent was obtained only after the consenting party had refused initial requests for consent to search;
• that consent was given after police blocked or otherwise impaired the consenting party’s progress, or in some other way physically restrained the individual, for example, by the use of handcuffs, by surrounding the individual with uniformed officers, by physically maneuvering the individual in a particular direction, by coercing the individual to move from a public area to a private area or office, or by intimidating use of enforcement canines;
• that consent was obtained only after the investigating officer retained possession of the consenting party’s identification or train, plane or bus ticket; or
• that consent was obtained only after an officer informed the consenting party that if he were innocent, he would cooperate with the police.
2. Factors that may suggest that consent was voluntarily given include:
• that the consenting party was not under arrest or in custody at the time the consent was given;
• that (if in custody) the consenting party’s custodial status was voluntary;
• that consent was given where the consenting party had reason to believe that the police would find no contraband;
• that the consenting party was aware of his right to refuse consent;
• that the consenting party was informed by the police prior to the request for consent of what exactly they were looking for;
• that the consenting party signed a “consent to search” form prior to the search;
• that the consenting party admitted his guilt prior to consenting to the search;
• that the consenting party used his own key to provide police with access to the area to be searched;
• that the consenting party demonstrated a cooperative posture throughout the encounter;
• that the consenting party was not in any way restrained by the police;
• that the consenting party knew the officer conducting the search;
• that the consenting party was educated or intelligent; and
• that the consenting party was no stranger to the criminal justice system.
C. In State of New Jersey v. Johnson, it was also established that in New Jersey, in addition to consent being “unequivocal and specific” and “freely and intelligently given”, there must be a showing that the accused had “knowledge of the right to refuse consent”.
1. The New Jersey Supreme Court held that “ consent contemplates the exercise of a choice, and choice entails the opportunity to evaluate the available options. The right of self-decision is effectively safeguarded if the occupant of the premises knows that the search may be refused. This knowledge may be imputed from information furnished by the police. In the absence of that knowledge a search is unreasonable”.
2. In situations where an officer asks an individual for consent to search a particular area and at the same time advises that he possess or will shortly possess a search warrant, courts have ruled that the consent which follows will be deemed to be coerced.
3. Different considerations may attach when an officer couples his request for consent with an affirmative statement that absent consent a search warrant will be pursued. Provided the officer has the requisite probable cause for acquisition of a search warrant at the time the statement is made, a finding of involuntariness in this instance would be improper.
D. In State of New Jersey v. Carty, the New Jersey Supreme Court ruled that “law enforcement officers must have a reasonable and articulable suspicion of criminal wrongdoing prior to seeking consent to search a lawfully stopped motor vehicle.”
1. The Court relied upon the protections afforded under the New Jersey Constitution in issuing this ruling, and expressed an interest in ”preventing the police from turning routine traffic stops into a fishing expedition for criminal activity unrelated to the lawful stop”.
2. The scope of this ruling includes vehicles and all of the vehicle’s occupants.
E. In Ohio v. Robinette, the United States Supreme Court held that there is no requirement under the Fourth Amendment that police, during the course of a motor vehicle stop or other investigative detention, advise the person detained that he or she is “free to go” before a consent to search may be lawfully obtained.
F. In Illinois v. Rodriguez, the United States Supreme Court ruled that the Constitution is not violated “when officers enter (a residence) without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises,” or has common authority over the premises.
1. “as with other factual determinations bearing upon search and seizure, determination of consent…must be judged against an objective standard: would the facts available to the officer at the moment…’warrant a man of reasonable caution in the belief’ that the consenting party had authority over the premises?…If not, then the warrantless entry is unlawful unless authority actually exists. But if so, the search is valid”. Rodriguez
2. “A warrantless entry and search by law enforcement officers does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures if the officers have obtained the consent of a third party who possesses common authority over the premises”. Rodriguez
3. In United States v. Matlock, the Court held that “common authority rests on mutual use of the property by persons generally having joint access or control for most purposes and the burden of establishing that common authority rests upon the State”.
4. Generally, a landlord does not have the authority to consent to a search of a tenant’s premises. Chapman v. United States; State of New Jersey v. Coyle
• Before a court may reasonably conclude that a landlord has authority to consent to a search of a tenant’s premises, the usual indicators of “common authority” must be closely analyzed, not merely from a property interest standpoint, but by a focused inquiry into whether the landlord enjoys “mutual use” of the entire property and maintains “joint access or control” over the tenant’s portion of the premises “for most purposes”.
G. In State of New Jersey v. Douglas, the Appellate Division ruled “as to the particular circumstances concerning the consent by a parent to search the room of a child residing in the parent’s home, the overwhelming majority of the cases uphold the right of the parent to consent to a search of the son or daughter’s room”.
1. “The consent to a warrantless search by a parent for evidence to be used against the child is based upon the parent’s authority as head of the household or owner of the property, as an exercise of parental authority over the minor, or as a co-tenant or common resident”. Douglas
H. In State of New Jersey v. Younger, the Appellate Division decided a case concerning consent to search for a weapon in a domestic violence case and the permissible scope of the search.
1. The limitations on the scope of a consent search ordinarily “arises by implication from the fact that the police usually indicate that the consent is being sought for a particular purpose. When a purpose is included in the request, then the consent should be considered as authorizing only that intensity of police activity necessary to accomplish the stated purpose”
2. The court also identified a second limitation on the scope of the consent and held as a matter of law that “the authority of the owner of a premises to consent to a search of a portion thereof occupied by another does not extend to the possessions of the occupier that are not in plain view—and clearly not to closed luggage or other containers.
3. “The authority granted by the Domestic Violence Act does not constitute a license for the officer to conduct a general and intensive search beyond what is reasonable to locate the weapon the officer believes is on the premises.” Younger
I. In State of New Jersey v. Maristany, the New Jersey Supreme Court held that “absent evidence that a driver’s control over the car is limited, a driver has the authority to consent to a complete search of the vehicle, including the trunk, glove compartment and other areas.
1. However, “a driver’s consent to search a car does not extend to containers in which the driver has disclaimed ownership” “In addition, a driver may not consent to a search of another’s private property contained within the car” Maristany
2. In situations where officers are seeking consent to search one or more pieces of luggage in an automobile containing more than one occupant, the officer shall attempt to determine which occupant owns each piece of luggage, so that the officer’s reliance on consent may be justifiable.
J. In Florida v. Jimeno, the United States Supreme Court held that “the scope of a search is generally defined by its expressed objective”.
1. In Jimeno, the officer requested consent to search Jimeno’s car and informed Jimeno that he suspected Jimeno was carrying narcotics. It was, therefore, “objectively reasonable for the police to conclude that the general consent to search (Jimeno’s) car included consent to search containers within that car which might bear drugs”.
X. Privacy Expectations
A. At the federal level, police conduct will only implicate the Fourth Amendment if it intrudes into an area (or significantly interferes with the possession of an item) in which an individual has “manifested a subjective expectation of privacy…that society accepts as objectively reasonable”. California v. Greenwood
1. Thus a two-part inquiry is necessary where the court questions:
• Whether an individual has exhibited an actual or subjective expectation of privacy in the area or item in question; and
• Whether the expectation of privacy is one that society is prepared to recognize as reasonable.
B. At the state level, the New Jersey Supreme Court determined that it would not follow the federal two-part requirement because a defendant’s actual (subjective) expectation of privacy does not determine the New Jersey Constitution’s restraint on the State’s power to search and seize. “A one-step test better reflects the principles of search and seizure law.” State of New Jersey v. Hempele
1. The Court determined that the New Jersey Constitution requires only that an expectation of privacy be reasonable.
2. The Hempele Court emphasized: Article I, paragraph 7 (of the New Jersey Constitution) does not “ask what we expect of government. It tells us what we should demand of government”…”The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” when there can be a reasonable expectation of privacy in them.
C. In Katz v. United States, the United States Supreme Court stated, “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection…But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
1. In Katz, the Court held “conversations carried on anywhere in a tone of voice audible to the unaided ear of a person located in a place where that person has a right to be, and where a person can be expected to be, are conversations knowingly exposed to the public and are not afforded Fourth Amendment protection.
2. In State of New Jersey v. Constantino, the Law Division held that the defendant retained no reasonable expectation of privacy in his telephone conversation which took place on a public pay phone attached to a post on a public sidewalk, when he spoke in a tone of voice clearly audible to persons, including a police officer standing nearby.
D. In Doe v. Poritz the New Jersey Supreme Court held that a person has no expectation of privacy in his appearance or fingerprints since they are constantly exposed to the public view. Accordingly, requiring a Megan’s Law registrant to submit to photographing and fingerprinting does not implicate any privacy interest.
E. In U.S. v. Dioniso the United States Supreme Court held that the physical characteristics of a person’s voice, it’s tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public so that no person can have a reasonable expectation of privacy that others will not know the sound of his voice.
1. In a companion case (U.S. v. Mara), the Court reached the same conclusion regarding a person’s handwriting.
F. In Wilson v. Layne, the United States Supreme Court held that it is a violation of the Fourth Amendment for police to bring officers of the media or other third parties into a home during the execution of a search warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.
G. In Kyllo v. united States, the Supreme Court held the use of a thermal imaging device, aimed at a home to detect relative amounts of heat in the home, constituted a search within the meaning of the Fourth Amendment.
H. In State of New Jersey v. Bates, the Appellate Division ruled that the visual inspection of the soles of a person’s shoes made during an investigative detention did not constitute a “search” subject to constitutional considerations.
1. The Bates Court stated “the soles of a person’s shoes, and especially the pattern on the soles…are constantly exposed for public view, such as when we kneel to pray, when we lift our feet to walk or run, when we cross our legs or prop them up on a table or chair, when we remove our shoes and leave them idly on the floor, or as in the present case, when we leave foot prints in the mud or dirt.”
I. In United States v. Dickens and United States v. Acosta, the 3rd Circuit Court of Appeals ruled that defendants have no expectation of privacy in the common areas, a stairwell and hallway respectively, of an apartment building.
1. In State of New Jersey v. Brown, the Appellate Division held that “a tenant does not have a reasonable expectation of privacy in the common areas of a building merely because doors to the common areas are normally kept locked and require a key for access”.
J. In State of New Jersey v. Lugo, the Appellate Division held that “ a defendant operating an automobile known by him to have been stolen has no reasonable expectation of privacy respecting contraband he had hidden in it—no matter how the contraband is packaged.”
K. In State of New Jersey v. Evers, the New Jersey Supreme Court ruled a defendant clearly had no reasonable expectation of privacy in the content of e-mail (containing child pornography) he forwarded to fifty-one intended recipients, one of whom happened to be an undercover police officer.
1. The Court commented, “What a person knowingly exposes to the public…is not a subject of Fourth Amendment protection.”
2. If situations such as this, if a third party recipient discloses the information to the government, the sender will have no Fourth Amendment claim.
L. In State of New Jersey v. Lewis, the Appellate Division ruled that a random computer check of a motor vehicle license plate number was not a violation of the vehicle operator’s constitutional rights under the Federal or State Constitutions.
1. The court referred to the ruling in State of New Jersey v. Myrick, where that court held “inasmuch as the license plates on a motor vehicle are exposed to public view, the visual inspection of the plate number and subsequent computer check of the information pertaining to those plates do not intrude on the legitimate privacy interests of the owner of the vehicle or a passenger”.
2. It should be noted that the officer in Lewis did not conduct a motor vehicle stop until after having observed the operator of the vehicle in question and confirming that such operator fit the general description provided by DMV files for the registered owner whose license was suspended.
3. In State of New Jersey v. Parks, the Appellate Division held that a computerized lookup of the records from the Division of Motor Vehicles is not an unconstitutional intrusion of privacy “because vehicle license plates are openly displayed and the records are public”. Thus, the random use of a mobile data terminal to obtain such information “does not interfere with a driver’s reasonable expectation of privacy and does not constitute an unreasonable seizure of either the driver or his official records.”
4. In State of New Jersey v. Donis, the New Jersey Supreme Court held that “personal information (name, date of birth, social security number, address) on file with the NJDMV is not to be routinely received by law enforcement as a result of a random mobile data terminal computerized inquiry.
• A random inquiry is one in which a reason for the inquiry cannot be articulated; the inquiry was suspicionless in nature. This regulation does NOT apply to vehicles registered out of state.
• A full disclosure query is one in which articulable cause to stop the vehicle, or otherwise obtain the full vehicle and owner’s information exists.
• When accessing information in connection with a random inquiry, the officer is required to utilize the Random Query function on the MCT.
XI. Open Fields
A. In Hester v. United States, the United States Supreme Court established the “open fields” doctrine that authorizes law enforcement officers to enter and search an “open” field without a warrant. The Court explained that the special and unique safeguards provided by the Fourth Amendment to the people in their “persons, houses, papers and effects” is not extended to open fields. Open fields are not “houses” nor may they be considered “effects”.
B. In Oliver v. United States, the United States Supreme Court ruled that law enforcement officers do not need a search warrant or probable cause to conduct a search of a field which is not only in a secluded area, but fenced in with locked gates and “No Trespassing” signs posted at regular intervals.
1. In Oliver, the Court referred to the rule established in Hester that states, “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.”
2. This “curtilage”, as part of the “home” is not only separate, but distinguished from neighboring open fields. “Open fields do not provide the setting for those intimate activities that the Fourth Amendment is intended to shelter from government interference or surveillance.”
3. The Fourth Amendment protects the “curtilage” of a house and the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.”
C. In United States v. Dunn, the United States Supreme Court addressed the extent of the “curtilage” and held the central component of the inquiry should be “whether the area harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life”.
1. The Court identified four factors that should be considered to resolve curtilage inquiries:
• The proximity of the area claimed to be curtilage to the home,
• Whether the area is included within an enclosure surrounding the home,
• The nature of the uses to which the area is put, and
• The steps taken by the resident to protect the area from observation by people passing by.
2. The Court also indicated “the term ‘open fields’ may include any unoccupied or under-developed area outside of the curtilage. An open field need not be ‘open’ nor a ‘field’ as those terms are used in common speech”.
XII. Plain View
A. The “plain view” doctrine as established in Coolidge v. New Hampshire and later modified in Texas v. Brown authorizes law enforcement officers to seize evidence of a crime, contraband, or other items subject to official seizure without first obtaining a search warrant provided that the officer has a prior constitutional justification for an intrusion into the individual’s realm of privacy, and in the course thereof discovers a piece of incriminating evidence.
1. In Horton v. California, the United States Supreme Court stated “if an article is already in plain view, neither its observation or its seizure would involve any invasion of privacy.”
2. In order to invoke the plain view doctrine, two requirements must be met:
• The officer must be lawfully in the viewing area; that is, officers may not violate the Constitution in arriving at the place from which the evidence could be plainly viewed; and
• The officer must have probable cause to believe the evidence is somehow associated with criminal activity.
3. In Arizona v. Hicks, the United States Supreme Court reinforced the principle that probable cause to believe that an item is evidence of a crime, contraband or otherwise subject to official seizure is a necessary element when invoking the “plain view” doctrine.
• In this case the officers possessed only reasonable suspicion to believe that the items searched and seized were evidence of a crime. As a result, the evidence was ultimately suppressed.
C. In Washington v. Chrisman, the United States Supreme Court ruled that once an officer has effected a valid arrest of an individual, it is within that officer’s authority to maintain custody and control over the arrestee and monitor his movements. Therefore, if the arrestee requests to go into his home, the officer has a right to remain literally at the arrestee’s elbow, and may seize any contraband discovered there in plain view.
1. The monitoring of arrestee movement must, however, be conducted in an objectively reasonable fashion. For example, police cannot use this rule ‘to lead the accused from place to place and attempt to use his presence in each location to justify a search’…an officer cannot direct an arrested individual to go to another area without a legitimate reason grounded in the safety of the police or the public.”
C. In State of New Jersey v. Bruzzese, the New Jersey Supreme Court identified the standard for assessing the constitutionality of searches and seizures as “objective reasonableness”.
1. “In making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?”
D. Under Federal law, the United States Supreme Court ruled, “even though inadvertence is a characteristic of most legitimate ‘plain view’ seizures, it is not a necessary condition”. (Horton v. California)
1. Under New Jersey Law, the Appellate Division addressed the “inadvertent” requirement of the plain view doctrine and stated, “the purpose of the inadvertence requirement is to ensure that a plain view seizure will not turn an initially valid (and therefore limited) search into a general one”. (State v. Damplias)
• In order to determine whether the inadvertent requirement has been satisfied, two questions must be considered:
o Did the police know in advance where the evidence was located?
o Did the police intend beforehand to seize the evidence?
• If the answer to both questions is yes, then the inadvertent requirement is not satisfied, and the seizure under the plain view doctrine is invalid. However, if the answer to the first question is yes, but the answer to the second question is no, the inadvertent requirement is still satisfied because the purpose of the requirement is to prevent warrantless pretextual searches and seizures.
• Note – In State v. Damplias the Appellate Division determined that the plain view seizure in that particular case was “inadvertent”. Since the seizure was inadvertent there was no violation of the plain view doctrine. Consequently the Court did not need to decide whether to follow the United States Supreme Court decision in Horton v. California, where the US Supreme Court held that inadvertence was no longer a necessary condition for a plain view seizure under Federal Law.
E. In Minnesota v. Dickerson, the United States Supreme Court adopted what most state and federal courts have recognized as the “plain touch” or “plain feel” corollary to the plain view doctrine.
1. In the landmark decision of Terry v. Ohio, the United States Supreme Court held that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity might be afoot” the officer may briefly stop the suspicious person and make “reasonable inquiries” aimed at confirming or dispelling his suspicions…”When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” the officer may conduct a patdown search “to determine whether the person is in fact carrying a weapon”
2. In Dickerson, the Court held that “if a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that (exist) in the plain view context”.
3. The Court emphasized that an officer may seize contraband detected during a Terry patdown search provided the officer’s search stays within the bounds set by Terry.
4. Consistent with the plain view doctrine, before an officer may invoke the “plain touch” doctrine, the government bears the burden of establishing three requirements:
• The officer must be lawfully in the touching area.
• The officer must have some independent constitutional justification for placing his or her hands on the property or person in question.
• Upon touching the area in question, the officer must, through the process of tactile recognition, garner probable cause to believe the object, which he or she is touching, constitutes evidence of a crime, contraband or is otherwise subject to official seizure.
F. In United States v. Williams, the court emphasized that the “tactile” recognition of the item as contraband must occur contemporaneously with the touching.
1. Essentially, the court has ruled that any touching of a item or container must only last as long as would be necessary under Terry to complete a patdown search for weapons and officers are not permitted to fondle or otherwise manipulate an item or a container beyond the extent justified by the patdown search for weapons.
2. The knowledge of the item or contents of the container must be coincidental with the lawful touching.
3. In State of New Jersey v. Jackson, the Appellate Division suppressed evidence when the officer involved testified that during the course of a Terry patdown search he discovered a bulge in the defendant’s jacket. The officer indicated he knew it was not a weapon but could not otherwise identify the item. Upon removing the item from the defendant’s jacket, he discovered it was fifteen small bags of cocaine.
• In this case the court reasoned: once the officer determined that the object in the defendant’s pocket was not a weapon and could not identify the object as contraband, the search went “beyond what was necessary to determine if the suspect was armed” and therefore beyond the boundaries of Terry.
G. In California v. Ciraolo, the United States Supreme Court ruled that no Fourth Amendment violation occurred when a warrantless naked-eye aerial observation, at an altitude of 1,000 feet, of marijuana plants growing in a person’s fenced-in backyard and within the curtilage of his home was conducted by police officers.
1. The Court held that the defendant in this case did not have a “constitutionally protected reasonable expectation of privacy” associated with the marijuana plants even though they were within the curtilage of the home.
2. The Court held that “in an age where private and commercial flight in the public airways is routine, it is unreasonable for (a person) to expect that his marijuana plants (growing in his fenced-in backyard curtilage) were constitutionally protected from being observed with the naked eye from an altitude of 1,000 feet. The Fourth Amendment simply does not require the police traveling the public airways at this altitude to obtain a warrant to observe what is visible with the naked eye.”
H. In State of New Jersey v. Fuhs, the Appellate Division determined that the warrantless use of binoculars by a police officer to observe objects not readily visible to the naked eye does not constitute an unreasonable search under the Fourth Amendment.
1. The court stated: in an age where the possession and use of binoculars by the average citizen, as well as the police, is so common, it is unreasonable for property owners to expect that objects within their curtilage not shielded by a fence or other barrier will not be observed by persons passing their home on the road or sidewalk. “The use of aids such as binoculars does not convert the unobjectionable surveillance into an prohibited search”.
I. In Florida v. Riley, the United States Supreme Court referred to its decision in California v. Ciraolo when it held that the surveillance of the interior of a partially covered greenhouse in a residential backyard from the vantage point of a helicopter located 400 feet above the greenhouse does not constitute a search for which a warrant is required, and as a result, does not violate the Fourth Amendment.
XIII. Abandonment
A. When a person abandons property, he also relinquishes his right to an expectation of privacy in that property and a law enforcement officer may then search and/ or seize the property without probable cause.
1. The United States Supreme Court noted there is “no seizure in the sense of law when law enforcement officers examine the contents of personal property after it has been abandoned”. Hester v. United States
2. New Jersey defines abandonment as “the voluntary relinquishment of all right, title, claim and possession, with the intention of not reclaiming it.” State of New Jersey v. Farinich
• New Jersey courts will then rule that a person has abandoned property when “he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search”. State of New Jersey v. Farinich
B. While the United States Supreme Court held that Fourth Amendment does not prohibit a warrantless search and seizure of garbage left for collection outside the curtilage of one’s home (California v. Greenwood), the New Jersey Supreme Court ruled that law enforcement officers need “no cause” to seize opaque garbage bags left on the curb for collection, however, officers must secure a search warrant based upon probable cause before they may validly search the bags contents (State of New Jersey v. Hempele).
XIV. Non-Governmental Searches
A. The principles of the Fourth Amendment and Article I paragraph 7 of the New Jersey Constitution relating to search and seizure do not apply to private action. Over time they have been consistently interpreted to prohibit only unreasonable government actions; and are “wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official”.
B. In Skinner v. Railway Labor Executives Ass’n, the United States Supreme Court stated “whether a private party should be deemed an agent or instrument of the Government for constitutional purposes necessarily turns on the degree of the Government’s participation in the private party’s activities…a question that can only be resolved ‘in light of all the circumstances’”.
C. In State of New Jersey v. Sanders, the Appellate Division defined the circumstances that would convert a private person into a “police agent” as follows:
1. If the police instigate, encourage, or foster the search;
2. If there is joint participation between private parties and police officers;
3. If the police have significantly involved themselves in the search; or
4. If the police have preknowledge of the private individual’s expressed intent to conduct a search or seizure, and acquiesce in its effectuation.
• If an unlawful private search is conducted with any of the aforementioned relationships existing between the police and the private person(s) effecting the search or seizure, the Fourth Amendment’s Exclusionary Rule will bar the admissibility of any evidence obtained.
• On the other hand, if it is found that the police had no significant connection with the private search or seizure, or any knowledge of it until after the fact, the evidence delivered to them may be admitted.
D. Police officers may not however expand the scope of the initial private search and any evidence seized as a result of such expansion of the search will be subject to suppression, as the third party intervention exception no longer applies to the fruits of the expanded search.
State of New Jersey v. Saez – Appellate Division
XV. Regulatory and Administrative Searches
A. In New Jersey v. T.L.O., the United States Supreme Court held that “in carrying out searches and other disciplinary functions pursuant to (publicly mandated educational and disciplinary) policies, (public) school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment”.
1. In this case, the Court established new standards for searches conducted by public school officials in the public school environment. In doing so, it balanced the student’s legitimate expectation of privacy and personal security against such public school needs as maintaining discipline and order in the classrooms and on school grounds, and preservation of the educational atmosphere.
• First, public school officials are not subject to the warrant requirement. Requiring a warrant would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in schools.
• Second, the level of suspicion applicable to public school officials has been reduced from probable cause to a standard, which turns simply on the reasonableness, under all of the circumstances, of the search.
o Reasonableness will be assessed by a two fold inquiry: first, one must consider whether the action was justified at its inception; and second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.
• The Court also held that “under ordinary circumstances, a search of a student by a teacher or other school official will be ‘justified at its inception ‘ when there are reasonable grounds for suspecting that a search will turn up evidence that the student has violated or is violating either the law or the rules of the school”.
B. In Desilets v. Clearview Bd. of Ed., the Appellate Division ruled lawful, a policy of searching the hand luggage of all students taking part in voluntary and recreational field trips.
1. The court stated “the deterrent effect of the board’s search policy advances the legitimate interests of the school administrators in preventing students from taking contraband, in the broadest sense of the word, on field trips.”
C. In United States v. Ortega, the United States Supreme Court held “searches and seizures by government employers or supervisors of private property of their employees…are subject to the restraints of the Fourth Amendment, but neither a search warrant nor probable cause is necessary to constitutionally search their employees’ workplace”
1. ‘Workplace’ in this context includes “those areas and items that are related to work and are generally within the employer’s control.
2. “Public employees’ expectations of privacy in their offices, desks, and file cabinets like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.”
3. “Ordinarily, a search of an employee’s office by a supervisor will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose such as to retrieve a needed file. The search will be permissible in scope when ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of…the nature of the misconduct.”
D. In Rawlings v. Police Dept. of Jersey City, the New Jersey Supreme Court held that a police officer is in a “safety sensitive” position, and may be subjected to drug testing on the basis of individualized (reasonable) suspicion that the officer may have used illegal drugs.
1. Additionally, “dismissal is appropriate for a police officer who refuses to submit to a drug test when his or her supervisor has a reasonable suspicion (that the officer) has used illegal drugs”.
E. In NJ Transit PBA Local 304 v. NJ Transit Corp., the New Jersey Supreme Court ruled that a policy requiring random drug testing for police officer does not violate the New Jersey Constitution as it relates to the officers right to be free from unreasonable searches and seizures.
1. Considering “the transit police officer’s decreased expectation of privacy, the adequate limitations on the intrusiveness of the testing, and the compelling state interest in promoting safe conduct among armed officers, the random drug testing policy…is constitutional under Article I, paragraph 7 of the New Jersey Constitution.”
1. The Court focused on the area of law that permits administrative searches of highly or pervasively regulated industries without probable cause or individualized suspicion. The Court elaborated: “the pervasively regulated industry exception to the warrant requirement has generally been applied to businesses that have a ‘long tradition of close government supervision’…Both the federal courts and our New Jersey courts have found that persons who engage in industries ‘subject to close supervision and inspection’ have a diminished expectation of privacy.”
XVI. Fire Scenes
A. In Michigan v. Tyler, the United States Supreme Court stated “ a burning building clearly presents an exigency of sufficient proportions to render a warrantless entry reasonable.” Indeed it would defy reason to suppose that firemen must secure a warrant or consent before entering a burning structure to put out the blaze.
1. “Once inside the building, if evidence of arson is discovered, it is seizable and admissible at trial. If however, the investigating fire officials during this time period “find probable cause to believe that arson has occurred and require further access to gather evidence for a possible prosecution, they must obtain a warrant…upon a traditional showing of probable cause applicable to searches for evidence of a crime”.
2. These decisions indicate that fire officials do not need a “warrant to remain in a building for a reasonable amount of time to investigate the cause of the blaze after it has been extinguished”.
3. Additionally, in this case the Court ruled that the warrantless entry and seizure of evidence by fire and police officials that took place four hours after all fire and police officials had initially departed the scene “were no more than an actual continuation of the first (entry) and the lack of a warrant thus did not invalidate the resulting seizure of evidence.”
B. Generally, whenever a fire official wishes to re-enter a “cold” fire scene in the absence of consent, exigent circumstances, or complete devastation or destruction, a warrant is required.
1. A “cold fire scene” may be described as an area containing property that has been freshly fire-damaged, existing at a time when the fire has been completely extinguished and all fire and police personnel have departed.
2. Entries of a cold fire scene have been ruled as beyond the “reasonable time to investigate the cause of a blaze after it has been extinguished,” in the absence of consent, exigent circumstances or total devastation. Michigan v. Tyler
C. There are two types of warrants available to the investigating fire official and the “object of the search determines the type of warrant required” Michigan v. Clifford
1. If the fire official’s prime objective is to determine the cause and origin of a recent fire, an “administrative warrant” must be obtained.
• Probable cause to issue an administrative warrant exists if reasonable legislative, administrative, or judicially prescribed standards for conducting an inspection are satisfied with respect to a particular dwelling.
• The fire official must personally appear before a judge who will examine the fire official’s sworn affidavit or take sworn testimony. The fire official must show that:
o A fire of “undetermined origin has occurred on the premises”.
o The “scope of the proposed search is reasonable”.
o The “search will not intrude unnecessarily on the fire victim’s privacy”, and
o The “search will be executed at a reasonable and convenient time”.
2. If the fire official’s (or police officer’s) prime objective is to gather evidence of criminal activity, e.g., arson, a “criminal search warrant” must be secured.
D. In Michigan v. Tyler, the United States Supreme Court held that “where the cause of a fire is undetermined, and the purpose of the investigation is to determine the cause and to prevent such fires from occurring or recurring, a…search may be conducted pursuant to a warrant issued in accordance with reasonable legislative or administrative standards or, absent their promulgation, judicially prescribed standards; if evidence of wrongdoing is discovered, it may, of course, be used to establish probable cause for the issuance of a criminal investigative search warrant or in prosecution. But if the authorities are seeking evidence to be used in a criminal prosecution, the usual standard of probable cause will apply.
XVII. Consent Search Procedures
A. Under State v. Carty, consent searches of a lawfully stopped motor vehicle are NOT valid unless there is a reasonable and articulable suspicion to believe that the motorist or passenger has engaged in, or is about to engage in criminal activity.
B. Officers seeking to obtain the consent of a person to search an item, object or area that would be otherwise constitutionally protected by the Fourth Amendment shall obtain the consent in writing on the proscribed Consent to Search Form, unless sufficient exigent circumstances exist to render this requirement unreasonable.
1. All applicable areas of the Consent to Search Form must be completed and the officer requesting consent is required to read the entire form to the person from whom the consent is being requested.
C. A person who consents to a search by an officer waives the right to be free from a search without a warrant. However, unless the officer informs the suspect that there is a right to refuse to consent to such request, his assent to the search is invalid.
D. The person’s consent must be clear, unequivocal, intelligent and voluntary. This is the underlying basis for requiring a written consent.
1. In certain limited situations involving legitimate exigent circumstances, officers may conduct a consent search upon verbal consent from the person authorized to consent, however, searches conducted pursuant to verbal consent shall be carefully reviewed to ensure the exigency is sufficient to justify such action.
E. Officers requesting consent shall be careful to avoid the appearance of coercion in obtaining such consent.
1. When requesting consent from an authorized person, officers shall not indicate they have or will momentarily have a search warrant as consent thereafter given will be ruled invalid due to coercion.
F. When requesting consent to search, officers shall exercise certain precautions to minimize the likelihood of an individual claiming coercion, as follows:
1. Limit the number of police officers present to the amount necessary to ensure officer safety. A minimum of one (1) additional officer should be present to serve as a witness to the consent in the event of a future challenge.
2. Avoid unnecessary display of weapons and formulate the request in words that would genuinely indicate a “request” as opposed to a “command”.
G. Permission to enter is not permission to search and consent to search must be independently requested and specifically given.
H. An individual with custody of personal property belonging to another cannot consent to its search unless he has been given full control over the property. Consent by a person having only limited custody and control, such as for storage or shipment, is not valid.
I. Consent to search may be withdrawn at any time prior to or during the search. If a consent search results in the discovery of a seizable item before consent is withdrawn, the item shall be considered legally seized and will be admissible in a prosecution.
1. The moment consent is withdrawn, the officer conducting the search must honor the withdraw of consent and immediately cease searching activities.
2. The search may only continue if another exception to the warrant requirement exists or if authorized by a search warrant.
XVIII. Vehicle Search Procedures
A. There are five (5) instances when a warrantless search of an automobile may be permitted:
1. Following a motor vehicle stop
• The driver may be asked to exit the vehicle for the officer’s protection. Passengers may be asked to exit only where the officer can point to specific and articulable facts that would warrant heightened caution.
• A limited search of persons and the vehicle may be performed when:
o Appearance or conduct of passengers suggests a weapon is present. An officer may perform a pat down of occupants and/ or a limited search of the area in which the officer observed attempts to hide something where the officer has subjective fear for safety which is objectively reasonable.
o The operator of the vehicle cannot produce a registration. This authority to search is limited to the areas in a vehicle where the credentials could normally be found, i.e., glove compartment, console, sun visor, under floor mats.
• Plain view/ plain smell observation of suspected contraband.
o Contraband visible from outside the vehicle may be seized.
o The trunk may be searched when evidence suggests CDS may be present in the trunk.
o The odor of marijuana alone; raw, unburned or burned does constitute probable cause for a search.
▪ This should not be read as authorizing full vehicle searches, including the trunk, when the smell of burnt marijuana is present.
▪ Absent some additional evidence that a larger amount of marijuana may be present in the trunk, the scope of a warrantless search (justified by the odor of burnt marijuana emanating from the vehicle) should be limited to the passenger compartment of the automobile.
• An officer makes a custodial arrest of a vehicle operator for a violation of N.J.S. 39:4-50 (driving while intoxicated) or N.J.S. 39:4-49.1 (operating a motor vehicle while possessing controlled dangerous substances)
o Police may not always conduct an automatic search of the passenger of a vehicle incident to an arrest for a Title 39 violation.
o When an officer makes a custodial arrest of an occupant of a vehicle for a routine Title 39 offense, he may conduct a contemporaneous search of the area in the arrestee’s immediate control ONLY IF the arrestee remains in or adjacent to the vehicle after arrest.
2. Where probable cause exists to believe that an automobile contains contraband or evidence of a crime.
3. When an officer effects a lawful custodial arrest of an occupant of a motor vehicle, for other than a motor vehicle violation, the officer may conduct a contemporaneous search of the passenger compartment of the automobile including any open or closed containers located therein.
4. Pursuant to valid consent by the owner or operator of a vehicle, provided the operator has the authority to consent to the search.
5. Lawful inventory of a motor vehicle. See written directive V7C17 – Towing, Impound and Inventory of Motor Vehicles.
B. Whenever any officer of the patrol or traffic bureaus intends to search a motor vehicle, the officer shall first contact the shift supervisor to obtain authorization for the search.
1. Due to the complexity of search and seizure issues, a supervisor shall immediately respond to the search location to oversee the search.
2. If there is no supervisor available to respond, the shift supervisor receiving the request shall evaluate the circumstances and determine the appropriateness of the search, issuing authorization only in circumstances that clearly support such action.
XIX. “Seizure” Explored
A. The standard to be applied under the New Jersey Constitution to determine when a person has been “seized” is whether by means of physical force or a show of authority the person’s freedom of movement was restrained and whether in view of all the circumstances a reasonable person would have believed that he or she was not free to leave.
1. The police practice of boarding stopped passenger buses, approaching seated passengers, asking them questions, and requesting consent to search their luggage may result in a seizure if the courts determine that a reasonable person would not have felt free to decline the officers requests or otherwise terminate the encounter.
2. In State v. Tucker, the New Jersey Supreme Court held that a person’s flight upon seeing police without any other evidence of criminality does not justify a police chase of that subject and that such chase constituted an illegal seizure requiring suppression of evidence thrown away by the suspect after the chase began.
B. The police may seize a container pending issuance of a search warrant to examine its contents if:
1. There is probable cause to believe that it is contraband or evidence of a crime if exigent circumstances demand it or some other exception to the written warranty requirement is present, OR
2. The police have a particularized and objective basis for suspecting that the container contains contraband or evidence of a crime.
• In other words, the principles of Terry v. Ohio are applicable to permit investigative seizures of containers on the basis of reasonable articulable suspicion premised on objective facts that the container contains contraband or evidence of a crime.
• The seizure allows officers to safeguard the container while a search warrant can be obtained.
C. N.J.S.A. 2C:64-1.b authorizes the police to conduct a warrantless seizure of the following articles, provided the seizure does not violate the Constitution of this State or the United States:
1. Prima facie contraband, which includes:
• Controlled dangerous substances.
• Firearms that are illegally possessed, carried, acquired or used.
• Illegally possessed gambling devices.
• Untaxed cigarettes.
• Untaxed special fuel.
2. Property that poses an immediate threat to the public health, safety or welfare.
XX. Reporting Requirements
A. For every search, other than a search incident to a lawful arrest, the officer conducting the search shall be required to complete and submit a Search-Frisk Report. The report shall be forwarded to the internal affairs supervisor through the established chain of command.
B. All items seized as a result of any search conducted by officers shall be fully described on a Property Description Report as set forth in the written directive governing Evidence Procedures.
C. As provided for in the written directive governing Motor Vehicle Stops, all vehicles searches shall be reported to the dispatcher at central communications in order to facilitate an entry into the computerized record for the incident. In addition, all members will request the dispatcher to create an “incident” number for the search and the incident number shall be included on the Search-Frisk Report.
-----------------------
Standard
1.2.4.a
Standard
1.2.4.c
Standard
1.2.4.e
Standard
1.2.4.f
Standard
1.2.4.g
Standard
1.2.4.g
................
................
In order to avoid copyright disputes, this page is only a partial summary.
To fulfill the demand for quickly locating and searching documents.
It is intelligent file search solution for home and business.
Related download
- basic speed law questions free dmv test
- new life driver s exam study guide
- permit test nj questions and answers
- nj dmv practice test 50 questions bing
- dmv permit test cheat sheet practice and pass the dmv
- dmvquestion and answers right way driving
- 50 free dmv written test sample questions for
- new jersey permit test flash cards
- torts in prep of midterm webs
- community assessment 2007
Related searches
- stock price by date lookup
- effective at or effective in
- date to date time calculator
- subtract today s date from another date excel
- date to date duration calculator
- date from a date calculator
- calendar date to date calculator
- effective date of npi number
- from date to date calculator
- character date to numeric date sas
- convert character date to numeric date sas
- date to date duration calendar