EFFECTIVE DATE: - NJSACOP



EFFECTIVE DATE: |GENERAL ORDER # 037 | |

|SUBJECT: ARREST PROCEDURES |

|ISSUED BY: |# OF PAGES: 14 |

|DISTRIBUTION: |REVIEW DATE: |

|LAST REVISED: |

|ACCREDITATION STANDARDS: |

PURPOSE: To enhance the effectiveness of the department, minimize liability and safeguard individual rights by providing guidance to all officers on issues related to arrest situations and by illustrating the procedures to be followed during such activities.

POLICY: The authority to restrict an individual’s liberty of movement for a period of time is an awesome responsibility that requires officers to draw upon their training and experience, and exercise sound judgment in an effort to arrive at a morally justified and lawful decision. Officers are instructed to apply the principles of prevailing laws, legal decisions and constitutional considerations to the decision making process associated with arrest decisions.

PROCEDURE:

I. Definitions

A. Arrest: the exercise of control or custody over a person by restricting that person’s liberty of movement for a significant period of time. Arrests can be made “actually” or “constructively”.

1. An actual arrest occurs when an officer intentionally employs physical force and delivers a formal communication of his intention (“you are under arrest”).

2. A constructive arrest occurs without an intentional use of force and without a formal statement indicating an intention to take the person into custody.

3. In order to determine if an arrest has occurred, the relative inquiry will be whether, in view of the totality of the circumstances surrounding the police-citizen encounter “a reasonable person would have believed that he was not free to leave”.

B. Probable Cause to Arrest: when the facts and circumstances within the involved officer’s knowledge are sufficient to permit a prudent person, or one of reasonable caution, to conclude that there is a fair probability that a criminal offense is being or has been committed and the person to be arrested is or has been a criminal participant.

II. Prerequisites for Arrest

A. An officer may effect an arrest under the following conditions:

1. The officer has a valid, judicially authorized warrant for the person to be arrested.

2. The officer has probable cause to believe the person to be arrested has committed a crime as defined by New Jersey statutes.

3. The person to be arrested commits a crime, disorderly person’s offense or petty disorderly person’s offense in the officer’s “presence”.

• “Presence” is a concept that is easily understandable, and for the purpose of the law of arrest, it includes situations where the arresting officer uses any of his senses to determine an offense has been committed.

• An admission of guilt is considered the equivalent of “in the officer’s presence” for the purpose of arrest law.

• This exception does not extend to municipal ordinance violations and as such, no arrest shall be made for a municipal ordinance violation committed in an officer’s presence unless such violation involves a “breach of the peace”.

4. By statute, certain non-indictable offenses expose individuals to arrest without a warrant regardless of the fact that the offense did not occur within the officer’s presence. The arrest must however be supported by probable cause. Below is a list of such offenses:

• Shoplifting

• Theft of library materials

• Domestic violence

• Driving while intoxicated

III. Probable Cause

A. Any arrest made must be done in accordance with the dictates of the Fourth Amendment to the United States Constitution that provides:

The right of the 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 places to be searched, and the persons or things to be seized.

B. Although the word arrest does not appear in the Fourth Amendment, courts have consistently equated “arrest” with “seizure”. The United States Supreme Court has declared: “it is the command of the Fourth Amendment that no warrants either for searches or arrests shall issue except upon probable cause”.

C. Probable cause is not a complex legal formula understandable only by those trained in the law. It is arrived at by collecting facts of such quality that logic and common sense point with reasonable certainty in the direction of guilt.

1. Vague hunches or suspicions are not enough.

2. The belief must be supported by facts.

3. An officer’s experience as a police officer is a fact that can be relied upon to support probable cause, provided it can be documented.

4. The facts upon which the probable cause was based must have been known at the time of the arrest.

5. Post-arrest actions by the accused are irrelevant to the lawfulness of the initial arrest.

D. An officer should only arrest when reasonably sure that at the moment of arrest the officer could point to a sufficient number of hard facts to convince a neutral and detached magistrate that is was reasonable to believe an offense was being committed or had been committed by the person to be arrested.

E. There is no limit to the types of information that can be used to support probable cause, provided such information is not vague and can be documented. Among the types of information that an officer can rely upon are:

1. Observed facts surrounding the incident (i.e., behavior, appearance and location of suspect, suspect’s height and weight, etc.)

2. Familiarity with the suspect (i.e., suspect’s prior record, prior observation of suspect and earlier contacts with suspect, etc.)

3. Reports from others (accounts given by witnesses, reliable informants, etc.)

4. Each of these sources of information can lead to a determination of probable cause, but some may require corroboration by other facts if they are to be given due consideration.

IV. Arrest and the Fourth Amendment

A. To determine whether a police-citizen encounter has elevated into a Fourth Amendment arrest, the courts will consider the following factors:

1. Whether the encounter was consensual.

2. The basis for the encounter and whether the involved officer had reasonable grounds to believe a criminal offense had occurred and the grounds for that belief.

3. The duration of the encounter.

4. The investigative methods used to confirm or dispel suspicions.

5. An officer’s statement that the individual is the subject of an investigation.

6. An officer’s statement that the individual is or is not free to leave.

7. Whether the officer(s) blocked the individual’s path or impeded his progress.

8. Whether weapons were displayed, enforcement canines employed, or the use of force in any other way threatened.

9. The number of law enforcement personnel present and their demeanor.

10. The location of the encounter (public or private).

11. The extent to which the officer(s) restrained the individual.

12. Whether the individual was transported to another location against his will (how far and why).

13. Whether the individual was free to choose between terminating or continuing the encounter with the officer(s).

B. The courts have recognized that probable cause determinations made by officers in the field are often made in haste due to the dangerous circumstances at hand. These determinations will not be scrutinized by legal scholars using rigid standards and exacting calculations. Rather, probable cause will be assessed by everyday commonsensical probabilities upon which ordinary, reasonable people act.

V. Arrest with a Warrant

A. When an arrest warrant issues, it demonstrates that a neutral and detached magistrate or judge has determined that probable cause exists to believe that the subject of the warrant has committed an offense. As such, the warrant necessarily serves to protect individuals from unreasonable seizures.

1. N.J.S. 2A:10-8 gives a police officer the power to serve a contempt warrant and “to produce the person subject to punishment for contempt before the judge of such court issuing said warrant”.

2. It is preferable to obtain a warrant prior to arresting any individual when the circumstances surrounding the incident will allow it.

B. Whenever an officer possesses an arrest warrant for an individual, the officer has the right to serve the warrant anywhere in this state.

C. All arrest warrants issued by officers of this department must be in strict compliance with the procedural mandates explained in written directive V7C6 – Preparation and Issuance of Criminal Complaints.

VI. Warrantless Arrests

A. The United States Constitution permits an officer to arrest an individual in any public place without a warrant if there is probable cause to believe that the suspect has committed or is committing a criminal offense.

1. The Fourth Amendment permits such warrantless criminal arrests even though the law enforcement officer had sufficient time to obtain a warrant.

2. New Jersey expressly follows the common law of arrest that permits a police officer to effect a warrantless arrest upon probable cause that a crime has been or is being committed by the person being arrested.

3. As a grant of authority to a municipal police officer to effect an arrest anywhere in the State for a crime committed in his or her presence, N.J.S. 40A:14-152.1 provides: Notwithstanding the provisions of N.J.S. 40A:14-152 or any other law to the contrary, any full-time, permanently appointed municipal police officer shall have full power of arrest for any crime committed in said officer’s presence and committed anywhere in the territorial limits of the State of New Jersey.

B. With respect to disorderly persons and petty disorderly persons offenses, state statute provides (N.J.S. 2A:169-3) : “Whenever an offense is committed in his presence, any constable or police officer shall, and any other person may, apprehend without warrant or process any disorderly person, and take him before any magistrate of the county where apprehended”.

1. This statute clearly dictates that in order for a police officer to effect a warrantless arrest of a disorderly person, the offense must be committed in the officer’s presence.

• In State of New Jersey v. Morse, the New Jersey Supreme Court held that a defendant’s admission to a police officer of the facts making up the offense alleged will satisfy the requirement that the officer knew of the event by use of his senses.

2. As previously mentioned, state statutes allow a law enforcement officer, in certain circumstances, to effect the warrantless arrest of a person whom the officer has probable cause to believe has committed a disorderly or petty disorderly persons offense, even though the offense did not take place in the officer’s presence. These offenses are identified as:

• Shoplifting – N.J.S. 2C:20-11e

• Theft of Library Materials – N.J.S. 2C:20-14b

• Domestic Violence – N.J.S. 2C:25-5

• Driving While Intoxicated – N.J.S. 39:4-50

C. With respect to municipal ordinance violations, N.J.S. 40A:14-152 provides: “The officers and officers of a police department and force, within the territorial limits of the municipality, shall have all the powers of peace officers and upon view may apprehend and arrest any disorderly person or any person committing a breach of the peace”.

1. Under this statute there are two (2) prerequisites that must be met before an officer may arrest:

• The offense must have occurred “upon view” of the officer, AND

• The offender must be either a “disorderly person” OR have committed a “breach of the peace”.

2. Accordingly, while an officer may arrest an offender for a disorderly person’s offense committed in the officer’s presence, an officer may only arrest an offender for a municipal ordinance violation if the offense occurred within the officer’s presence AND the offense involved a breach of the peace.

D. A person arrested without a warrant shall be immediately transported to police headquarters where a complaint shall be prepared forthwith.

1. A Summons (CDR-1) rather than an Arrest Warrant (CDR-2) shall be issued unless the judge, clerk, deputy clerk, municipal court administrator or deputy court administrator finds:

• The defendant is charged with murder, kidnapping, aggravated manslaughter, manslaughter, robbery, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, second degree aggravated assault, aggravated arson, arson, burglary, violations of Chapter 35 of Title 2C that constitute first or second degree crimes, any crime involving the possession or use of a firearm, conspiracies or attempts to commit such crimes, fugitive from justice or domestic violence offenses; or

• The defendant has failed to respond to a summons; or

• The officer in charge has reason to believe that the defendant is dangerous to himself or herself, others or property; or

• There is an outstanding arrest warrant for the defendant; or

• The address of the defendant is not known and an arrest warrant is necessary to subject the defendant to the jurisdiction of the court; or

• The officer in charge has reason to believe that the defendant will not appear in response to a summons. A summons rather than an arrest warrant will issue if the defendant is a corporation.

VII. Effecting the Arrest

A. To effect any arrest, officers must identify themselves as police officers and clearly advise the subject to be arrested that he or she is under arrest.

1. Uniformed officers effecting arrest need not identify themselves if their identity as a police officer is plainly evident.

2. Non-uniformed officers must verbally identify themselves as a police officer and exhibit their department issued identification and badge as evidence of their authority.

B. Officers shall inform the party to be arrested of the reason for the arrest at the earliest practical opportunity. In situations where safety is an issue, the subject to be arrested need not be advised of the reason for the arrest until such time as the subject is securely in custody.

C. Officers who effect an arrest shall immediately notify central communications to provide documentation of the arrest. In most situations it is preferable that this notification be made over police radio.

D. All persons arrested by officers of this department shall be secured with handcuffs at the earliest practical opportunity and transported to the appropriate facility without unnecessary delay.

E. Transportation of arrestee’s shall be conducted in accordance with the provisions of the written directive governing Prisoner Transportation.

VIII. Entry of Dwelling to Effect Arrest

A. If an officer has an arrest warrant for a crime and has probable cause to believe that the subject of the warrant is inside a house, building or apartment, the officer may, under appropriate circumstances, enter the house, building or apartment to make the arrest.

1. Entry is permitted under this section as follows:

• Upon failure to be granted admittance after the officer announces his authority and purpose to make an arrest by warrant for a crime.

• In fresh pursuit of a person suspected of committing a crime.

• Exigent circumstances make it necessary to immediately enter to prevent/ terminate the commission of a crime or threat to officer/ public safety.

2. In all such circumstances the officer shall exercise good judgment in determining whether to enter the building or wait to make the arrest outside.

3. Whenever possible, an officer shall summon and receive approval from a supervisor prior to making entry to a building or residence to attempt the arrest.

4. If the decision to enter is made, the officer conducting the action shall announce his identity and demand that the person inside opens the door.

5. An arrest warrant permits entry into a residence to make an arrest only if the premises is the primary residence of the person to be arrested. If the property is not the primary residence of the person to be arrested, an entry cannot be made without a search warrant or consent.

B. Absent exigent circumstances, an officer may NOT make a warrantless, nonconsensual entry into a suspect’s home to arrest him even though probable cause exists to believe the suspect is, in fact, the perpetrator of a felony (indictable offense).

1. The United States Supreme Court has stated, “as a basic principle of Fourth Amendment law, … searches and seizures inside a home without a warrant are presumptively unreasonable”.

2. This obviously extends to disorderly and petty disorderly persons offenses, municipal ordinance violations and traffic offenses. In fact, the Court has reasoned that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made".

• It will be rather difficult to establish the requisite exigent circumstances when there is probable cause to believe that only a minor offense has been committed.

3. Evidence discovered and/ or seized inside the home, and statements taken or elicited from the suspect inside the home will be suppressed if the warrantless entry and arrest are not based on sufficient exigent circumstances.

C. Absent sufficient exigent circumstances, officers are not permitted to enter a third party residence for the purpose of arresting a suspect who does not reside therein, without a search warrant.

1. This holds true regardless of the fact that a valid arrest warrant is possessed for the non-resident defendant named in the warrant.

D. Whenever an officer is involved in a situation where a warrantless entry to a suspect’s residence is being contemplated, the officer shall first confer with a supervisor for authorization to conduct such entry unless the exigency that exists would prohibit such action.

E. There have been several significant legal decisions regarding warrantless entry of a dwelling by police officer involved in “hot pursuit” of a suspect.

1. In State of New Jersey v. Bolte, the New Jersey Supreme Court stated that “hot pursuit” alone is not enough to justify a warrantless entry of a dwelling to arrest a suspect for a minor offense. Absent exigent circumstances or the commission of a serious offense (indictable), this action is not permitted.

• This decision involved the offense of eluding which was a disorderly person’s offense at the time of this incident. The offense has since been elevated to a 3rd degree offense, and in certain circumstances a 2nd degree offense, and if decided today, the arrest of Bolte would have been upheld due to the seriousness of the offense.

2. In State of New Jersey v. Jones, the New Jersey Supreme Court stated “police officers acting pursuant to a valid arrest warrant have the right to follow a fleeing suspect into a private residence and effect his or her arrest.

IX. Extra-Territorial Arrests

A. The authority of officers to make an arrest without a warrant is set forth by N.J.S. 40A:14-152 as follows: "The officers and officers of a police department and force, within the territorial limits of the municipality, shall have all the powers of peace officers and upon view may apprehend and arrest any disorderly person or any person committing a breach of the peace. Said officers and officers shall have the power to serve and execute process issuing out of the courts having local criminal jurisdiction in the municipality and shall have the powers of a constable in all matters other than in civil causes arising in such courts."

1. Basically, this statute authorizes a municipal police officer to arrest only within the confines of the municipality in which he is an officer. There are, however, statutory and case law exceptions to this general rule.

2. In State v. McCarthy, the Appellate Division held that a police officer’s “power to arrest without a warrant is by no means invariably confined by the territorial limits condition of N.J.S. 40A:14-152. In addition to his official powers, he may also exercise those which he enjoys in common with any private citizen”.

B. Intrastate Fresh Pursuit Act

1. N.J.S. 2A:156-1 “Any peace officer of this state in fresh pursuit of a person who is believed by him to have committed a high misdemeanor in this state, or attempted to commit, any criminal offense in this state in the presence of such officer, or for whom such officer holds a warrant of arrest for a criminal offense shall have the authority to arrest and hold in custody such person anywhere in this state”.

2. N.J.S. 2A:156-2 “The term “fresh pursuit” as used in this chapter shall include fresh pursuit as defined by common law, and also the pursuit of a person who has committed a high misdemeanor or is reasonably suspected of having committed a high misdemeanor in this state, or who has committed or has attempted to commit any criminal offense in this state in the presence of the arresting officer referred to in section 2A:156-1 of this title, or for whom such officer holds a warrant of arrest for a criminal offense. It shall also include the pursuit of a person suspected of committing a supposed high misdemeanor in this state, though no high misdemeanor has actually been committed, if there is reasonable grounds for believing so. Fresh pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without reasonable delay”.

• In accordance with N.J.S. 2C:1-4d, “high misdemeanor” is intended to mean crimes of the 1st, 2nd and 3rd degree and “misdemeanor” is intended to mean all crimes.

• In State V. McCarthy, the term “any criminal offense” was determined to include lesser offenses under Title 39, the Motor Vehicle Act, and disorderly conduct within the meaning of N.J.S. 2A:169-3.

C. Uniform Fresh Pursuit Law

1. New Jersey has enacted a statute (N.J.S. 2A:155-2) validating arrests made interstate. This statute permits a law enforcement officer from one state who is in “fresh pursuit” to enter into another state to effect an arrest for a felony (“high misdemeanor”) if both states have enacted the Uniform Fresh Pursuit Law.

• To date, 42 other states and the District of Columbia have enacted fresh pursuit laws. This includes Delaware, Pennsylvania and New York.

• Absent probable cause to believe a felony (“high misdemeanor”) has been committed, a police office would not be empowered to pursue a criminal suspect into another state and arrest him.

2. In accordance with N.J.S. 2A:155-5, any suspect arrested under this section in this state by an officer of another state shall be brought without unnecessary delay before a magistrate for the purpose of determining the lawfulness of the arrest.

• If the magistrate determines the arrest was lawful, he shall commit the person arrested to await a reasonable time for the issuance of an extradition warrant by the governor of this state or admit him to bail for that purpose.

• If the arrest is determined unlawful, the person arrested shall be discharged.

D. The authority of a police officer to arrest for disorderly and motor vehicle offenses outside of the boundaries of the municipality has also been upheld under N.J.S. 2A:169-3 and N.J.S. 39:5-25. In State v. McCarthy, the court upheld the arrest on the basis of the Intrastate Fresh Pursuit Act (referred to above) and under N.J.S. 39:5-25 and N.J.S. 2A:169-3.

1. The Court stated that under N.J.S. 39:5-25 a police officer is empowered to arrest without a warrant anyone who violates in his presence any motor vehicle provision within Title 39, Chapters 3 and 4. The authority to apprehend under this statute is not specifically limited to the municipality or county where the offense occurred. The statute only requires that the arrested person be brought before any magistrate of the county where the offense occurred.

2. The Court also cited N.J.S. 2A:169-3, which states that: "Whenever an offense is committed in his presence, any constable or police officer shall, and any other person may, apprehend without warrant or process any disorderly person, and take him before any magistrate of the county where apprehended.”

• Under this statute, a private citizen's power to apprehend a disorderly person is not geographically limited to the municipality or county where the offense occurred. The Court in State vs. McCarthy felt that a police officer's powers to arrest are co-extensive with a private citizen and therefore, a police officer has the authority to arrest as a private citizen outside of the borders of his town.

• The Court equated drunken driving offenses with disorderly persons offenses for purposes of intra-state pursuit so arrests for disorderly persons offenses and drunken driving offenses can be made by a police officer outside of his municipality under N.J.S. 2A:169-3.

E. In accordance with the above case law and statutes, police officers may arrest outside their municipality without a warrant in the following situations:

1. Indictable Offenses

• When in fresh pursuit, a police officer may arrest, anywhere in this State, anyone whom he reasonably believes committed a high misdemeanor. A misdemeanor must be committed in his presence. N.J.S. 2A:156-1. The arrested person should then be taken, without unnecessary delay, before the nearest available committing judge. R. 3:4-1. In other than fresh pursuit situations, a municipal police officer may effect an arrest anywhere in the State for a crime committed in his or her presence. N.J.S. 40A:14-152.1.

2. Disorderly Person Offenses

• A police officer may arrest a person who commits a disorderly persons offense in his jurisdiction and in his presence and then, with the officer in fresh pursuit, flees to another municipality. N.J.S. 2A:156-1. In other than fresh pursuit situations, an officer may, under certain circumstances, arrest as a private citizen for offenses that occur in his presence. N.J.S. 2A:169-3; State v. McCarthy. Although N.J.S. 2A:169-3 provides that a person arrested by a police officer without a warrant shall be taken to any magistrate of the county wherein the offense is committed, the jurisdiction of a municipal court to hear offenses involving the "disorderly persons law" is limited to offenses occurring within the territorial jurisdiction of the court. It would seem, therefore, that if the offense occurs in the municipality and the arrest effected outside of it, the matter would have to be heard in the municipality where the offense occurred.

3. Motor Vehicle Offenses

• A police officer may arrest or issue a summons to any person who commits a motor vehicle violation in his presence and then flees with the officer in fresh pursuit to another municipality. N.J.S. 2A:156-1. In other than a fresh pursuit situation, an officer may arrest anywhere on roads forming the border of his municipality; State v. Williams. One may also effectuate an arrest for offenses committed in his presence, N.J.S. 2A:169-3 and N.J.S. 39:5-25; State v. McCarthy. As with disorderly offenses, the matter should then be heard in the municipal court where the offenses occurred.

X. Arrest for Motor Vehicle Offenses

A. N.J.S. 39:5-25 authorizes both issuance of a summons and arrest for motor vehicle violations to which it applies, however the statute does not contain provisions that suggest whether an arrest or a summons is appropriate.

1. Experience dictates that arrests for routine motor vehicle violations occur only rarely, and that the standard police practice is to detain the offending driver only for the interval required for issuance of a summons.

B. In State v. Pierce, the court stated there are other sources of law that suggest an officer’s authority to arrest under N.J.S. 39:5-25 is, and should be, restricted to those offenses in which an “arrest is necessary to protect public safety or to assure that the offender will respond to a summons”.

1. The court identified several motor vehicle violations that they classified as “serious offenses” or offenses that “implicate the public safety”. The following is a list of such offenses:

• Driving while revoked (N.J.S. 39:3-40)

• Driving while intoxicated (N.J.S. 39:4-50)

• Operate a vehicle while knowingly possessing C.D.S. (N.J.S. 39:4-49.1)

• Willful abandonment of a vehicle on a public highway for the purpose of obstructing passage of other vehicles (N.J.S. 39:4-56.1 – 56.2).

• Reckless driving (N.J.S. 39:4-96), careless driving (N.J.S. 39:4-97), speeding (N.J.S. 39:4-98), and leaving the scene of an accident (N.J.S. 39:4-129), when these violations have resulted in death or serious bodily injury to another.

C. In Pierce, the court referred to the violation of N.J.S.39:3-40 (driving while suspended) and the appropriateness of an arrest “in recognition of the potential hazard presented by one who operates a motor vehicle without State authorization. If no other licensed driver is in the vehicle, arresting the driver is consistent with an officer’s duty to make certain that the offender cannot continue to drive. Even if other licensed drivers are present, the severity of the penalties …. would ordinarily justify the arrest of the violator”…

XI. Off-Duty Arrests

A. Off-duty officers may be confronted with situations involving criminal conduct that they are neither equipped nor prepared to handle in the same manner as if they were on-duty. These situations could lead to unnecessary injuries to off-duty officers, and confusion for those on-duty officers arriving at the scene.

B. While off-duty, officers are responsible for immediately reporting any suspected or observed criminal activity to the appropriate on-duty police personnel.

C. Except as otherwise permitted by this written directive, off-duty officers shall not enforce minor violations such as harassment, disorderly conduct or other nuisance offenses.

1. When confronted with such situations, the officer shall notify on-duty personnel to respond and handle the incident.

D. While off duty, an officer shall only make an arrest under the following circumstances:

1. There is an immediate need to prevent a crime or apprehend a suspect; AND

2. The crime would normally require a full custodial arrest; AND

3. The arresting officer is in possession of appropriate police identification AND identifies himself as a police officer.

E. Officers of this department are prohibited from making an arrest while off-duty in the following situations:

1. When the officer is personally involved in the incident underlying the arrest; OR

2. When engaged in secondary employment of a non-police nature, and the officer’s actions are only in furtherance of the interests of the private employer; OR

3. When the arrest is made solely as enforcement of a minor traffic regulation. Despite the fact that officers have police powers and responsibilities twenty-four (24) hours a day throughout their jurisdiction, off-duty officers are prohibited from enforcing minor traffic regulations.

NOTE: for the purpose of this written directive, an officer shall be deemed to be “personally involved” if the off-duty officer, a family member, or a friend becomes engaged in a dispute or incident involving a personal matter with the person to be arrested or any other person connected with the incident. This does not apply to situations where the officer is a victim of crime.

F. When it is necessary to effect an off-duty arrest, the action must be taken in accordance with all the provisions of the written directives of this department.

XII. Constitutional Rights - Miranda Warnings

A. The United States Supreme Court in Miranda v. Arizona established certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.

1. A suspect must be told “ he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed to him prior to any questioning if he so desires”.

2. There is no legal requirement that the warnings be given in the exact form as provided

above.

B. In State v. Reed, the New Jersey Supreme Court decided that it is also essential that a suspect be clearly informed that he or she may ask for counsel at any time during custodial interrogation, and, additionally, that interrogation will be stopped at any time the suspect desires counsel.

C. Accordingly, prior to any custodial interrogation, officers are required to advise suspects of their constitutional rights using only the official blue Miranda Card or the Miranda Form issued by this department.

1. Miranda Warnings are only required if a officer intends to conduct custodial interrogation of a suspect. Absent custodial interrogation, there is no requirement for such warnings.

2. Miranda Warnings shall not be administered as a perfunctory task after each custodial arrest. When the possibility exists that an arrestee is going to be subjected to custodial interrogation, the officer conducting the arrest shall avoid giving the Miranda Warnings and allow those who are going to be conducting the interrogation to administer the warnings. Obviously, without Miranda Warnings there shall be no custodial questioning of the arrestee concerning a matter under investigation.

3. Routine post-arrest questions intended to secure biographical data necessary to complete booking and/ or pre-trial services do not require administration of Miranda Warnings as they are for record-keeping purposes only.

D. If a suspect indicates in any way, at any stage of questioning, that the suspect wants to remain silent or consult with an attorney, any interrogation must immediately cease and no further questions will be asked.

E. For more information on Miranda Warnings see written directive V8C6 – Interviewing and Interrogation.

XIII. Securing Prisoners

A. Generally, all persons placed under arrest, regardless of age or sex, shall be handcuffed with their hands behind their back.

1. Officers shall utilize department issued handcuffs and/ or personally owned handcuffs that are substantially similar to those issued by the department.

2. When faced with an unusual circumstance that makes it impractical or impossible to employ accepted handcuffing practices, officer should rely on common sense and good judgement to determine the most practical means for securing the prisoner.

B. When necessary, officers are permitted to utilize additional restraints including leg irons and restraining belts.

C. When applying handcuffs and leg irons, officers are reminded that these items shall be applied in such a manner as to prevent unnecessary pain and/ or injury to the prisoner. Handcuffs and leg irons shall be:

1. Tightened to prevent escape but not overly tightened so as to cause pain or restricted blood flow.

2. Double locked after application and applied as close to the skin as possible.

D. In mass arrest situations where the number of prisoners exceeds the number of available handcuffs, prisoners may be handcuffed to one another except that:

1. Juveniles and adults cannot be handcuffed together.

2. Males and females cannot be handcuffed together.

XIV. Searching of Prisoners

A. It is absolutely imperative that all persons arrested are thoroughly searched in accordance with the provisions of this written directive prior to transportation from the arrest location.

1. In addition to a thorough search conducted in the field, all prisoners will be subjected to a secondary search of equal or exceedingly thorough scope during the booking procedure at police headquarters.

B. The United State Supreme Court has declared that searches and seizures conducted without a warrant are “per se unreasonable within the meaning of the Fourth Amendment”, thus establishing a written warrant requirement for conducting searches and/ or seizures.

1. Searches conducted “incident to lawful custodial arrest based upon probable cause” are one (1) of several recognized exceptions to the written warrant requirement.

C. Officers are cautioned however that searches cannot be conducted in order to arrest, nor may an arrest be made based upon the product of a search.

1. Searches conducted merely to uncover evidence with which to arrest and prosecute will not be declared lawful simply because the desired evidence was found.

2. Probable cause for the arrest, separate and distinct from that which the search of the person disclosed, must be present before the search is undertaken, otherwise, the arrest will be declared unlawful and the evidence recovered from the search will be suppressed.

D. Search incident to a lawful arrest entitles the police to conduct a full search of the individual’s person and of the area within that person’s immediate control. Chimmel v. California

1. The courts have allowed these searches in order that police may “recover any weapons that the arrestee may seek to use in order to resist arrest or effect his escape” and based upon the need to prevent the destruction or concealment of evidence.

2. The reference to “full search of the individual’s person” does not permit a strip or body cavity search in such instances. (See V7C3 – Strip/ Body Cavity Search Procedures)

3. In Preston v. United States and Vale v. Louisana, the United States Supreme Court has consistently limited the scope of a search incident to law arrest to the immediate vicinity of the arrest and held that the search must be contemporaneous to the arrest. When a warrantless search is expanded to areas outside of the immediate vicinity of the arrest, the proceeds of the search will be suppressed.

E. Under federal law, when an officer has made a lawful custodial arrest of the occupant of an automobile, he may, “as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” New York v. Belton

1. This search of the passenger compartment shall encompass any containers found within the passenger compartment such as glove boxes, consoles, luggage, boxes, bags, clothing and the like. The term “containers” denotes any object capable of holding another object.

2. The search of any such container is justified regardless of the fact that the container is opened or closed.

3. This justification for search incident to arrest applies only to the passenger compartment and does not extend to the trunk of the automobile.

4. The search must be conducted “contemporaneous” to the search.

5. The parameters of the search authorized by the Belton Case are restricted to those areas that are conceivably accessible to the arrestee at the time of his arrest.

F. In New Jersey, police officers may not conduct a routine passenger-compartment search of an automobile incident to the warrantless arrest of its driver for a motor vehicle violation. State v. Pierce.

1. The New Jersey Supreme Court here reinforced the premise that Article I paragraph 7 of the New Jersey Constitution affords the residents of New Jersey greater protection than the federal constitution by rejecting Belton’s automatic application of Chimmel to authorize vehicular searches following all arrests for motor vehicle offenses.

2. The decision in Pierce does not in any way limit the authority of police officers to conduct a search of the person of the arrestee solely on the basis of the lawful arrest.

3. Additionally, in Pierce, the court held 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 sustained under Chimmel, but not based on Belton’s automatic application of Chimmel”.

XV. Search Procedures

A. When conducting a search incident to arrest in the field, officers shall follow these general guidelines:

1. It is preferable that an officer of the same sex as the suspect conducts all searches.

2. Officer’s preparing to conduct searches should wear protective gloves at all times when possible.

3. Remove all bags, containers, packages and similar items from the suspect’s possession.

4. Approach: always approach a suspect from a position that provides you with a tactical advantage.

• When approaching from the rear, stay to the suspect’s right side.

• Approach suspect in a well-lit area if possible.

• Position yourself to cut off the suspect’s avenues of escape.

• Make proper use of cover and/ or concealment.

• Maintain a visual observation of the suspect’s hands.

• Give clear and concise commands.

• If two officers are involved in the arrest, one is the contact officer and the other the cover officer.

• Always maintain a proper body position, i.e., bladed boxer stance.

5. Remove bulky coats, jackets and/ or outer clothing.

6. Ensure that the arrested person is handcuffed to prevent attack and/ or escape.

7. Place the suspect in a position that is most appropriate considering the person and the arrest location.

8. Search: there are a variety of search techniques or styles to be used depending on the circumstances or threat level. Speed cuffing should be used with any of these styles.

• STANDING: Used with a cooperative person. Provides the least amount of control of the suspect by the officer.

• KNEELING: Used with a less cooperative person. Provides greater control of the suspect and adapts readily to speed cuffing.

• PRONE: Used with an uncooperative person, violent, armed or potentially armed person. Provides the greatest degree of control of the suspect.

• WALL: This method can be easily defeated by an experience criminal. Officers utilizing this position must remain in control of the suspect and alert to prevent escape or attack.

9. Start the search at the suspect’s head and continue down to his feet.

10. By handling the suspect’s clothing and patting down to his body, any obvious weapons and/ or evidence should be discovered.

11. Tight fitting clothes, belts, etc shall be pulled away from the body and/ or removed when possible to allow concealed items to drop free.

12. When the search of the suspect is completed. He shall be secured into a police vehicle unless circumstances justify other action.

13. If a weapon, evidence or contraband is located, secure it and continue to search for additional weapons, evidence or contraband.

B. Searching suspects of the opposite sex

1. If absolutely necessary to conduct a search of an arrestee of the opposite sex, officers shall follow these guidelines:

• Maintain a professional demeanor and advise the suspect what you are doing.

• Always confiscate and thoroughly check the suspect’s handbag/ purse, if applicable.

• When conducting the search use a key baton or the edge of your hand to search the genital area or the breast area (women).

• Have female suspects pull their shirts/ blouses tight against their body in an attempt to observe concealed weapons.

• Have female suspects grasp their shirts/ blouses and bra straps and forcefully shake them several times to dislodge any concealed objects.

XVI. Reporting Requirements

A. All physical arrests of suspects for any offense or violation shall be accompanied by the following reports:

1. Computerized Booking Report.

2. Computerized Incident Report.

3. Uniform Investigation Report, if necessary.

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Standard

1.2.5.a

Standard

1.2.5

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