Opinion
DOCKET NO. A-0623-12T4
03-18-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. DANIEL DOLAN, Defendant-Respondent.
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Kristina R. Schmelz, Assistant Deputy Public Defender, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 12-03-0490.
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for appellant (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for respondent (Kristina R. Schmelz, Assistant Deputy Public Defender, on the brief). PER CURIAM
By leave granted, the State appeals from an order of the Law Division suppressing evidence seized as a result of a strip search in the prosecution of defendant, Daniel Dolan, for third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1). We affirm.
At around 6:30 p.m. on October 8, 2011, Neptune Township police officer Bryce Byham and his partner, Officer Nick Taylor, were on patrol in an unmarked vehicle when they observed a Hyundai, occupied by four individuals, swerve between lanes traveling south on Memorial Drive. They also observed that the driver was not wearing a seat belt. Officer Byham activated his sirens and the Hyundai pulled over.
Officer Byham approached the driver's side door to speak with the driver, Macauly Crane, while Officer Taylor approached the passenger side door where defendant was seated. While Crane was attempting to locate his driving credentials, Officer Byham observed in plain view several items he recognized as drug paraphernalia, namely a metal marijuana grinder on the front passenger's side floorboard, and several small plastic bags and a burnt metal spoon behind the driver's seat.
One by one, all four occupants were then ordered to get out of the car, arrested for the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2, and patted down. Crane was the first to exit the car, but no contraband was found on him. Daniel Sears, one of the two back-seat passengers, exited next, and nothing was found on him during the search.
Officer Byham then removed Christopher Hammell from the back seat of the car and arrested him. During the pat down, Hammell was fidgety and tried to turn away when Byham swept the area of his buttocks. Officer Byham felt a hard object which, based on his training and experience, he immediately believed to be packaged heroin. As the officer felt the object, it became dislodged and fell down Hammell's pant leg to the ground. Officer Byham recognized the object to be six glassine bags of heroin bundled together with a rubber band. After securing the heroin, Byham placed Hammell on the curb and arrested him on the additional charge of possession of heroin.
Finally, Officer Byham removed defendant, the front seat passenger, from the car. As Byham was patting down the area of defendant's buttocks, defendant became fidgety and tried to "tighten up or cl[e]nch up." Unlike with Hammell, Officer Byham did not feel any objects nor recover any contraband during the search of defendant.
After all four occupants were searched, they were placed in patrol vehicles and transported to police headquarters. Officer Byham then obtained permission from his supervisor, Lieutenant Robert Mangold, to strip search all four individuals. No search warrant was obtained.
Defendant's strip search, to which he did not consent, was conducted in a room located off the booking area by Officers Byham and Taylor. As ordered, defendant removed his boxer shorts and two glassine bags of heroin fell to the ground. Defendant was then charged with possession of heroin.
At the close of evidence, the motion judge suppressed the heroin found as a result of defendant's strip search. Although he found the vehicle stop, arrest for the disorderly persons offense, and search incident to that arrest all constitutionally justified, the judge ruled that the strip search was illegal under N.J.S.A. 2A:161A-1. The judge reasoned that the officers did not have probable cause to arrest defendant for the crime of drug possession and therefore absent an exception to the warrant requirement, N.J.S.A. 2A:161A-1(b) mandates securing a search warrant before conducting a strip search of a person under arrest for a disorderly persons offense:
Hammell had already been arrested for a crime, possession of a controlled dangerous substance, found when the glassine bags had dropped to the ground at the scene. The other two individuals and [defendant] had not been arrested for crimes. They had only been arrested for offenses.
. . . .
Now, based on the actions of [defendant] at the scene, one might say that gave Officer Byham and Lieutenant Mangold the probable cause they needed to suspect that he also had drugs contained in his buttocks because he acted the same way that Hammell did. The difference is there were no drugs found prior to the strip search. And the second part of [subsection] (b) is that there has to be a recognized exception to the warrant requirement and there is none here.
. . . .
And under [the State's] theory we would have had complaints signed against the other two individuals that now either would have to be dismissed or the argument would be constructive possession. . . .
And no complaints were signed against the other two individuals because complaints were not going to be signed unless drugs were found on the person and the drugs were found on the person, again, not because there was probable cause to charge him, because there wasn't probable cause to charge him until the drugs were found. . . .
. . . .
So, I am finding that there was a . . . potential for probable cause to conduct the strip search, but it would have to have been done through the obtaining of a search warrant. . . .
On appeal, the State contends that, regardless of the officers' subjective motivation for arresting defendant, they had probable cause to believe he was in possession of drugs that sufficed, objectively speaking, to justify his arrest for that crime and therefore the statutory restriction applicable to those arrested for an offense other than a crime simply do not apply here. We disagree.
In addition to constitutional limitations on police searches, strip searches are regulated and restricted by statute. N.J.S.A. 2A:161A-1 provides:
A person who has been detained or arrested for commission of an offense other than a crime shall not be subjected to a strip search unless:
a. The search is authorized by a warrant or consent;
b. The search is based on probable cause that a weapon, controlled dangerous substance, as defined by the "Comprehensive Drug Reform Act of 1987," N.J.S.A. 2C:35-1, et al., or evidence of a crime will be found and a recognized exception to the warrant requirement exists; or
c. The person is lawfully confined in a municipal detention facility or an adult county correctional facility and the search is based on a reasonable suspicion that a weapon, controlled dangerous substance, as defined by the "Comprehensive Drug Reform Act of 1987," N.J.S.A. 2C:35-1 et al., or contraband, as defined by the Department of Corrections, will be found, and the search is authorized pursuant to regulations promulgated by the Commissioner of the Department of Corrections.
Indisputably, defendant was arrested for the disorderly persons offense of possessing drug paraphernalia. Therefore, the statute applies. See State v. Harris, 384 N.J. Super. 29, 49 (App. Div.), certif. denied, 188 N.J. 357 (2006). The exceptions in subsection 1(a), however, are not applicable because there was no search warrant and defendant did not consent. Nor does the State rely on the exception in subsection 1(c), as defendant was not detained for the purposes of that subsection.
Subsection 1(b) requires "probable cause" and "a recognized exception to the warrant requirement." We find neither of these criteria present in this case.
For probable cause to search to exist, the question is "whether, given all the circumstances . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Nishina, 175 N.J. 502, 515 (2003) (internal quotation marks omitted). The facts here simply do not support a reasonable belief that defendant was concealing drugs. See Harris, supra, 384 N.J. Super. at 48-49. Defendant was one of four occupants in a car in which drug paraphernalia was found. A pat down of three of them, including the driver and defendant, uncovered no contraband or any evidence of a crime. A pat down of the fourth occupant revealed a hard object which became dislodged and fell to the ground. Significantly, the officer patting down defendant felt no similar hard object and, as noted, the search of his person uncovered no incriminating evidence. The fact that defendant might have fidgeted while his buttocks area was being swept is hardly suspicious, much less the basis for a reasonable belief that defendant was concealing drugs on his person.
But even if there was probable cause to believe defendant was concealing drugs on his person, the State has failed to show the existence of a recognized exception to the warrant requirement to satisfy the strictures of N.J.S.A. 2A:161A-1(b). See State v. Hayes, 327 N.J. Super. 373, 381 (App. Div. 2000). In Hayes, defendant was properly arrested on a motor vehicle warrant, and hence N.J.S.A. 2A:161A-1 applied. Id. at 378. The court found the police also had probable cause to believe the defendant was concealing drugs on his body because he was squirming and attempting to reach down the back of his pants while handcuffed in the back of the police vehicle, and because the police had experience with the defendant and knew his drug concealment methods. Id. at 376, 378. But even though there was probable cause, we held the police did not have the authority to conduct a strip search of the defendant because an exception to the warrant requirement did not exist. Id. at 378. Finding no exigent circumstances, we also concluded that a "search incident to arrest" could not be invoked to justify a strip search under N.J.S.A. 2A:161A-1(b), reasoning that "[a]n arrest alone . . . cannot be both the event invoking the [statute's] protections as well as the event nullifying them." Ibid.
We similarly perceive no valid exception to the warrant requirement to justify the strip search of defendant in this case. We stress that we are construing a statute, albeit in light of applicable constitutional principles, that is "prophylactic, designed to protect citizens from an intrusive and degrading invasion of privacy." Hayes, supra, 327 N.J. Super. at 385. That statute strictly prohibits strip searches unless certain conditions exist. We are persuaded that the State has failed to demonstrate the existence of any of these requisite conditions.
Attorney General guidelines issued pursuant to N.J.S.A. 2A:161A-8 extend the protections of N.J.S.A. 2A:161A-1 to individuals arrests for crimes as well as those under arrest for an offense other than a crime. Attorney General's Strip Search and Body Cavity Search Requirements and Procedures for Police Officers (June 1995). ("While the statute addresses nonindictable offenses, the Attorney General's guidelines cover strip search and body cavity search procedures for crimes as well.").
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION