In this archive episode, Dennis discusses a recent case law in New Jersey regarding search incidents to arrest and strip searches. Recorded on 07/10/2018.

State v Robert Evans 2018,31

The Court considers whether the “plain feel” doctrine justified a warrantless strip search under the circumstances of this case in light of the “Strip Search Act,” N.J.S.A. 2A:161A-1 to-10.

On January 4, 2012, Officer Felipe Laboy of the Vineland Police Department began his evening shift by compiling a computer-generated list of outstanding warrants in the area. Defendant Robert L. Evans was on the list due to his failure to pay outstanding traffic fines, but Laboy knew only that Evans had an outstanding warrant, not what the warrant was for. After compiling the active warrant list, Laboy and his partner patrolled the parking lots of the Days Inn and Denny’s, which were areas known for narcotics, trespassing, and prostitution.

Just after midnight, Laboy saw Evans back his car into a space in the Days Inn parking lot and recognized him. Evans noticed the police presence and immediately drove out of the parking lot. The police pursued him. Laboy consulted his list, recognized Evans’s name, and decided to arrest him for his outstanding warrant. The patrol unit pulled Evans over, and he was unable to provide a driver’s license. Laboy placed Evans under arrest and then conducted a pat down search of Evans incident to his arrest.

During the search, Laboy found $2000 in cash in Evans’s pants pocket. He also noticed a bulge in the groin area of Evans’s jeans. In patting down that area, he felt a “rocklike substance.” Based on having felt similar objects “[m]aybe over a hundred times,” Laboy believed the substance was crack cocaine. A sergeant arrived on the scene, and gave Laboy permission to transport Evans back to the station for a strip search. Between Evans’s pants and underwear were two plastic bags. One bag contained nine baggies of heroin; the other had two smaller bags of crack cocaine. The police secured a search warrant for Evans’s car, from which they later recovered a handgun loaded with hollow-point bullets.

In March 2012, a grand jury charged Evans with various drug and weapons offenses. Evans sought to suppress the evidence as a violation of the Strip Search Act and argued that Laboy had a duty to determine the subject of the warrant before arresting him.

The judge found Laboy credible and ruled that the stop and arrest of Evans for the active warrant were permissible. The judge noted that due to the active warrant, Laboy could arrest Evans regardless of the offense. The judge ruled that the officer’s search incident to Evans’s arrest could not alone qualify as an exception to the warrant requirement needed to authorize a strip search. However, the judge found that the “plain feel” doctrine outlined in Minnesota v. Dickerson, 508 U.S. 366 (1993), and State v. Toth, 321 N.J. Super. 609 (App. Div. 1999), provided a basis to conduct a strip search. Applying the doctrine to the facts of the case, the judge ruled the strip search was permitted and denied the motion to suppress.

The Appellate Division reversed the denial of the suppression motion and vacated Evans’s conviction. State v. Evans, 449 N.J. Super. 66, 73 (App. Div. 2017). The panel found that Laboy had probable cause to suspect Evans had contraband in his pants and that the “plain feel” doctrine is a viable exception to the warrant requirement. However, the panel disagreed that Laboy acted reasonably in performing the strip search on Evans.

The State sought certification, which the Court granted. 230 N.J. 508 (2017). The Court also granted Evans’s cross-petition. 230 N.J. 505 (2017).

HELD: The panel erred in its application of the “plain feel” doctrine. Officer Laboy had witnessed “hundreds” of instances where defendants concealed contraband in the front of their pants and therefore immediately recognized the “rocklike” substance he felt to be similar to crack cocaine. Between the officer’s experience-derived identification of the substance and the presence of $2000 in cash, the “plain feel” exception — which the Court adopts — applied.

1. N.J.S.A. 2A:161A-1 provides that a person detained or arrested for an offense other than a crime shall not be strip searched unless “[t]he search is authorized by a warrant or consent,” subsection (a); the subject of the search “is lawfully confined,” subsection (c); or, as is relevant here, “[t]he search is based on probable cause that a weapon, controlled dangerous substance, as defined by [N.J.S.A. 2C:35-1 to-31], or evidence of a crime will be found and a recognized exception to the warrant requirement exists.” N.J.S.A. 2A:161A-1(b) (emphases added). To support a finding of probable cause, an officer must demonstrate there is a well-grounded suspicion that criminal activity is afoot. If probable cause is established, courts must explore exceptions to the warrant requirement. The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Accord N.J. Const. art. I, ¶ 7. Searches pursued without a warrant are per se unreasonable unless a delineated exception to the warrant requirement applies. (pp. 10-12)

2. The Appellate Division has previously determined that the search-incident-to-arrest exception to the warrant requirement cannot justify a strip search for purposes of N.J.S.A. 2A:161A-1(b) because the “statute’s protections are triggered by an arrest. An arrest alone, therefore, cannot be both the event invoking the protections as well as the event nullifying them.” State v. Hayes, 327 N.J. Super. 373, 378 (App. Div. 2000). The Appellate Division has also rejected the inevitable discovery doctrine as a means of justifying a search pursuant to the Strip Search Act, which requires “that all elements justifying [the strip search] be in place before the search occurs.” State v. Harris, 384 N.J. Super. 29, 51 (App. Div. 2006) (emphasis added). The Court agrees that those exceptions are unavailing in this context. (pp. 12-13)

3. The United States Supreme Court has accepted an officer’s “plain feel” of contraband as an exception to the warrant requirement: “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 inhere in the plain-view context.” Dickerson, 508 U.S. at 375-76 (emphases added). (pp. 13-15)

4. The Court has not adopted “plain feel” as an exception to the warrant requirement in New Jersey. However, the Appellate Division has addressed the “plain feel” doctrine. In Toth, the Appellate Division invoked the “plain feel” or “plain touch” exception to the warrant requirement in declining to suppress evidence seized during a pat down. 321 N.J. Super. at 614-16. In light of the Appellate Division’s recognition of the “plain feel” exception, police have relied on the doctrine for some time. The Court agrees with the Appellate Division and ratifies the United States Supreme Court’s reasoning in Dickerson, 508 U.S. at 375. The Court holds that contraband found during the course of a lawful pat down may be seized without a warrant if the officer “feels an object whose contour or mass makes its identity immediately apparent.” Dickerson, 508 U.S. at 375. Because immediate tactile recognition of contraband is necessary to justify any subsequent search for and seizure of the contraband, moreover, the “plain feel” exception is compatible with the Strip Search Act

requirement “that all elements justifying [the strip search] be in place before the search occurs.” Harris, 384 N.J. Super. at 51 (emphasis added). (pp. 15-18)

5. Here, Laboy lawfully pulled Evans over for suspected trespassing on hotel property that was a known hotbed for prostitution and drug activity. Evans had an active warrant for his arrest. Laboy was required to arrest Evans regardless of the reason and did not have to investigate the nature of the charge. Laboy placed Evans under arrest, performed a duly authorized pat down and, therefore, was in a lawful position when he first felt the bulge. There is sufficient credible evidence in the record to support the trial court’s finding that it was immediately apparent to the officer that drugs were present. Officer Laboy’s description of a “rocklike” substance, combined with the cash he found and the officer’s “hundreds” of similar encounters, merits the application of the “plain feel” exception. Thus, the officer here met both prongs of N.J.S.A. 2A:161A-1(b), and was permitted to perform a strip search on Evans. As compared to past cases, the officer here gave sufficient detail to justify his search. Although a graphic description is not needed to qualify for the plain-feel exception, the Court stresses that an officer must offer more detail than saying he felt contraband. The more detail, the better. The Court reverses the judgment of the Appellate Division and reinstates Evans’s convictions. (pp. 18-21)