In this archive, Dennis answers some group questions as well as provide insights on MV Violations and Wingspan Searches. Recorded on 12/12/2017.

State v Eckel 2006

We do not view Article I, Paragraph 7 as a procedural matter but as a reaffirmation of the privacy rights guaranteed to our citizens and of our duty as judges to secure them. So viewed, the Belton rationale simply does not pass muster. That is not to suggest that bright lines are not salutary, only that they cannot be the sole justification for a warrantless search. Indeed, a bright-line that remains true to an exception’s roots is a worthy consideration. In that connection, one scholar has observed:

If any bright line rule had been necessary to resolve the issue in Belton, it would have been the opposite of the rule that the Court announced ․ [O]ccupants almost invariably are removed before an automobile is searched; and once they have been removed, there is no longer much chance that they can secure weapons from the automobile or destroy evidence there.

[Albert W. Alschuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L.Rev. 227, 274 (1984).]

That is the line we draw here. Once the occupant of a vehicle has been arrested, removed and secured elsewhere, the considerations informing the search incident to arrest exception are absent and the exception is inapplicable. We thus return to Chimel and to Welsh and declare their reasoning to be the critical path to the application of the search incident to arrest exception under Article I, Paragraph 7 of our constitution. That, in turn, answers the open issue in Pierce.

Obviously, where a defendant has been arrested but has not been removed and secured, the court will be required to determine, on a case-by-case basis whether he or she was in a position to compromise police safety or to carry out the destruction of evidence, thus justifying resort to the search incident to arrest exception.

In Michigan v. Long, 103 S. Ct. 3469 (1983), the Court established the right of an officer to conduct a Terry-type “frisk” (protective inspection) of the passenger compartment of a vehicle stopped for a traffic violation when the officer has a reasonable and articulable suspicion that the motorist is dangerous and may gain immediate control of a weapon.MICHIGAN v. LONG | FindLaw

Nervousness & Furtive Movements.— State v. Lund, 119 N.J. 35 (1990) State v. Lund :: 1990 :: Supreme Court of New Jersey Decisions :: New Jersey Case Law :: New Jersey Law :: U.S. Law :: Justia

HELD: The Michigan v. Long rule “should be followed to protect New Jersey’s police community.” BUT, “nervousness and furtive gestures” alone, exhibited by the occupants of an automobile will not give rise to a reasonable and articulable suspicion that the driver or a passenger is presently armed and dangerous.

See State of NJ v. Daniels (1993)STATE v. DANIELS | 264 N.J. Super. 161 (1993) |