State v. EvansState v. Evans
Officer Felipe Laboy of the Vineland Police Department saw defendant Robert L. Evans drive into and out of a Days Inn parking lot and pursued him in suspicion of criminal trespass. After Laboy pulled Evans over, the officer ran a warrant check and learned that Evans had an active warrant for his arrest.
Laboy placed Evans under arrest and patted him down. Laboy found $2000 in cash in Evans's pocket and, when he reached the groin area, Laboy felt a "rocklike substance." Based on his experiences with narcotics and knowledge of where drugs are
Evans sought to suppress the evidence found in the pat down and search. The trial court found Officer Laboy's testimony credible and denied the suppression motion.
The Appellate Division reversed in a published opinion. State v. Evans,
We find that 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
I.
A.
The following facts are largely derived from Officer Laboy's testimony at the suppression hearing. On January 4, 2012, Laboy began his evening shift by compiling a computer-generated list of outstanding warrants in the area. 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.
Just after midnight, Laboy saw Evans back his car into a space in the Days Inn parking lot and recognized him from a prior arrest and from a recent circulation of Evans's photo in connection with potential trespassing. 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 told Evans to get out of the car and placed him under arrest for the outstanding warrant, as well as for trespassing at the Days Inn. The officer 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. Evans denied there was anything present.
Because a more invasive search would require exposing Evans's underwear, Laboy contacted his supervisor to authorize a strip search. A sergeant arrived on the scene, and gave Laboy permission to transport Evans back to the station for a strip search.
At the station, Laboy took Evans into a small room with another officer present. He unbuckled Evans's pants and reached into his jeans. Evans's underwear was not removed, nor were his private parts exposed. 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
B.
In March 2012, a Cumberland County grand jury charged Evans with second-degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5(b) (count one); third-degree possession of heroin, contrary to N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1) (count three); second-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(2) (count four); third-degree possession of heroin with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3) (count five); fourth-degree possession
Evans sought to suppress the evidence as a violation of the Strip Search Act, N.J.S.A. 2A:161A-1, which requires probable cause and an exception to the warrant requirement to conduct a strip search. Evans also argued that Laboy had a duty to determine the subject of the warrant before arresting him.
The motion 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,
Following a jury trial, Evans was convicted on all charges. In April 2015, he was sentenced to forty years of incarceration with a twenty-year parole disqualifier.
On appeal, Evans argued that "plain feel" was not a valid exception to the warrant requirement under the Strip Search Act. In a published opinion, the Appellate Division reversed the denial of the suppression motion and vacated Evans's conviction. Evans,
The panel found that Laboy had probable cause to suspect Evans had contraband in his pants and noted that the "plain feel" doctrine is a viable exception to the warrant requirement. However, the panel disagreed with the trial court's finding that Laboy acted reasonably in performing the strip search on Evans.
The panel focused on prong two of N.J.S.A. 2A:161A-1(b), which allows police to strip search a defendant if there is probable cause that a weapon or contraband is present "and a recognized exception to the warrant requirement exists." Citing Dickerson,
The panel found Laboy's remarks conclusory, noting that he did not articulate "specific facts [to] support his assertion that the nature of the contraband was immediately apparent." Evans,
The panel also found that the record lacked support for "a finding that the character of the bulge was immediately apparent
The State sought certification from this Court, which we granted.
II.
The State urges us to reverse, arguing that the officer complied with the two requirements to execute a strip search under N.J.S.A. 2A:161A-1(b). Specifically, the State advocates that Laboy had sufficient probable cause based on the "rocklike" bulge concealed in Evans's pants, as well as Laboy's experience, to believe the bulge was contraband. Turning to the second prong, the State argues it was immediately apparent to the officer that the bulge was contraband under the "plain feel" exception, which should apply to the Strip Search Act.
The State also warns of the drastic impact the Appellate Division opinion could have on law enforcement and argues that the published opinion creates a heightened standard for the "plain feel" exception. Last, the State notes the officer had no obligation to inquire into the reason behind the outstanding warrant.
Evans does not dispute probable cause. He argues, however, that the "plain feel" exception should not apply to a strip search in light of subsection (b) of the Strip Search Act. Evans emphasizes that the statute provides broader protections than the Federal Constitution and that allowing the "plain feel" exception would undermine the intent of the Legislature.
Further, Evans alleges that the officer had an affirmative duty to ascertain the reason behind the search warrant. He argues that it was inappropriate to conduct a strip search during an arrest for an active bench warrant for the failure to pay a traffic fine.
III.
A.
An appellate court reviewing a motion to suppress evidence must uphold the factual findings underlying the trial court's decision, so long as those findings are "supported by sufficient credible evidence in the record." State v. Elders,
B.
Evans challenges the police's use of a strip search as a violation of the protections
The Legislature defined a strip search as "the removal or rearrangement of clothing for the purpose of visual inspection of the person's undergarments, buttocks, anus, genitals or breasts." N.J.S.A. 2A:161A-3(a). 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. State v. Smith,
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. Arizona v. Gant,
C.
The United States Supreme Court has accepted an officer's "plain feel" of contraband as an exception to the warrant requirement.
Conceptually, the Court ratified a "plain feel" exception for "cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search."
The Dickerson Court held that contraband found through "tactile discoveries" may be seized without a warrant because consulting "a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment."
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.
[Id. at 375-76 ,(emphases added).] 113 S.Ct. 2130
Although it recognized the exception, the Dickerson Court held that it could not apply under the facts of that case because it was not "immediately apparent" to the officer there that contraband was present.
In State v. Jackson,
In Toth, however, 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.
IV.
A.
In light of the Appellate Division's recognition of the "plain feel" exception, police have relied on the doctrine for some time. We agree with the Appellate Division and ratify the United States Supreme Court's reasoning in Dickerson,
We hold that, similarly, "tactile discoveries of contraband" may justify a warrantless search under certain circumstances. Specifically, 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,
B.
Having recognized the "plain feel" exception to the warrant requirement, we now consider whether it justifies the strip search involved in this case.
Regarding the officer's vantage, Laboy lawfully pulled Evans over for suspected trespassing on hotel property that was a known hotbed for prostitution and drug activity. The officer consulted his open warrants list and confirmed that Evans had an active warrant for his arrest. Evans argues that the officer overreached because the warrant was only for the failure to pay an outstanding traffic fine. That view discounts Laboy's deference to magistrates who have dutifully authorized a warrant. See State v. Jones,
After determining that Evans had an active warrant, Laboy placed Evans under arrest and performed a pat down. That search
Next, we must examine whether it was immediately apparent to Laboy that the bulge was contraband. We disagree with the Appellate Division's rejection of the trial court's finding that it was "immediately apparent" to the officer that Evans possessed a controlled substance.
Based on the officer's credible testimony, we know that Laboy noticed a bulge in the groin area. When he patted down Evans, he found $2000 in cash and felt a "rocklike substance." In his experiences as a narcotics officer, who had witnessed concealed contraband in the groin area "hundreds of times," the location of the bulge was important to his conclusion. Based on his observations and experiences, Laboy concluded that what he felt was crack cocaine.
We find that those facts offer "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. See Elders,
In sum, Officer Laboy had probable cause to suspect drug activity was present. He executed a lawful search incident to an arrest and, based on his "plain feel" of the bulge, the finding of the cash, and his experience, it was immediately apparent to him that the "rocklike" substance he felt was crack cocaine. As we now recognize the "plain feel" exception, we determine that Laboy complied with the mandates of N.J.S.A. 2A:161A-1(b), and was authorized to perform a strip search on Evans.
V.
Accordingly, we reverse the judgment of the Appellate Division and reinstate Evans's convictions. The matter is remanded to the Appellate Division for consideration of Points II and VI, as enumerated in the panel's opinion, which the panel did not reach in light of its resolution of the suppression issue.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and TIMPONE join in JUSTICE FERNANDEZ-VINA's opinion.
Notes
Terry v. Ohio,
In his Appellate Division brief, Evans cites State v. Smith,
Once again, the parties do not challenge that, following Evans's furtive actions in the hotel parking lot and a positive warrant hit, Laboy was justified in pulling him over. Further, probable cause was readily apparent here and is undisputed.